The subject of detainee abuse did not come up, the justices said, but the way to handle deposed leader Saddam Hussein and other former Iraqi leaders did....The justices did not disclose specifics of what was discussed but said Iraqis alone should determine the appropriate punishment.
"The people of Iraq and certainly the judges there will have to come to grips in time with what to do about the former regime and leaders in it and whether some should be held criminally accountable for past crimes and, if so, where do you draw the line," O'Connor said. "We don't have answers for that," she said, noting other wartorn countries have used such prosecutions as healing experiences.
Added Kennedy: "It's not for us to enter into that debate. There was some difference of opinion, but discussed in a very rational, balanced, reflective way." ... "You have to find small islands, small pockets of stability and reliability and build out from there," Kennedy said. "And it was apparent to us ... that these dedicated jurists represent a reliable source of stability, responsibility, respect for the law." ...
On the issue of Iraqi inmate abuse at the hands of U.S. military personnel, Kennedy said the Iraqi judges "innately knew, instinctively knew how concerned we were. They also knew that we can't really comment because we are actually in the legal system where we have review of military court-martials."
"They also knew we represent a process that is open, that recognizes that human fallibility is the reason we have democracy," he said.
One can only speculate about what effect the abuse of Iraqi detainees might have on the Justices' reasoning about the power of the President with respect to the Guantanamo detainees. The comments of the Justices are typically inscrutable. We are left to "innately ... instinctively" divine what they might be thinking.
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