When do news reports influence those in black robes?
[Editor's note: A misleading subhead on the original version has been removed.]
During oral argument in the case of alleged dirty bomber Jose Padilla, US Supreme Court Justice Ruth Bader Ginsburg posed what seemed a hypothetical question about US interrogation tactics.
"Suppose the executive says, 'mild torture we think will help get this information,' " she asked Paul Clement, the Bush administration's top lawyer in the Padilla case. "Some systems do that to get information," she added.
Mr. Clement shot back: "Well, our executive doesn't." Justice Ginsburg persisted: "Is there any judicial check?"
War is different, Clement replied. "The fact that executive discretion in a war situation can be abused is not a good and sufficient reason for judicial micromanagement," he said. "You have to trust the executive."
Within hours of this exchange, the TV news program "60 Minutes II" broadcast the first graphic images of Abu Ghraib prisoners being abused by US soldiers.
In following weeks, media coverage was dominated by alleged abuses of terror suspects by US personnel. The reports were bolstered by leaked administration memos contemplating use of coercive interrogation tactics, even torture, in the war on terror.
Not since Bush v. Gore in 2000 had the US Supreme Court found itself in the midst of a mushrooming news story at the exact moment it was deciding a major related case. At stake were potential landmark decisions defining the scope of the commander in chief's powers during wartime, and the court's own authority to enforce constitutional protections.
Many analysts predicted a close vote. But in the end, only one justice, Clarence Thomas, fully embraced the administration's "trust us" argument. The unexpected outcome has raised questions about whether revelations of Abu Ghraib and the torture memos may have tipped some of the justices against the administration.
"I suspect they did everything within their abilities to not let it influence them," says Beth Brinkman, a Washington lawyer and former clerk to Justice Harry Blackmun. "I think it's a question of whether it is humanly possible to keep it out."
The justices had already voted on the outcome of the cases before the abuse and torture allegations were reported, analysts say. But because the opinion-producing process is conducted behind closed doors, it is unclear whether any justice may have changed his or her initial vote.
"I don't think it changed the outcome in terms of who won or lost, but I do think it seriously affected the rhetoric [in the opinions]," says Thomas Goldstein, a lawyer who specializes in Supreme Court cases.
Many analysts say the justices couldn't help but notice the news coverage.
"The abuses at Abu Ghraib were just too significant to overlook," says Douglas Kmiec, a law professor at Pepperdine University Law School in Malibu, Calif. "The number of times the word 'torture' was specifically used in passages in the opinions - I don't think that is a coincidence."
In his dissent in the Padilla case, Justice John Paul Stevens issues a broad criticism of harsh interrogation techniques. Twice Stevens uses the word "torture" to describe US tactics.
"If this nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny," writes Justice Stevens, who won a bronze star while serving as a naval intelligence officer in a code-breaking unit during World War II.
In a footnote he also quotes a 1949 opinion of Justice Felix Frankfurter: "There is torture of mind as well as body; the will is as much affected by fear as by force. And there comes a point where this court should not be ignorant as judges of what we know as men."
In her plurality decision in the case of Yasser Hamdi (a US citizen detainee) Justice Sandra Day O'Connor did not specifically refer to torture, but the tone of the opinion leaves no doubt of her concern about administration tactics. "A state of war is not a blank check for the president when it comes to the rights of the nation's citizens," she writes.
If the justices were paying close attention to news developments damaging to the White House during May and June, the Bush administration gave them at least one opportunity to look elsewhere.
In early June, at the height of press reports questioning US interrogation tactics, the Justice Department conducted a highly unusual press conference. Deputy Attorney General James Comey released to the public new details resulting from the open-ended interrogation of Jose Padilla.
The clear message was that the administration's interrogation techniques - including indefinite detention - had worked and helped prevent additional terror attacks within the United States.
Mr. Comey was asked whether it was mere coincidence that the once-classified information was being released at a time when the Padilla case was pending at the high court. "I am not doing this to influence the Supreme Court," he replied.
Regardless of the motive, the press conference may have tipped the balance in that case in favor of the administration, some analysts say.
"I don't know that this is a direct correlation, but it is interesting that the Padilla case can be viewed as a partial victory for the administration," Professor Kmiec says.