By Warren Richey writer of The Christian Science Monitor
The Christian Science Monitor
During oral argument in the case of alleged dirty bomber Jose Padilla, US Supreme Court Justice Ruth Bader Ginsburg posed what seemed a hypothetical question about US interrogation tactics.
"Suppose the executive says, 'mild torture we think will help get this information,' " she asked Paul Clement, the Bush administration's top lawyer in the Padilla case. "Some systems do that to get information," she added.
Mr. Clement shot back: "Well, our executive doesn't." Justice Ginsburg persisted: "Is there any judicial check?"
War is different, Clement replied. "The fact that executive discretion in a war situation can be abused is not a good and sufficient reason for judicial micromanagement," he said. "You have to trust the executive."
Within hours of this exchange, the TV news program "60 Minutes II" broadcast the first graphic images of Abu Ghraib prisoners being abused by US soldiers.
In following weeks, media coverage was dominated by alleged abuses of terror suspects by US personnel. The reports were bolstered by leaked administration memos contemplating use of coercive interrogation tactics, even torture, in the war on terror.
Not since Bush v. Gore in 2000 had the US Supreme Court found itself in the midst of a mushrooming news story at the exact moment it was deciding a major related case. At stake were potential landmark decisions defining the scope of the commander in chief's powers during wartime, and the court's own authority to enforce constitutional protections.
Many analysts predicted a close vote. But in the end, only one justice, Clarence Thomas, fully embraced the administration's "trust us" argument. The unexpected outcome has raised questions about whether revelations of Abu Ghraib and the torture memos may have tipped some of the justices against the administration.
"I suspect they did everything within their abilities to not let it influence them," says Beth Brinkman, a Washington lawyer and former clerk to Justice Harry Blackmun. "I think it's a question of whether it is humanly possible to keep it out."
The justices had already voted on the outcome of the cases before the abuse and torture allegations were reported, analysts say. But because the opinion-producing process is conducted behind closed doors, it is unclear whether any justice may have changed his or her initial vote.
"I don't think it changed the outcome in terms of who won or lost, but I do think it seriously affected the rhetoric [in the opinions]," says Thomas Goldstein, a lawyer who specializes in Supreme Court cases.
Many analysts say the justices couldn't help but notice the news coverage.
"The abuses at Abu Ghraib were just too significant to overlook," says Douglas Kmiec, a law professor at Pepperdine University Law School in Malibu, Calif. …