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'Trust Us' Won't Do

May 12, 2004

"But if the law is what the executive says it is, whatever is 'necessary and appropriate' in the executive's judgment, ... it leads you up to the executive, unchecked by the judiciary. So what ... would be a check against torture?"


Supreme Court Justice Ruth Bader Ginsburg sharply questioned President Bush's lawyers last month about whether the secretive and indefinite detention of terrorism suspects that Bush ordered at Guantanamo Bay, Cuba, could encourage torture and mistreatment. Now, after revelations of abuse and torture at Abu Graib prison near Baghdad, the concerns of Ginsburg and other justices have become anything but hypothetical.

The image of a dead Iraqi prisoner, bloody and wrapped in plastic. Soldiers mugging for the camera amid naked prisoners. Accounts of U.S. soldiers and contractors who sexually abused male captives and raped at least one female. All this has blown a hurricane of reality into the high court's usually arid chambers. No longer can Chief Justice William H. Rehnquist and Justice Antonin Scalia, who at last month's hearing seemed to embrace the president's view of executive authority over detainees, deem torture and abuse just academic possibilities.

The court will rule soon in three cases testing the president's ability as commander in chief to suspend the Constitution and international conventions. The cases involve foreigners captured in Afghanistan and now held at Guantanamo, as well as American citizens whom the president has designated enemy combatants and ordered detained indefinitely without charges or access to lawyers. In each case, Bush's lawyers insist that judges have no power to review executive decisions. The photos from Abu Ghraib undercut their argument, if it ever had substance.

The hearing in the last of these cases ended just hours before the first photos from Abu Ghraib were broadcast. Two days later, the justices met to cast their tentative votes and begin drafting opinions.

The issue isn't whether captured Iraqis are protected by the U.S. Constitution; they aren't. But Bush promised that Iraqi prisoners would be treated humanely, consistent with the Geneva Convention, which the United States signed. They clearly weren't. The videotaped beheading of an American contractor is no less cause for horror but all the more reason for U.S. troops to abide by international standards.

What if the president says torture will yield intelligence? Ginsburg asked last month. "Our executive doesn't" do that sort of thing, replied the government's lawyer. "You have to trust the executive." The abuse at Abu Ghraib demonstrates that when the president orders the doors to any prison sealed and tells judges to look the other way, trust is too thin a reed to lean on.

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