The Iraqi Prisoner Abuse Scandal:
It Shows Why the Court Must Decide In Favor of Judicial Review in the Guantanamo Cases

By EDWARD LAZARUS
Thursday, May. 13, 2004

As is evident from the frantic positioning of Republican and Democratic politicians, the scandal arising from the abuse of Iraqi prisoners is likely to have far-reaching political consequences. Less obvious, but no less important for the long-term, are the legal consequences that may well flow from the military's unconscionable treatment of those it has taken into custody.

Right now, the Supreme Court has before it the cases involving the Al Qaeda suspects detained at the Guantanamo Naval Base in Cuba -- as well as the two American citizens, Yaser Hamdi and Jose Padilla, being held on U.S. soil. These cases raise a historic question: Can the Executive Branch unilaterally designate these detainees as "enemy combatants"; hold them indefinitely without charging them with any crime; fail to treat them as prisoners of war; and refuse them access to counsel - all without the possibility of review by the judiciary?

After the Iraqi prisoner abuse revelations, the prospect of this kind of unreviewable detention is all the more frightening. Even with military court-martial a possibility, the Iraq abuses occurred. Without any court watching, what will happen in U.S. prisons, run by our country in our name?

What limits will be placed on what can be done? The answer may well be: Only the ones upon which our courts, interpreting our Constitution insist. And the courts can only insist, if they have jurisdiction to inquire.

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.

Making Already High Stakes Even Higher: The Guantanamo Cases

As I noted in a prior column, when the Supreme Court first decided to review the detention of the Guantanamo prisoners, it has always been clear that the stakes in these cases were monumental.

The Bush Administration has taken the position that the Executive may incarcerate anyone, even citizens, for an indefinite time, without meaningful judicial review -- so long as the Executive, in its discretion, designates those persons "enemy combatants." That position is an unprecedented claim of Executive power -- and one that strikes at the heart of the Constitution's system of checks and balances.

Going back to before the Magna Carta, such detentions have posed the risk of both mistaken imprisonment, and the mistreatment of prisoners. Protecting against such evils is the very purpose of the ancient writ of habeas corpus by which a prisoner may challenge the legality of his or her detention.

For that reason, I described the Guantanamo cases in my previous column as the kind that define as the soul of a nation and its institutions.

In light of the torture of Iraqi prisoners, it is now even more important that the Supreme Court definitively reject the Administration's claim of unbridled power. After all, the Administration's position always boiled down to the idea that the Executive could be "trusted" to handle the detainees fairly and appropriately.

That notion lies in tatters now -- rebutted by pictures so awful, we find them difficult to bear, and feel a national shame at the acts to which they testify. If the Court accepts the Administration's "just trust us" argument even after all the grisly instances of Executive Branch misconduct that have recently emerged, then it will be guilty of a moral as well as legal abdication of catastrophic magnitude.

Oral Argument In Padilla: A Lie About Torture Undermines A Bid For Trust

At oral argument in Padilla v. United States, Justice Ruth Bader Ginsburg recognized the centrality of the risk of prisoner mistreatment to the issues raised in the case. She saw that absent a judicial check on the power of the Executive to detain prisoners, and sequester their cases from judicial scrutiny, abuses could occur.

As Justice Ginsburg pointed out, some regimes (though not ones the United States seeks to emulate) use torture to obtain intelligence information. "Suppose," she asked Deputy Solicitor General Paul Clement, who was arguing the Administration's position before the Court. "the Executive says 'mild torture, we think, will help get this information?'"

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." (Emphases added).

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.)

At the time Clement answer, his client -- the Department of Defense -- had known about the torture of Iraqi prisoners for months. Nevertheless, DOD let its lawyer argue before the Court while he was blind to a fact of obvious relevance -- and to therefore unknowingly lie to the Justices of the Supreme Court of the United States.

This lie to the nation's highest tribunal, too, ought to be laid at Secretary Rumsfeld's door by those who call for his resignation.

Why the Court Cannot Trust the Executive Branch to, In Effect, Review Itself

But mightn't the Iraqi prisoner abuse be an aberration? Can't we generally trust the Executive Branch? The answer is: Absolutely not. Not only actual evidence, but structural analysis, testifies to the fact that without judicial review, abuses will inevitably occur, be covered up, and remain unremedied.

The "Executive Branch" is a label for an enormous web of bureaucracies, all ultimately responsible to the President. Naturally, the actions of the Executive Branch, both good and bad, inevitably reflect the limitations and weaknesses inherent in any far-flung human enterprise.

Such human institutions respond to pressure. And pressure creates both errors and sins.

The War on Terror exerts enormous pressure on the Executive Branch. Its invocation has sent the U.S. military to distant lands to fight an ill-defined foe, amid a civilian population whose language and culture most soldiers do not comprehend.

Under the circumstances, it should come as no surprise that the military detains lots of Afghanis and Iraqis who pose no legitimate threat to the United States. (Indeed, Red Cross estimates suggests that the overwhelming majority of Iraqi prisoners were imprisoned by mistake.)

Nor should it come as a surprise that, in order to obtain vital intelligence from detainees, the military and other law enforcement have crossed the line of lawful interrogation. It should even be no surprise that, while detaining a large number of ethnically distinct and often uncooperative prisoners, some considerable number of individuals have exhibited the unfortunate human tendency towards cruelty and even sadism.

Bureaucracies, however, are not inclined to admit mistakes or problems, and especially not ones that are highly embarrassing. Bureaucracies cover up, sweep under the rug, ignore, or bury.

This natural tendency, moreover, is dramatically enhanced when partisan politics are added to the mix. No President in the midst of a bitter re-election campaign (or at any time, for that matter) wants to admit problems within the agencies under his purview -- nor, typically, do any of his underlings. Note that Richard Clarke, who has stepped down, feels he can apologize for mistakes and omissions that led to 9/11; but those still in office plainly feel they cannot.

Everything we know about the conduct of the War on Terror confirms this view of the Executive. No one within the Executive wanted to own up to the glaring weaknesses in our pre-9/11 intelligence gathering. No one within the Executive wanted to own up to having detained many, many innocent civilians -- in Iraq, in Afghanistan, and even in the United States, through the sweeping detention of noncitizens after 9/11. (As Anita Ramasastry has described, this detention has now been well-documented, and admitted at least by the Office of the Inspector General.)

No one wanted to own up to prisoner abuse - and now, in a classic act of self-preservation, this abuse is attributed to just a few "bad apples."

Why the Iraqi Prisoner Abuses Are Directly Relevant to the Cases Before the Court

So what does this have to do with Padilla, Hamdi, and the Guantanamo detainees? Everything.

The framers of our Constitution understood the risk of abuse of power within every branch of government, and the inability of each branch to police those potential abuses itself. That is why they created the scheme of checks and balances. And that is why they created an independent federal judiciary (life-tenured, with a fixed salary) that could not be swayed, or tempted away from enforcing Constitutional rights when the other branches infringed them.

There are no principle more fundamental to our Constitution -- or more responsible for separating our own Constitution from those of many other countries around the world that have proven to be glorious but worthless declarations of rights -- than these: An independent judiciary with the power of judicial review. A system that prevents abuse of power by dividing it.

If the Supreme Court exempts the Administration from the essential structure of the Constitution -- in the face of gruesome evidence from Iraqi prisons vindicating that very structure -- then more will have been lost in Iraq than even the terrible price of our people's blood. We will have lost ourselves.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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