Are the Supremes Paying Attention?

FindLaw columnist Edward Lazarus writes today that Supreme Court justices considering the recently-argued Padilla and Hamdi enemy-combatant cases should be paying attention to the ongoing investigation into the abuse of Iraqi prisoners. As Lazarus puts it:

In light of the torture of Iraqi prisoners, it is now even more important that the Supreme Court definitively reject the Administration's claim of unbridled power. After all, the Administration's position always boiled down to the idea that the Executive could be "trusted" to handle the detainees fairly and appropriately.

That notion lies in tatters now -- rebutted by pictures so awful, we find them difficult to bear, and feel a national shame at the acts to which they testify. If the Court accepts the Administration's "just trust us" argument even after all the grisly instances of Executive Branch misconduct that have recently emerged, then it will be guilty of a moral as well as legal abdication of catastrophic magnitude.

Lazarus also points out that, during oral argument, Deputy Solicitor General Paul Clement, in responding to a question from the Court, said that "our executive" doesn't utilize "mild torture" as a means of gathering information. That claim is false, at best, and a lie, at worst. While Lazarus seems to let Clement slide and place the blame for that on the Department of Defense, another commentator isn't so generous.

Regardless, it should be clear by this point that the administration that begs for the courts to "trust" it has obliterated any trust that ever existed.