Trust Us

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.)

- Edward Lazarus [See here and here on why, long before the release of the photos, he very well should have known his answer was misleading; thanks to Slate (Today's Papers) for the links.]

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Sanford Levinson has an excellent article on our country's selective definition of "torture" here; likewise, his Oct. 2001 essay on how civil liberties are threatened in wartime is still quite relevant. How the controversy affects an already controversial judicial nominee is discussed here. See Sen. Durbin's comments on this and Rumsfield's testimony here.

On that subject, how about Brett M. Kavanaugh, nominated to the key DC Appellate Circuit? Other than his conservative base bona fides (including, a key role in writing the Starr Report), what exactly are this under forty year old's qualifications to such a plum seat on the federal appellate bench? As Sen. Durbin asked him, doesn't he himself know deep down that he isn't ready?

Other: Pretty strong West Wing episode, but does every season have to end on violent terms? It is artistically lazy. On the other hand, recent violence in the Gaza Strip made it sadly topical.

[Entry updated with additional details. I deal with the central issue of this post and re-examine some of the stuff I discussed the last few days here.]