The Nine (41 page)

After the Supreme Court granted cert in
Rasul
,
Hamdi
, and
Padilla
, in late 2003 and early 2004, the Bush administration began to take the cases more seriously. At last, after two years, it allowed Hamdi and Padilla to meet with their lawyers. Secretary Rumsfeld announced that the military was creating “administrative review boards” to evaluate the status of each prisoner in Guantánamo. The procedures gave the detainees no right to counsel, no right to confront the witnesses against them, and no right of appeal, but they allowed administration lawyers to say the government was at least doing something to assess whether the detainee deserved to remain in custody. The government also asserted that the prisoners had no right even to this meager procedural safeguard; it had been provided “solely as a matter of discretion and does not confer any right or obligation enforceable by law.” Mostly, the Bush position remained unchanged—that the war on terror meant that the Guantánamo prisoners deserved no rights, or even a day, in an American courtroom.

The Bush legal team, led by Ted Olson, the solicitor general, brought the same moral certainty to the Supreme Court that the Republican political operation put forth to voters. The issues were straightforward, the choices binary: the United States or the terrorists, right or wrong. Standing up to argue in
Rasul
, Olson laid the same kind of choice before the Court. “Mr. Chief Justice, and may it please the Court: The United States is at war,” Olson began with heavy portent. “It is in that context that petitioners ask this Court to assert jurisdiction that is not authorized by Congress, does not arise from the Constitution, has never been exercised by this Court.”

But if this kind of talk was intended to intimidate the justices, as it cowed so many others, the tactic did not work. Indeed, it back-fired. “Mr. Olson, supposing the war has ended,” Stevens jumped in, “could you continue to detain these people on Guantánamo?” Of course we could, Olson said. In other words, the military could detain Rasul and the others whether or not there was a war.

“The existence of the war is really irrelevant to the legal issue,” Stevens said.

“It is not irrelevant because it is in this context that that question is raised,” Olson replied weakly.

“But your position does not depend on the existence of a war,” Stevens insisted, and Olson had to concede it did not. So in just the first moments of the argument, Stevens had shown that the Bush administration was claiming not some temporary accommodation but rather a permanent expansion of its power for all time, in war or peace. And Stevens was showing further that Olson’s rhetorical flourish—“The United States is at war”—was nothing more than posturing.

The following week, on April 28, the
Hamdi
and
Padilla
cases were argued, and again the administration put forth its view of unchecked executive authority. Jose Padilla, an American citizen, had been arrested at O’Hare airport in Chicago and held indefinitely on suspicion of ties to Al Qaeda. According to the Justice Department, even though Padilla was an American citizen held on American soil, he had no right to challenge his incarceration, even if he wound up being imprisoned for the rest of his life. Paul Clement, the deputy solicitor general, asserted to the justices that Congress’s authorization of the “use of all necessary and appropriate force” following the September 11 attacks justified the unlimited detention of Padilla. In Clement’s view, the courts had no right to stop—or even hold a hearing about—Padilla’s incarceration, because he was classified as an enemy combatant.

In response, Ginsburg asked a farfetched hypothetical question to test the limits of the government’s position. “What inhibits it? If the law is what the executive says it is, whatever is ‘necessary and appropriate’ in the executive’s judgment,” she said. “So what is it that would be a check against torture?”

“Well, first of all there are treaty obligations,” Clement said, “but the primary check is that just as in every other war, if a U.S. military person commits a war crime, by creating some atrocity on a harmless detained enemy combatant or a prisoner of war, that violates our own conception of what’s a war crime and we’ll put that U.S. military officer on trial in a court-martial.”

But Ginsburg pursued the issue. “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.”

“Well,” Clement replied, his voice touched with a hint of indignation, “our executive doesn’t.”

About eight hours later, on the evening of the arguments in
Hamdi
and
Padilla
, the CBS News program
60 Minutes II
broadcast photographs of U.S. Army personnel documenting physical and sexual abuse of prisoners at Abu Ghraib prison. The photographs, which immediately became symbols of the war, showed U.S. soldiers posing beside naked Iraqi prisoners stacked in a human pyramid, as well as a prisoner who was forced to stand on a box, his head covered by a hood and electric wires apparently attached to his body. (CBS executives had withheld the report for two weeks at the request of Defense Department officials but went ahead with the broadcast when they learned that
The New Yorker
was planning a report on the subject by Seymour Hersh. The magazine story was released on May 1.) As Margulies, the lawyer for Rasul and other Guantánamo detainees, recalled afterwards, “These photos proved to be the most powerful amicus brief of all.”

The Abu Ghraib disclosure set off several months of intense public attention to the issue of torture by American personnel in Iraq and Guantánamo. The investigations revealed extensive abuse of prisoners in Iraq by low-level military personnel but, more importantly, considerable support for torture at the highest levels of the Bush administration. While the justices were preparing their opinions in
Rasul
,
Hamdi
, and
Padilla
in June 2004, the most sensational document on the subject came to light—the “torture memo.” In the summer of 2002, Alberto R. Gonzales, then the White House counsel, had asked the Justice Department to research the question of whether U.S. personnel involved in the war on terror were constrained by the federal law, which bans “cruel, inhuman, or degrading treatment” either inside or outside the United States.

The response came on August 1, 2002, from Jay Bybee and John Yoo, two senior officials who gave a virtually unrecognizably narrow definition of torture, which the law said was “severe physical or mental pain or suffering.” To these lawyers, “physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture,…it must result in significant psychological harm of significant duration, e.g., lasting for months or even years.” What was more, Bybee and Yoo said, the president had inherent authority to overrule the statute and direct any interrogation technique that he believed was necessary. By the time the torture memo was released, Bybee had already been confirmed to a federal appellate judgeship and Yoo had returned to a professorship at the law school of the University of California at Berkeley. Yoo had been a law clerk to Thomas, and several other former Thomas clerks had also played important roles in formulating the Bush administration’s legal justifications for the war on terror.

It is too simplistic to say that the disclosures about Abu Ghraib and torture policy determined the outcome of the Supreme Court’s rulings in the three terrorism cases, but it is surely true that the news had an impact. In any event, the cases turned into humiliating defeats for the administration. In
Rasul
, the main case, the Court ruled 6–3 that the Guantánamo detainees did have the right to challenge their incarceration in a U.S. district court. In
Hamdi
, the Court again ruled 6–3 that the government could not prevent an American citizen from challenging his or her detention in federal court. In
Padilla
, the Court gave the administration a purely procedural victory, ruling only that the plaintiff should have brought his case in South Carolina instead of New York.

Stevens may have given the
Lawrence
case to Kennedy and
Grutter
to O’Connor, but he wasn’t giving the
Rasul
assignment away. As for so many other men of his generation, the defining event of Stevens’s youth was his service in World War II. Stevens had been raised in comfortable circumstances; his family built and ran the Stevens Hotel, a block-long Chicago landmark that was later renamed the Chicago Hilton. Stevens graduated from the University of Chicago, Phi Beta Kappa, in 1941 and planned to go to graduate school to study Shakespeare. But on the eve of American involvement in the war, several of his professors were working as talent spotters for the navy, and they prevailed on him to sign up. Stevens did, on December 6, 1941, allowing him to joke that his enlistment prompted the attack on Pearl Harbor the following day.

Stevens served in the Pacific for four years on the staff of Admiral Chester Nimitz and won a bronze star. He did intelligence work, helping to break Japanese codes, and in later years often spoke of his pride in his service. His intense patriotism prompted the most out-of-character vote of his judicial career, when he sided with the conservatives in the famous flag-burning case of 1989. In his dissent in that case, Stevens said burning the flag was not protected by the First Amendment, because “it is more than a proud symbol of the courage, the determination, and the gifts of nature that transformed 13 fledgling Colonies into a world power. It is a symbol of freedom, of equal opportunity, of religious tolerance, and of goodwill for other peoples who share our aspirations.”

Stevens did not presume that his own service as an intelligence officer in World War II gave him the wisdom to second-guess the Bush officials’ conduct of intelligence operations at Guantánamo. But his military experience—combined with his quiet self-confidence—made him harder to intimidate on the subject of military necessity. Many of the darkest moments in the history of the Court took place when the justices deferred too much to the purported expertise of the executive branch on matters of national security. During and after World War I, the Court upheld several dubious prosecutions of political dissidents on the ground that their advocacy put the nation in danger.

Most notoriously, during World War II the justices upheld the exclusion of American citizens of Japanese ancestry from the West Coast in
Korematsu v. United States
. (Fred Korematsu himself submitted an amicus brief in support of Rasul.) Stevens knew that history and was determined not to replay it. And the disclosures that took place while the cases were pending—about Abu Ghraib and the torture memo—made the credibility of the administration’s representations to the Court much more suspect. Suddenly, it was the Bush administration itself, not the plaintiffs’ leftist lawyers, that looked outside the mainstream of legal and political opinion. For a Court majority determined never to stray too far from what the public believed, that change was crucial.

So, it turned out, was the preposterousness of the administration’s key argument in
Rasul
. Olson had maintained that the navy base in Guantánamo was really Cuban soil and to allow a lawsuit there was inviting litigation on a foreign battlefield. But as Stevens put it in his opinion, “By the express terms of its agreements with Cuba, the United States exercises ‘complete jurisdiction and control’ over the Guantánamo Bay Naval Base, and may continue to exercise such control permanently if it so chooses.” The entire
reason
that the military took the detainees to such a remote outpost was because the base offered total freedom from outside interference. Allowing lawyers to visit prisoners in Guantánamo and letting them conduct litigation offered no risk at all of escape or disruption—something that could not be said for many prisons within the United States. Even Scalia’s dissent, which was joined by Rehnquist and Thomas, could not work up much passion on the issue.

The reason for Scalia’s relative reticence became apparent in
Hamdi
, which was handed down on the same day as
Rasul
. There the repudiation of Bush’s position was even more complete, and the author of the majority opinion was O’Connor, that reliable vector for the views of most Americans. Her opinion was scathing, a testament to her growing estrangement from the Bush administration. Her impatience with pious lectures on national security was palpable: “It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.”

O’Connor had become an evangelist for the cause of judicial independence, and she used
Hamdi
to remind the administration that this Court—her Court—would never become a rubber stamp: “The position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to
condense
power into a single branch of government. We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the Nation’s citizens.” If there was any doubt what O’Connor meant, she waved the bloody shirt of one of the worst moments in the Court’s history—by citing
Korematsu
itself—to drive home her point.