N April 28, hours before CBS broadcast the photographs of Americans abusing Iraqi prisoners, the United States deputy solicitor general, Paul D. Clement, stood before the Supreme Court arguing the case of Rumsfeld v. Padilla. He was defending the administration's open-ended military detention of Jose Padilla, an American arrested two years ago on suspicion of conspiring with Al Qaeda to detonate a "dirty bomb" in the United States. Another American citizen, Yaser Esam Hamdi, was captured in Afghanistan and like Mr. Padilla has been labeled an enemy combatant; his case is also before the court.

The justices, clearly engaged, tossed many hypothetical questions Mr. Clement's way. One colloquy, in particular - on the question of whether the courts must give the executive branch a free hand on how to treat detainees, up to and including torture - takes on a different, even chilling, tone now that it appears not so hypothetical. Excerpts follow.

JUSTICE ANTHONY M. KENNEDY: What rights does Padilla have, if any, in your view, that a belligerent who is apprehended on the battlefield does not have? Is Padilla just the same as somebody you catch in Afghanistan?

MR. CLEMENT: I think for purposes of the question before this court, the authority question, he is just the same.

Q. Can we punish him?

A. Could we punish him. Certainly we could punish him if we decided to change the nature of our processing of him.

Q. Would you shoot him when he got off the plane?

A. No, I don't think we could, for good and sufficient reasons --

Q. I assume that you could shoot someone that you had captured on the field of battle.

A. Not after we captured them and brought them to safety. And I think in every case, there are rules of engagement, there are rules for the appropriate force that should be used. And I don't know that there are any --

JUSTICE KENNEDY: If they're an unlawful belligerent?

A. Yes, even if they're an unlawful belligerent. Once they're - I mean, we couldn't take somebody like Hamdi, for example, now that he's been removed from the battlefield and is completely - poses no threat unless he's released, and use that kind of force on him.

JUSTICE RUTH BADER GINSBURG: But if the law is what the executive says it is, whatever is "necessary and appropriate'' in the executive's judgment, as the resolution you gave us that Congress passed, it leads you up to the executive, unchecked by the judiciary. So what is it that would be a check against torture?

A. Well, first of all, there are treaty obligations. But the primary check is that just as in every other war, if a U.S. military person commits a war crime by creating some atrocity on a harmless, you know, detained enemy combatant or a prisoner of war, that violates our own conception of what's a war crime. And we'll put that U.S. military officer on trial in a court martial. So I think there are plenty of internal reasons --

Q. 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 systems do that to get information.

A. Well, our executive doesn't, and I think - I mean.

Q. What's constraining? That's the point. Is it just up to the good will of the executive? Is there any judicial check?

A. This is a situation where there is jurisdiction in the habeas courts. So if necessary, they remain open. But I think it's very important - I mean, the court in Ludecke v. Watkins made clear that the fact that executive discretion in a war situation can be abused is not a good and sufficient reason for judicial micromanagement and overseeing of that authority.

You have to recognize that in situations where there is a war - where the government is on a war footing - that you have to trust the executive to make the kind of quintessential military judgments that are involved in things like that.