Free The Oath by Jeffrey Toobin Page A

the D.C. Circuit in Bush’s favor.) Because Roberts had already ruled on the case, he recused himself from playing a part in the Supreme Court’s deliberations. Eight justices would render the next verdict on the Bush administration’s treatment of the detainees at Guantánamo Bay.
    The case illustrated how the politics of the country affected the justices—both in the cases before them and in the conclusions they reached.
Hamdan
itself had begun in the unlikeliest of ways. After 9/11, and the Bush administration’s decision to open the facility at Guantánamo, the legal concerns of the detainees there were hardly a mainstream issue. The Pentagon assigned a handful of military lawyers torepresent the prisoners, but these unlucky counselors had few resources and little support. Then in May 2003, Air Force Lt. Col. Will Gunn, the chief defense counsel for the tribunals, received an unsolicited e-mail from Neal Katyal, a thirty-three-year-old professor at Georgetown University Law Center and a former Breyer clerk. “I hope this e-mail reaches you, as I’ve tried to find your contact info from a variety of different sources,” Katyal wrote. “I’m writing,in the event that you do lead the defense team at the military tribunals, to offer my help.” Lacking any better offers, Gunn invited Katyal to work with Charlie Swift and Philip Sundel, the navy JAGs who would be handling the first cases.
    It was a deeply unfashionable undertaking. Only a year and a half had passed since the terrorist attacks. The war in Iraq had just begun, and it enjoyed tremendous public support. Only the Center for Constitutional Rights, a stalwart of the left, had raised loud and consistent objections to the Bush administration’s legal basis for the war on terror. The big law firms and major law schools were mostly silent. Even so, the first legal challenges to the detention policies began working their way through the courts. The administration had argued that the facility at Guantánamo, which was on Cuban soil, should be treated like a foreign battlefield; accordingly, the courts shouldn’t be ordering American troops to help with the defense in such dangerous conditions.
    The Guantánamo cases, known as
Hamdi
and
Padilla
, came before the Court for oral argument on April 28, 2004, and Ginsburg pressed the Bush lawyers about the logical extension of their arguments. If the Guantánamo detainees were outside the reach of the American legal system, she asked, were there any legal limits on how they could be treated? Could they be tortured? “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,” Paul Clement, the deputy solicitor general replied, “our executive doesn’t.”
    That very night, CBS News’s
60 Minutes II
broadcast the first photographs of the treatment of Iraqi prisoners at Abu Ghraib. The photographs, which showed extensive abuse by American soldiers, created a national scandal. By that point, too, a year after the invasion, the war had settled into a bloody stalemate. In all, the political tide was turning against the war, and in June 2004 the justices issued theirfirst rulings against the Bush policies. Stevens, in his opinion for the Court, made short work of the argument that Guantánamo was like a battlefield. The American military “exercises exclusive jurisdiction and control” over the base, he wrote; Donald Rumsfeld, the secretary of defense, sent these dangerous prisoners to such a remote location precisely because it was so secure from outside interference. O’Connor, a reliable vector for public opinion, was even more contemptuous of the Bush administration’s position: “We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s