via atrios i found this post which asks whether the administration lied to the supreme court during oral arguments in the hamdi and padilla cases. the post reprints an exchange where paul clement, deputy solicitor general arguing on behalf of the administration, claims answers justice ginsburg's question about whether the executive branch authorizes torture. clement answers "well, our executive doesn't" even though it now appears that the executive had known for at least four months that torture had been practice in iraq.
i'm not sure whether this is, in fact, a lie (it's not clear to me that clement knew about the iraqi abuse story before it broke) or just another case of a lawyer who is sent into court without all the facts. but it taps into something i have been wondering since this torture scandal broke. the photos came out just after the supreme court heard oral arguments on several cases involving prisoners held outside normal criminal procedures as part of the "war on terror." the justices are right now deliberating over a decision in those cases. the administration's arguments in those cases rest on the premise that it can be trusted to make the right decision on who to detain without any review from anyone outside the executive branch.
although the images from abu ghraib are not relevant under rules of evidence (indeed, the justices are not supposed to consider anything that wasn't already put into the record before the case even reached them), the justices and their clerks are human beings. realistically, the abuse allegations directly undercut the underlying premise of the administration's case. it's hard to see how it could not influence them.
