President Bush and Attorney General Michael Mukasey owe the Supreme Court an explanation.  Four years ago, one of Bush’s top lawyers, Solicitor General Paul Clement, told the Supreme Court that the administration did not use coercive methods on prisoners to extract information.  Given the recent admission by CIA Director Michael Hayden that three prisoners were waterboarded, we now know that the Supreme Court was misled.  If Mukasey hopes to get the Justice Department back on track, he must find out how this happened and take corrective action.

In the spring of 2004, the Bush administration was advancing its sweeping vision of executive power before the Supreme Court.  An American citizen, Jose Padilla, a suspected terrorist, had been arrested at Chicago’s O’Hare airport.  Padilla was then moved to a military brig where he was held in solitary confinement for two years.  The government refused to allow Padilla to meet with anyone, including his lawyer.  According to the Bush administration, once a prisoner is designated an “enemy combatant,” he loses the legal protections of the American Constitution—even if the prisoner is an American citizen arrested in the United States.  Because of the grave issues involved, the Supreme Court decided to hear Padilla’s constitutional objections and rule on the controversy.

Although the central issue in the Padilla case concerned the president’s power to imprison American citizens, the Supreme Court wanted to examine the breadth of the Bush administration’s legal claims.  Solicitor General Clement argued that America was at war and that the president, as commander-in-chief, could not have his military decisions “second-guessed” by the judiciary.  A pivotal moment in the Padilla oral argument came when Clement was asked about torture (pdf)(pp. 20-23).  Testing the limits of Clement’s logic, the Supreme Court justices wanted to know if there was any legal check on the executive power to coerce prisoners to obtain military intelligence.  Clement tried to talk around the question, but then a member of the Court asked this blunt question, “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 [foreign governments] do that to get information.”

This was supposed to be the moment of truth, but the White House representative faltered by saying, “Well, our executive doesn’t.”

That was doubletalk.  Four years later, the White House is telling a different story, albeit in dribs and drabs.  Waterboarding is not the same as water torture.  Only the CIA does it.  Only a few prisoners.

Clement could have said this to the Supreme Court, “Our Office of Legal Counsel has determined that the infliction of pain equivalent to organ failure is the legal limit.”  Or he could have said something similar to what Vice President Dick Cheney said recently—that the administration does have a tough program for “tough customers.”  Instead, Clement sought to assure the Supreme Court that there was no need to wrestle with such questions because even mild torture was beyond the pale to "our executive."  Satisfied with that answer, the Court moved on to other legal issues.

Professional legal obligations prohibit lawyers from making false statements of fact or law to a court.  And if a false statement is made, whether intentionally or by mistake, attorneys have an obligation to bring the error to the court’s attention even after the conclusion of the relevant proceeding.  As a former federal judge, Attorney General Mukasey must appreciate the importance of the legal rules requiring candor toward the courts.  Indeed, it was precisely that obligation that recently prompted Mukasey to initiate a criminal investigation into the CIA’s destruction of an interrogation videotape in another case.  That disclosure came to light when a Justice Department lawyer discovered the CIA’s action and took the appropriate corrective action by notifying a court of what transpired.  Keeping such facts from the court might have prevented the subsequent criminal inquiry and the negative publicity, but it would have violated the legal rules.

There is no evidence that the misrepresentation to the Supreme Court in the Padilla case regarding tough tactics against prisoners was deliberate—so this matter does not appear to warrant another special prosecutor or even an internal criminal inquiry.  But neither should this matter be permitted to slip by unnoticed.  Since the rule of candor toward the courts is unlikely to ever be openly attacked, it is imperative to defend this rule when we see it undermined—especially before the Supreme Court.    If the rule is worth preserving, and it is, it needs to be enforced.  At a minimum, Mukasey should officially inform the Supreme Court of the error.

The key point is this: Reasonable people can honestly disagree about what needs to be done about the threat posed by terrorists, but a conscientious discussion of our Constitution and laws must begin with a clear understanding of what our government is actually doing and what it is actually proposing to do next.