Monday, May 10, 2004
As Kos points out, at the time of the oral arguments the government knew about the Abu Ghraib abuses. They have now lied to the Supreme Court. See this letter from the WaPo:
Fallout From Abu Ghraib
Friday, May 7, 2004; Page A32
By requesting that CBS delay its report on prisoner abuses at Abu Ghraib by two weeks [news story, May 4], Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff, deprived the country of a full and forthright oral argument before the Supreme Court on the rights of U.S. citizens whom the government has detained as "enemy combatants."
Oral argument in those cases, Hamdi v. Rumsfeld and Padilla v. Rumsfeld, ended about noon April 28. CBS aired the report eight hours later. Had the report aired the previous week, the government's responses to certain questions at oral argument would certainly have been different. Specifically, it would have been clear what abuses could be perpetrated under the government's theory that "enemy combatants" have no rights.
As it happened, the justices asked Principal Deputy Solicitor General Paul D. Clement what in the law would check the executive branch from torturing prisoners. He responded that the government would honor its obligations under the "convention to prohibit torture and that sort of thing."
He also explained that as a practical matter torture is not the best means of extracting information from prisoners, because one "would wonder about the reliability of the information you are getting"; the "way you get the best information from individuals is that you interrogate them, you try to develop a relationship of trust. . . ." Mr. Clement said that it is "the judgment of those involved in these processes, that the last thing you want to do is torture somebody." He concluded in response to a question about checks on the executive branch's authority to engage in torture: "You have to recognize that . . . where the government is on a war footing, you have to trust the executive. . . ."
As the abuses at Abu Ghraib show, one cannot simply trust the executive branch to protect human rights under U.S. criminal law, the Constitution and the Geneva Conventions. For the sake of our security and for the protection of human rights everywhere, we believe the court should agree.
JAMES F. FITZPATRICK
The writer, a partner at the law firm Arnold & Porter, filed friend-of-the-court briefs with the Supreme Court in the Hamdi and Padilla cases on behalf of Global Rights, a Washington-based international human rights group that he chairs.