Just after 10 o'clock on the morning of April 28, a Justice Department attorney representing Secretary of Defense Donald Rumsfeld appeared before the Supreme Court to argue that the Bush administration is free to imprison a U.S. citizen for as long as it likes -- without a lawyer, without a hearing, without any contact with the outside world -- based solely on the president's determination that the citizen is an "enemy combatant" in the war on terror.
When skeptical justices asked about the risk that a detainee might be abused while in custody, Deputy Solicitor General Paul Clement told them they must "trust the executive to make the kind of quintessential military judgments that are involved in things like that." The government's interrogators understand that information obtained through coercion may be unreliable, Clement said, and they know that "the last thing you want to do is torture somebody or try to do something along those lines."
When Justice Ruth Bader Ginsburg noted that some governments engage in "mild torture" to obtain information, Clement shot back: "Well, our executive doesn't."
By the end of the day, the world had seen evidence to the contrary.
Just eight hours after Clement assured the Supreme Court that the United States would honor its legal obligation to refrain from "torture and that sort of thing," CBS aired photographs of U.S. soldiers abusing Iraqi prisoners to "soften them up" for interrogation at Abu Ghraib. The New York Times subsequently reported that the Bush administration has authorized the CIA to use interrogation techniques on suspected al-Qaida members so "severe" that the FBI has distanced itself from the interrogations to avoid "compromising" agents. And this weekend, Seymour Hersh reported in The New Yorker that Rumsfeld himself authorized the expansion into Iraq of a black-box program of physical coercion and sexual humiliation originally approved for use only in the hunt for al-Qaida in Afghanistan.
Whatever the truth of the latest Hersh report -- the Pentagon has already labeled it "outlandish, conspiratorial and filled with error and anonymous conjecture" -- the disconnect between Clement's words and the government's actions has raised serious questions about the trust to which the Bush administration claims to be entitled.
Did Clement know he was misleading the justices, or was he kept out of the loop so that he could avoid revealing truths that would undermine the administration's "trust us" arguments in the enemy combatant cases? Did Joint Chiefs of Staff Chairman Richard Myers persuade CBS to delay broadcasting the photographs from Abu Ghraib to protect the lives of U.S. soldiers -- or to spare the administration embarrassing questions during the Supreme Court arguments in the enemy combatant cases?
If U.S. soldiers and CIA agents are meting out abuse -- "mild torture" -- to random Iraqi prisoners in Abu Ghraib and suspected al-Qaida members elsewhere, what is the government doing to Jose Padilla, Yaser Hamdi and any other U.S. citizens it may be holding as enemy combatants? And if the Bush administration can't be trusted to tell the Supreme Court the truth about its interrogation techniques, how can it be trusted with the power to detain U.S. citizens indefinitely, without any oversight from the courts?
Paul Clement has what the Washington legal newspaper Legal Times calls a "perfectly appointed conservative résumé." And indeed, before Attorney General John Ashcroft appointed him to the No. 2 job in the Solicitor General's Office, Clement had built a career as a well-connected insider in Washington's Republican legal circles.
After graduating from Harvard Law School, Clement clerked for Laurence Silberman -- the controversial D.C. Circuit judge Bush has appointed to head the inquiry into pre-war intelligence on Iraq -- and then for Supreme Court Justice Antonin Scalia. He took a job working for Kenneth Starr at Kirkland & Ellis in Washington, but missed the chance to work under him when Starr left to become the Whitewater (and later Monica Lewinsky) independent counsel. He later worked for John Ashcroft in the U.S. Senate, then returned to private practice at King & Spaulding, where he collaborated on legal briefs that took the side of the Republicans in the Supreme Court case of Bush vs. Gore.
As the principal deputy solicitor general, Clement has been assigned to oversee the Bush administration's most critical terrorism-related cases. Having argued the cases of alleged "20th hijacker" Zacarias Moussaoui in Virginia and alleged dirty-bomb plotter Jose Padilla in New York, Clement was a natural choice to appear on behalf of Rumsfeld when the Supreme Court took up the cases of Padilla and his fellow "enemy combatant," Yaser Hamdi, in April.
The question is, what did Clement know when he climbed the steps of the Supreme Court building on the morning of April 28? Did he know what his client knew -- that the Department of Defense was investigating grave abuses at Abu Ghraib, that the brigadier general in charge of the prison had already been removed from her post? Did he know what his client's staff knew -- that Joint Chiefs chairman Myers had been working to keep CBS from broadcasting photographs of the abuse? Or did he know what the New York Times says some of his colleagues at the Justice Department knew -- that the Bush administration, with the approval of the Justice Department, had instituted policies allowing the CIA to use "severe" interrogation techniques on detainees suspected of being high-level al-Qaida members?
The Justice Department won't say. An employee in Clement's office referred a call from Salon last week to Justice Department spokesperson Monica Goodling. Asked what Clement or Ashcroft knew of the Abu Ghraib situation at the time of oral arguments in the Hamdi and Padilla cases, Goodling said: "We wouldn't have any comment." Pressed further, Goodling said the Justice Department would not have any comment at all about the Padilla or Hamdi cases.
Jenny Martinez, the Stanford Law School professor who represented Padilla in the arguments before the Supreme Court on April 28, says there are just two ways to explain Clement's representations to the court. "When Mr. Clement said to the court that we wouldn't engage in that kind of behavior, either he was deliberately misleading the court or he was completely out of the loop. Either one would be disturbing when the government's main argument is 'trust us.'"
Lawyers involved in the Padilla case and others who are watching it carefully tend to believe that the latter explanation is the right one. Clement has a reputation as a straight shooter, and they say it's unlikely that he would have misled the court intentionally.
Even James Fitzpatrick, the Washington lawyer who first called attention to Clement's comments in a May 6 letter to the Washington Post, told Salon he has "no reason to think" that Clement was "dissembling." Although Fitzpatrick argues that Gen. Myers "deprived the country of a full and forthright oral argument before the Supreme Court" by successfully delaying CBS's broadcast of the Abu Ghraib photographs, he does not lay the blame at the door of Clement or his colleagues in Ted Olson's Solicitor General's Office. "The guys in the S.G.'s office are of unimpeachable integrity," Fitzpatrick said. "It's highly unlikely that information [about Abu Ghraib] would have come across their path."
Still, it's hard to imagine that someone as dialed in as Clement is -- someone so well connected, someone so immersed in the legalities of the war on terror, someone with such a reputation for immersing himself in the facts of the cases he handles -- could have been so clueless about the government's interrogation practices and policies, especially as the Pentagon was scrambling to deal with the damning report on Abu Ghraib prepared by Maj. Gen. Antonio Taguba.
"If what we're to believe is that the Solicitor General's Office was not aware of the existence of a Pentagon report that was floating around at the highest levels of government months before oral argument, a report that said that the United States was engaging in torture -- well, that's not a good answer," said Deborah Pearlstein, a lawyer for Human Rights First.
Eric Muller, a former federal prosecutor and University of North Carolina law professor, said he believes that there's enough information in the record now to warrant a congressional inquiry into whether Clement made a "knowingly or recklessly false assertion to the United States Supreme Court in order to bolster the government's legal position" in the enemy combatant cases.
Muller made his call for an investigation in an entry in his blog last week, setting off a small but fast-growing brushfire in the closely linked legal blogosphere. Some writers have leapt to Clement's defense, arguing that when he assured the court that "our executive" doesn't engage in what Justice Ginsburg called "mild torture," Clement was suggesting only that the practices the administration has approved do not meet a narrow legal definition of "torture," at least as the word has been interpreted by the Justice Department.
Muller doesn't buy it. "In a response to a question from Justice Stevens, Clement gave assurances not just that the executive wasn't engaged in torture as it might be legally or technically defined, but that the government wasn't engaged in torture 'or that sort of thing,' and he said the government wouldn't want to 'torture somebody or try to do something along those lines,'" Muller told Salon. "It's quite clear to me that Clement was not subjectively, in that moment, speaking of some narrowly defined legalistic concept called 'torture.' He was referring to a more ordinary, everyday, pedestrian use of 'torture' as 'really nasty, brutal, unseemly interrogation practices.'"
Muller's broader definition of "torture" would presumably be expansive enough to cover the "severe" interrogation tactics the Times says the administration -- with Justice Department approval -- has authorized for suspected al-Qaida members. According to the Times, those practices include something called "waterboarding" -- a process by which a detainee is strapped to a board, held underwater and made to believe that he'll drown if he doesn't give interrogators the information that they want.
A "pedestrian" definition of "torture and that sort of thing" would also encompass the abuse U.S. soldiers visited upon Iraqi prisoners at Abu Ghraib. Indeed, many in the human rights community say that the Abu Ghraib abuses fit even a narrow, legalistic definition of torture. "This is torture with a capital 'T,'" said Pearlstein, the Human Rights First attorney. "You can't strip somebody naked, strap wires to him, and sic angry dogs on him under any definition of torture -- under U.S. law, under international law or otherwise."
Of course, the justice didn't know enough to ask Clement about Abu Ghraib on April 28 because Gen. Myers had, until then, persuaded CBS to delay broadcasting photographs of the abuse that took place there. Muller wants to know more about Myers' efforts, and who was involved in them. Myers told the Senate Armed Services Committee that, while he worked with Rumsfeld's staff on efforts to delay the CBS broadcast, he did not discuss the issue with Rumsfeld himself. But did he discuss his efforts with anyone in the Justice Department? Did he act with an eye toward the upcoming Supreme Court arguments?
"I would be damned curious," Muller said. "For the military to do that at the same time they've got the Padilla case pending is deeply troubling. If someone at Justice knew, or if someone at OLC had been told that the military was going to ask for a delay, that's scandal material right there. There you've got Justice manipulating the Supreme Court."
In the end, it's not clear that such manipulation would have helped the administration's cause. Indeed, there's a chance it will backfire now. "If the theory was, 'Let's delay this until after the argument, and that's going to make a difference,' then that was clearly wrong," said Elliot Mincberg of People for the American Way. "The justices read the newspapers and watch television, and they're clearly going to know about this."
They already do. Justices Anthony Kennedy and Sandra Day O'Connor met with a panel of Iraqi judges in the Netherlands earlier this month, and they said afterward that they had conveyed to the Iraqis -- subtly, for fear of exposing any bias in court-martial cases to come -- their concern over the Abu Ghraib abuses. In a follow-up interview with the Associated Press, Kennedy said the Iraqi judges "innately knew, instinctively knew, how concerned we were" about what happened at Abu Ghraib.
The question now is whether that concern will spill over into the court's decisions in the cases of Jose Padilla, Yaser Hamdi and the detainees currently being held at Guantánamo Bay. The conditions of confinement and the techniques used in interrogation aren't directly at issue in these cases; indeed, the lawyers challenging the administration's policies don't have enough information about their clients' situations to make meaningful arguments about the way they've been treated.
Donna Newman has represented Padilla for more than two years now. But ask her today whether he has been abused while in military custody, and she'll tell you she has absolutely no idea. "I don't know, and neither does anyone else," Newman told Salon last week. "I don't mean to suggest that Mr. Padilla has been abused. But the thing is, I just don't know."
Newman met with her client when he was in civilian custody, before he was declared an enemy combatant and swept away into a Navy brig in June 2002. In the ensuing year and half, the Department of Defense denied Newman any contact with Padilla. Early this year, when Padilla's case was pending before the Supreme Court, the Department of Defense finally allowed Newman and her co-counsel, Andrew Patel, to meet with Padilla -- largely as window dressing for the Supreme Court, and even then only with a Department of Defense lawyer in the room and a video camera running.
Among the conditions the Department of Defense imposed on the meeting: "We were prohibited from asking him about the conditions of his confinement," Patel says.
By barring Padilla's lawyers from asking about the conditions of his confinement, the Department of Defense prevented them from gathering information they might need to protect him. By failing to inform the Supreme Court about the abuses at Abu Ghraib and the interrogation policies the administration has adopted, the Justice Department -- inadvertently or intentionally -- prevented the justices from possessing information highly relevant to the question of just how much they should trust the administration.
In the words of the Bush administration, none of that really matters. As Clement told the Supreme Court on April 28, "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."
When the Supreme Court begins handing down decisions this summer, the executive will learn if the judicial branch agrees.