Our Executive Doesn't Torture

Fifteenth of 25 excerpts from The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals by Jane Mayer:

On April 28, 2004, the day the Abu Ghraib photos reached the world, the nine [Supreme Court] justices heard the consolidated case of Hamdi and Padilla. These were the two U.S. citizens held as enemy combatants whom Jack Goldsmith and the other lawyers from the Bush Administration had observed in military brigs a year and a half earlier. They were still being held in extreme isolation, without charges or judicial review. Their defense counsel argued that they needed to be given some legal process in which they could challenge their detention. Deputy Solicitor General Paul Clement, however, argued for the government that the executive branch had the authority to detain them indefinitely, until the end of hostilities, in conditions of the President's choosing.

In a strikingly perceptive string of questions, the justices asked Clement what would prevent the President from ordering torture. . . . Justice Ruth Bader Ginsburg pushed him further. "Suppose the executive says that mild torture will help get this information?" she asked. "It's an executive command. Some systems do that to get information."

Clement retorted, "Well, our executive doesn't."

Copyright 2008 by Jane Mayer. All Rights Reserved