Rumsfeld V. Padilla - Background

Background

The case was argued only two days before the Abu Ghraib prison abuse scandal was first shown to the general public in a The New Yorker article by Seymour M. Hersh (April 30), which showed digital photos taken by guards. The story was subsequently taken up by CBS and broadcast on nationwide television.

The timing of the two events is relevant for understanding political context —before the publicizing of incriminating photographs of abused Iraqi detainees, the United States was largely dominated by a political climate wherein the charge of abuse was only anecdotal —it was weighed lightly as compared to appeals for national security. Still, the rendered decision came after news of the scandal broke, and the degree to which the Abu Ghraib case had influence is speculative.

During the oral argument, Justice Ruth Bader Ginsburg asked some pointed questions of Clement — some of which directly treated the issue of abuse. An important dialogue features a comment by Deputy Solicitor General Paul Clement which denies the claim that the United States uses torture:

Justice Ginsburg

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.

Clement

Well, our executive doesn't. And I think, I mean...

Justice Ginsburg

What's constraining? That's the point. Is it just up to the good will of the executive, or is there any judicial check?

Despite damning evidence that the Solicitor General's office was less than truthful with the Supreme Court about the Bush administration's torture policies and neglect of international treaties, more in-depth research shows that while some attorneys in the Bush administration like John Yoo and John Ashcroft knew about the torture taking place at Abu Ghraib, the U.S. Office of the Solicitor General, of which Paul Clement was a part, knew very little about the Bush administration's tactics for prisoner interrogation, and knew nothing about the atrocities of Abu Ghraib.