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A Supreme Court Dialogue

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from: Dahlia Lithwick
to: Walter Dellinger

The Ugliness That Blooms in Secret

Posted Thursday, June 24, 2004, at 11:18 AM ET

Who Are These People?

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Dear Walter,

First, welcome back to Slate. Talking with you about the big end-of-term decisions has become one of the absolute highlights of my professional year.

Here's what's worrying me: Nobody has any idea whether the really momentous decisions—the Hamdi, Padilla, and Guantanamo detainee cases—will come down today or next week. But I wonder if people really appreciate the consequence of these rulings.

I don't think it's possible to overstate the importance of these decisions, yet I fear the public still somehow believes they just have to do with some guys "out there," a handful of terrorists down at Gitmo and some bad men in Navy brigs. The photos accompanying these stories on the front pages will all be of alleged terrorists, even though these cases are really all about the president. The truth is, those alleged terrorists may, at most, win the right to a hearing someday, in which they will probably be deemed bad guys again and locked up anyhow. These cases have everything to do with the scope of executive power and secrecy in wartime (and outside of wartime if you throw in the Cheney energy task force case). Padilla's a footnote.

The court will now determine whether there is to be any scrutiny at all of presidential decisions, and at a time when so many of those decisions are cloaked in secrecy. Despite almost weekly reminders of the ugliness that blooms in secret, there is the possibility of the court agreeing to pull the curtain around that bed and call it a day. This terrifies me.

I have this mental image that I cannot shake: The war on terror rolls inexorably along, crushing out basic rights and freedoms as the judges puff along on the sidelines, robes flapping ineffectually, trying to stop this machine that is the Pentagon, the Bush administration, and the Justice Department. We are now poised at the exact moment when the court really could stop that machine, or slow it down, or at least peek in a window. This is breathtaking when you think about it.

When I sat in the court for oral argument during the Hamdi and Padilla cases, it seemed to me that the justices were well aware that this was a crucial moment in the nation's history. What I keep wondering, as each side rushes to add "exhibits" to its existing pleadings (the photos from Abu Ghraib, the DOJ memo on the Padilla confession, then the "torture memos") is whether the justices are affected by all this new evidence, whether it matters at all that it's presented in the media, as opposed to in their court.

I want to ask you about last week's Pledge of Allegiance decision. And about the strange call made Monday in the Hiibel case (an odd contest of "my dicta is bigger than yours …"). Perhaps we will get to all that later, before the sky falls. For now, I just hope you can tell me what the justices think about as they read their morning papers. Or at least what the news is from Sutton's Drugstore. …

Anxiously,
Dahlia

the breakfast table
entries
12345678910
from: Dahlia Lithwick
to: Walter Dellinger

The Ugliness That Blooms in Secret

Posted Thursday, June 24, 2004, at 11:18 AM ET
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Walter Dellinger is an attorney in Washington, D.C. and the Douglas B. Maggs professor of law at Duke. Dahlia Lithwick is a Slate senior editor.
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