The Nine [128]
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