# Will Abu Ghraib revelations affect the S. Court's ruling on extra-judicial detainees? **URL:** \ **Category:** Great Debates\ **Created:** [May 14, 2004, 3:31pm UTC](https://boards.straightdope.com/t/will-abu-ghraib-revelations-affect-the-s-courts-ruling-on-extra-judicial-detainees/245121 "2004-05-14T15:31:35Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Apos](https://avatars.discourse-cdn.com/v4/letter/a/838e76/32.png) [@Apos](https://boards.straightdope.com/u/Apos)\ **Post date:** [May 14, 2004, 3:31pm UTC](https://boards.straightdope.com/t/will-abu-ghraib-revelations-affect-the-s-courts-ruling-on-extra-judicial-detainees/245121/1 "2004-05-14T15:31:35Z")
This seems like a pretty pertinent question, considering that many of the questions that were asked in oral arguments concerned issues of what the U.S. might be involved in doing to these “outside the law” human assets it acquired. Kevin Drum points out one interesting example along these lines: > [@](#): > > JUSTICE RUTH BADER GINSBURG: Suppose the executive says, “Mild torture, we think, will help get this information?” It’s not a soldier who does something against the code of military justice, but it’s an executive command. Some systems do that to get information. > > A. Well, our executive doesn’t, and I think - I mean. > > Q. What’s constraining? That’s the point. Is it just up to the good will of the executive? Is there any judicial check? > > A. This is a situation where there is jurisdiction in the habeas courts. So if necessary, they remain open. But I think it’s very important - I mean, the court in Ludecke v. Watkins made clear that the fact that executive discretion in a war situation can be abused is not a good and sufficient reason for judicial micromanagement and overseeing of that authority. > > You have to recognize that in situations where there is a war - where the government is on a war footing - that you have to trust the executive to make the kind of quintessential military judgments that are involved in things like that. Well, as we now know, mild torture and making the prisoner think we are going to kill him (which qualifies as torture under out own laws) were indeed authorized for just such a use by the CIA and Justice Department for high level Al Qaeda people thought to have critical information. > [@](#): > > In the case of Khalid Shaikh Mohammed, a high-level detainee who is believed to have helped plan the attacks of Sept. 11, 2001, C.I.A. interrogators used graduated levels of force, including a technique known as “water boarding,” in which a prisoner is strapped down, forcibly pushed under water and made to believe he might drown. > > These techniques were authorized by a set of secret rules for the interrogation of high-level Qaeda prisoners, none known to be housed in Iraq, that were endorsed by the Justice Department and the C.I.A. > **[THE STRUGGLE FOR IRAQ: DETAINEES; Harsh C.I.A. Methods Cited In Top Qaeda...](https://www.nytimes.com/2004/05/13/world/struggle-for-iraq-detainees-harsh-cia-methods-cited-top-qaeda-interrogations.html)** > > Central Intelligence Agency's use of coercive interrogation methods against some high-level leaders and operatives of Al Qaeda produces concern inside agency about abuse; at least one agency employee reportedly has been disciplined for threatening... At first blush, as Drum notes, this would imply that the Solicitor General was either ignorant of the policies he was arguing for, or he outright lied to the Supreme Court about what our executive would and has authorized. (I can just see it now: "George Bush: “Look, this isn’t the George Bush I know. It’s another George Bush that doesn’t live up to the ideals of the real George Bush. Just because I DID in fact authorize something, doesn’t mean I WOULD authorize it, that it’s in my character to do something like that.”) However, I can think of several twists on this: what if the executive, for instance, was personally involved in or informed about such implementation decisions, per se. How far does it have to go down the chain of command before authorizing torture is just an accidental thing and not a policy for which we should be concerned as setting a precedent? And this is just one thing for the court to consider. Will this and other questions comnig out of all the new things were are learning about our military intelligence structure and practices affect the court’s thinking on whether there should be judicial oversight on what the executive branch does to people it declares to be outside the law? ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [May 14, 2004, 3:40pm UTC](https://boards.straightdope.com/t/will-abu-ghraib-revelations-affect-the-s-courts-ruling-on-extra-judicial-detainees/245121/2 "2004-05-14T15:40:06Z")
In theory, no. Such evidence wasn’t a part of the record and wasn’t presented in court so the justices aren’t supposed to even know about it as far as this case is concerned. Or at least I think that’s the case. If after a trial has concluded and while the jury is deliberating a juror reads something in a newspaper and bases his vote on that it is a violation of the process. I would think the same thing would apply even more to a Supreme Court Justice. ---
**Author:** ![Apos](https://avatars.discourse-cdn.com/v4/letter/a/838e76/32.png) [@Apos](https://boards.straightdope.com/u/Apos)\ **Post date:** [May 14, 2004, 7:44pm UTC](https://boards.straightdope.com/t/will-abu-ghraib-revelations-affect-the-s-courts-ruling-on-extra-judicial-detainees/245121/3 "2004-05-14T19:44:03Z")
Well, but judges are not jurors, and the Supreme Court justices are about as far as you can get from normal when it comes to the usual practices of judges. The SC has never been immune to outside events, and rarely even pretends that it is, often citing them in majority and minority arguments. But note, in this case, we seem to have evidence that the testimony of the solicitor general was, at the very least, misleading. Doesn’t that factor in somehow? ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [May 14, 2004, 8:29pm UTC](https://boards.straightdope.com/t/will-abu-ghraib-revelations-affect-the-s-courts-ruling-on-extra-judicial-detainees/245121/4 "2004-05-14T20:29:27Z")
> [@Apos](#): > > Well, but judges are not jurors, and the Supreme Court justices are about as far as you can get from normal when it comes to the usual practices of judges. The SC has never been immune to outside events, and rarely even pretends that it is, often citing them in majority and minority arguments. > > But note, in this case, we seem to have evidence that the testimony of the solicitor general was, at the very least, misleading. Doesn’t that factor in somehow? Maybe. However, if outside events are going to influence them I would think that at least some of them would already have been aware of stories about conditions at Guantanamo etc. and would have questioned the Solicitor General’s claims at the time of the hearing before them. However, it sure sounds as if they took the record of the case as presented to them without any outside influence. And by the way, jurors are just as influenced by outside events as are Justices. ---
**Author:** ![Sevastopol](https://avatars.discourse-cdn.com/v4/letter/s/cdc98d/32.png) [@Sevastopol](https://boards.straightdope.com/u/Sevastopol)\ **Post date:** [May 16, 2004, 1:06am UTC](https://boards.straightdope.com/t/will-abu-ghraib-revelations-affect-the-s-courts-ruling-on-extra-judicial-detainees/245121/5 "2004-05-16T01:06:21Z")
[The Iraqi Prisoner Abuse Scandal:](http://writ.news.findlaw.com/lazarus/20040513.html) > [@](#): > > Defenders of the Administration claim that the prison abuse scandal should have no effect on the legal issues before the Court. But this is just so much nonsense. It is like asking the Brown v. Board of Education Court to ignore the effect of segregated schools. > [@](#): > > Clement did not hesitate in his answer: “Well, our executive doesn’t, and I think the fact that executive discretion in a war situation can be abused is not a good and sufficient reason for judicial micromanagement in overseeing that authority. You have to recognize that in situations where there is a war, where the government is on a war footing, that you have to trust the executive.” > > It turns out, of course, that the Executive cannot even be trusted to give a truthful answer to the Supreme Court. In fact, our executive does use torture – though Clement surely didn’t know it. (No lawyer in the Solicitor General’s office - whose main job it is to represent the federal government before the Supreme Court - would risk his or her credibility with the Justices by responding to a question with a knowing falsehood.) ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [May 16, 2004, 1:13am UTC](https://boards.straightdope.com/t/will-abu-ghraib-revelations-affect-the-s-courts-ruling-on-extra-judicial-detainees/245121/6 "2004-05-16T01:13:37Z")
It may influence their decisions but it won’t change the overall outcome. 5-4 vote will come down allowing the extra-judicial detentions at worst, 9-0 at best. That’s the way the dice will most assuredly fall. ---
**Author:** ![Sevastopol](https://avatars.discourse-cdn.com/v4/letter/s/cdc98d/32.png) [@Sevastopol](https://boards.straightdope.com/u/Sevastopol)\ **Post date:** [May 16, 2004, 1:37am UTC](https://boards.straightdope.com/t/will-abu-ghraib-revelations-affect-the-s-courts-ruling-on-extra-judicial-detainees/245121/7 "2004-05-16T01:37:53Z")
I don’t believe that. It would: - be a large and radical step, overturning 400 years of legal history. - undermine public confidence in the judiciary - surrender a core of judicial power to the executive. - support the attempt by the executive to oust the jurisdiction of the court by a device (the “Guantanamo” fictions) - contradict a number of laws written in plain english, black and white. Judges just don’t make those sorts of decisions. Instead I anticipate either: A decision affirming oversight by the judiciary absolutely; or a compromise between the executive urgency position and the strict legal enforcement of rights. Frankly however the former is more likely, it’s hard to come up with a judicial rationale for the latter other than “we think this is a good idea” and that’s hardly good enough. Remember the Judges’ role is to enforce the law, not to protect national security. I think Lazarus is right, it is absurd to think the Court could deliver a judgement accepting the “trust us” rationale, in the light of recent facts. The judiciary would be brought into disrepute by accepting that argument. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [May 16, 2004, 1:53am UTC](https://boards.straightdope.com/t/will-abu-ghraib-revelations-affect-the-s-courts-ruling-on-extra-judicial-detainees/245121/8 "2004-05-16T01:53:18Z")
The judiciary has long allowed the executive vast powers in these “martial” matters, even when they interfere with civil liberties. And plenty of lower courts have consistently overturned stuff concerning gitmo and allowed it all to progress. Here’s a website created by a Virginia attorney asserting the likelyhood that a President can get away with quite a lot in regards to martial matters overlapping on certain rights, with or without official declaration of _anything_: [http://www.lawandfreedom.com/site/constitutional/memopres.html](http://www.lawandfreedom.com/site/constitutional/memopres.html) With enough USSC court decision cites to more than satiate you, I would think. ---
**Author:** ![Sevastopol](https://avatars.discourse-cdn.com/v4/letter/s/cdc98d/32.png) [@Sevastopol](https://boards.straightdope.com/u/Sevastopol)\ **Post date:** [May 16, 2004, 4:12am UTC](https://boards.straightdope.com/t/will-abu-ghraib-revelations-affect-the-s-courts-ruling-on-extra-judicial-detainees/245121/9 "2004-05-16T04:12:55Z")
Thanks for that link. It is very interesting, although I don’t believe it give support to the Admin’s current position. For example > [@](#): > > Martial law established on such a basis destroys every guarantee of the Constitution, and effectually renders the “military independent of and superior to the civil power” – the attempt to do which by the King of Great Britain was deemed by our fathers such an offence that they assigned it to the world as one of the causes which impelled them to declare their independence. Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable, and, in the conflict, one or the other must perish. > > The writ of habeas corpus was issued. Secondly it doesn’t appear as if the particular issues in G-Bay have been litigated: Namely: The admin’s claim of it’s power to suspend normal procedures and detain without process for an unlimited time. : the admin’s power to create a zone beyond the reach of any law at all. : the claim of a right to act outside the Geneva Conventions, which are generally binding on the US govt. Overall I think the US govt is aware it’s policy hangs on a slender thread, which is why the policy takes place off-shore. I believe the telling factor is that the court will consider G-Bay a transparent device to evade USSC jurisdiction and look to the fact that it is effectively part of the US jurisdiction. Once it makes that determination a whole lot of laws and principles fatal to the admin’s case come into play. BTW did you know the admin chose it’s principal legal advisor in the policy, Olsson in part because his wife died in the WTC attack. ---
**Author:** ![Sevastopol](https://avatars.discourse-cdn.com/v4/letter/s/cdc98d/32.png) [@Sevastopol](https://boards.straightdope.com/u/Sevastopol)\ **Post date:** [May 16, 2004, 4:17am UTC](https://boards.straightdope.com/t/will-abu-ghraib-revelations-affect-the-s-courts-ruling-on-extra-judicial-detainees/245121/10 "2004-05-16T04:17:53Z")
To which I add the following: - There has been no pretence of a right under martial law. So the analogy with the earlier circumstances is not strong. Rather the case argued was that the policy is outside jurisdiction. - Secondly, a probable reason for the above is that martial law itself does require the use of military tribunals and a standard of conduct in interrogations, both of which are evidently absent. I look forward to the Court’s decision. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [May 16, 2004, 4:18am UTC](https://boards.straightdope.com/t/will-abu-ghraib-revelations-affect-the-s-courts-ruling-on-extra-judicial-detainees/245121/11 "2004-05-16T04:18:07Z")
The write up is explicitly designed to WARN US against the martial law (declared and undeclared) powers of the President. The law firm in question is one that specializes in Constitutional Law and has fairly libertarian leanings. But they point out a lot of things that just show how much power the President really has if he wishes to exercise it. And a lot of court cases showing judicial apathy or even acceptance of that power. So it’s logical to assume the stuff going on down in Gitmo isn’t all that extraordinary in terms of “violation of expected rights.” The only difference is a jurisdictional matter relating to Guantanamo Bay’s position on the map is the reason given now instead of the reasons given in the cases explored in that document. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [May 16, 2004, 7:15am UTC](https://boards.straightdope.com/t/will-abu-ghraib-revelations-affect-the-s-courts-ruling-on-extra-judicial-detainees/245121/12 "2004-05-16T07:15:41Z")
Rehnquist wrote a book about his year as a clerk at the Supreme Court. He was there during the seizure of the steel industry by Truman, which worked its way up to the Supreme Court in record time. He comments that in his opinion, the fact that it all played out politically in Washington, right in front of the justices, inevitably affected their views on the case - that they wouldn’t have been human if they had been able to ignore it. That same analysis would seem to have some relevance here. Obviously, the events at Abu Gharib aren’t right in front of the justices in the same way as the steel seizure, but they can’t have avoided seeing the images - and the political fallout in Washington. ---
**Author:** ![Sevastopol](https://avatars.discourse-cdn.com/v4/letter/s/cdc98d/32.png) [@Sevastopol](https://boards.straightdope.com/u/Sevastopol)\ **Post date:** [May 16, 2004, 7:21am UTC](https://boards.straightdope.com/t/will-abu-ghraib-revelations-affect-the-s-courts-ruling-on-extra-judicial-detainees/245121/13 "2004-05-16T07:21:40Z")
Well, we are in the fortunate position of having the SC settle this discussion soon. On Martial Law: It seems to me to have 2 characteristics that distinguish it from the G-bay cases: 1: The cases consider it a short term measure to deal with unexpected exigencies or what amounts to a civil war. 2: It doesn’t vest the sorts of absolute and unreviewed powers the administration has asserted. As I say, we’ll see what the SC says sometime soon. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [May 17, 2004, 12:15am UTC](https://boards.straightdope.com/t/will-abu-ghraib-revelations-affect-the-s-courts-ruling-on-extra-judicial-detainees/245121/14 "2004-05-17T00:15:52Z")
> [@sevastopol](#): > > Well, we are in the fortunate position of having the SC settle this discussion soon. > > On Martial Law: It seems to me to have 2 characteristics that distinguish it from the G-bay cases: > > 1: The cases consider it a short term measure to deal with unexpected exigencies or what amounts to a civil war. > > 2: It doesn’t vest the sorts of absolute and unreviewed powers the administration has asserted. > > As I say, we’ll see what the SC says sometime soon. Speaking of absolute and unreviewed powers… look no further than the USSC. ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [May 17, 2004, 1:58am UTC](https://boards.straightdope.com/t/will-abu-ghraib-revelations-affect-the-s-courts-ruling-on-extra-judicial-detainees/245121/15 "2004-05-17T01:58:04Z")
> [@Martin Hyde](#): > > Speaking of absolute and unreviewed powers… look no further than the USSC. Nonsense. The USSC has no power to enforce its decisions. “John Marshall has made his decision, now let him enforce it” comes to mind. Absolute power the court does not have. It’s not really unreviewed, either. I mean, sure, there’s no higher court, but if the politicians don’t like a decision, they can (with time) change the makeup of the court so that it decides differently. ---
**Author:** ![Martin\_Hyde](https://avatars.discourse-cdn.com/v4/letter/m/47e85d/32.png) [@Martin\_Hyde](https://boards.straightdope.com/u/Martin_Hyde)\ **Post date:** [May 17, 2004, 3:12am UTC](https://boards.straightdope.com/t/will-abu-ghraib-revelations-affect-the-s-courts-ruling-on-extra-judicial-detainees/245121/16 "2004-05-17T03:12:13Z")
That’s like a Democrat saying everything Bush does is okay because they can vote him out in four years. While it is obvious to every Democrat and leftist communist on this forum that the “damage”(their perception, not mine) that Bush has done obviously isn’t reversable immediately and painlessly via a simple election. To try and assert that being able to slowly over the course of 20-30 years change the make up of the court is a check on the USSC’s power is a naive assumption. In the American political landscape 20+ years is forever. And the “enforceability” argument is like saying Bush has no power because all of his subordinates could refuse to follow his orders. ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [May 17, 2004, 3:25am UTC](https://boards.straightdope.com/t/will-abu-ghraib-revelations-affect-the-s-courts-ruling-on-extra-judicial-detainees/245121/17 "2004-05-17T03:25:52Z")
> [@Martin Hyde](#): > > And the “enforceability” argument is like saying Bush has no power because all of his subordinates could refuse to follow his orders. :shrug: I’m not the one who made the categorical statement. Anyways, I don’t believe there’s a precedent for all presidential subordinates refusing to follow orders. There is a precedent for a president refusing to enforce a SC decision. ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [May 17, 2004, 4:02am UTC](https://boards.straightdope.com/t/will-abu-ghraib-revelations-affect-the-s-courts-ruling-on-extra-judicial-detainees/245121/18 "2004-05-17T04:02:10Z")
> [@sevastopol](#): > > I think Lazarus is right, it is absurd to think the Court could deliver a judgement accepting the “trust us” rationale, in the light of recent facts. The judiciary would be brought into disrepute by accepting that argument. They’ve already allowed themselves to be used like ten dollar whores over the matter of the 2000 election, why would they give a fuck about some Iraqi prisoners? ---
**Author:** ![Sevastopol](https://avatars.discourse-cdn.com/v4/letter/s/cdc98d/32.png) [@Sevastopol](https://boards.straightdope.com/u/Sevastopol)\ **Post date:** [May 17, 2004, 4:25am UTC](https://boards.straightdope.com/t/will-abu-ghraib-revelations-affect-the-s-courts-ruling-on-extra-judicial-detainees/245121/19 "2004-05-17T04:25:24Z")
Treating that as a serious question: The implications of the cases extend well beyond the particular detainees. The power of the Court to oversee individual liberty is the very core of its role. The system reserves to the judiciary the right to ultimately deprive people of that liberty. Surrendering that right to the executive would be the largest and most radical deviation from legal history the Court would make. It would radically re-define the Court’s role and with that the entire system. ---
**Author:** ![komrade](https://avatars.discourse-cdn.com/v4/letter/k/838e76/32.png) [@komrade](https://boards.straightdope.com/u/komrade)\ **Post date:** [May 17, 2004, 6:05am UTC](https://boards.straightdope.com/t/will-abu-ghraib-revelations-affect-the-s-courts-ruling-on-extra-judicial-detainees/245121/20 "2004-05-17T06:05:42Z")
what i found disturbing is how quick we were in abandoning “rule of law, civil liberties ect” in the war against terror, when the use of “rule of law ect” could be used to win the war against terrorism. now that we lost the moral high road i find it hard to believe anything that the administration says