The Nine [129]
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