During oral argument in the case of alleged dirty bomber Jose Padilla, US Supreme Court Justice Ruth Bader Ginsburg posed what seemed a hypothetical question about US interrogation tactics.
"Suppose the executive says, 'mild torture we think will help get this information,' " she asked Paul Clement, the Bush administration's top lawyer in the Padilla case. "Some systems do that to get information," she added.
Mr. Clement shot back: "Well, our executive doesn't." Justice Ginsburg persisted: "Is there any judicial check?"
War is different, Clement replied. "The fact that executive discretion in a war situation can be abused is not a good and sufficient reason for judicial micromanagement," he said. "You have to trust the executive."
Within hours of this exchange, the TV news program "60 Minutes II" broadcast the first graphic images of Abu Ghraib prisoners being abused by US soldiers.