As the prisoner-abuse scandal in Iraq spirals out of control, it's all too easy to forget that just last month, the Supreme Court heard three cases concerning the rights of “enemy combatants” being held at Guantánamo Bay, Cuba, and in US Naval brigs off the American coast. One issue at stake in these cases is whether the government specifically President Bush should be trusted to handle prisoners in an appropriate manner. We now know, of course, that top military officials knew of the Abu Ghraib prisoner abuse at least as early as January. And evidence is mounting that the abuse was not, as Secretary of Defense Donald Rumsfeld claims, merely carried out by a few “bad apples,” but the result of secret directives approved by high-level military and CIA officials. Yet last month, in oral arguments before the Supreme Court, government lawyers from the Justice Department's Office of the Solicitor General (OSG) seeking to persuade the court to back off and let the administration run the war on terrorism as it sees fit solemnly assured the justices that such things were not happening at US-run detention centers.
So what gives? Did the deputy solicitor general deceive the court? Probably not. Most likely, defense officials deliberately hid knowledge of torture and prisoner abuse from the government's own lawyers. Most likely, defense officials did everything in their power to prevent news of the Abu Ghraib investigation from reaching the justices who, after all, were being asked to give the president carte blanche to hold prisoners indefinitely, incommunicado, and without interference from the courts. Fortunately, this maneuver was thwarted in the nick of time before the Supreme Court actually decided the “enemy combatant” cases, which it is expected to do in June by a handful of digital photos and the blessings of a free press.
According to Seymour Hersh's most recent exposé in the New Yorker, Rumsfeld and a top aide decided to adapt “unconventional methods to Abu Ghraib,” using a secret program of prisoner abuse previously applied only to a small number of captured Al Qaeda leaders in Afghanistan. Hersh reports that a small number of high-level military and intelligence leaders coordinated efforts to keep this interrogation program secret. Brigadier General Janis Karpinski, the Military Police officer ostensibly in charge of Abu Ghraib prison, told Hersh how mysterious non-uniformed officials would bring in new prisoners, have them interrogated, and then return to collect them. Hersh obtained e-mails sent home by one soldier at Abu Ghraib, describing what happened when one such prisoner died during a CIA-paramilitary interrogation: the man's body was packed in ice for 24 hours to await the arrival of personnel dressed as medics who, he wrote, “put his body on a stretcher, placed a fake IV in his arm and took him away.” The dead man was never entered into the prison's inmate-control system. This jibes with a May 11 Washington Post account of what enlisted men at Abu Ghraib called “ghost detainees” captives with neither identities nor paper trails, whom intelligence officers constantly moved to hide them from Red Cross inspection teams. These detainees have become “the disappeared” they've vanished within what the Post describes as a network of secret detention facilities managed by the Pentagon, CIA, and cooperating foreign-intelligence services “whose purpose is to hold suspected terrorists or insurgents for interrogation and safekeeping while avoiding U.S. or international court systems.” Further, the New York Times reported on May 19 that military lawyers are no longer allowed to supervise interrogations for human-rights compliance a previously standard practice at these clandestine facilities. Laws and lawyers, it seems, are also among the disappeared.
President Bush may not have been aware of the particulars of the Abu Ghraib program, but his public statements suggest that he endorsed it in broad principle. In his 2003 State of the Union address, for instance, Bush spoke of 3000 foreign suspects, some of whom had been arrested. Others, he said, “met a different fate. Let's put it this way: they are no longer a problem.” Until the Abu Ghraib story broke, Bush could afford such boasts as long as a system of “plausible deniability” was in place to protect the chain of command, over which he presides, from responsibility for rogue military and intelligence operations.
The Reagan-era Iran-contra affair offers a classic example of plausible deniability. In this scheme, the CIA sold weapons to Iran illegally in exchange for the release of American hostages and about $30 million, more than half of which was then diverted to illegally support the Nicaraguan contras, and top national-security officials kept the president out of the loop. As Admiral John Poindexter testified before Congress, “I'm sure the president would have enjoyed knowing about it. But, on the other hand, because it would be controversial … I wanted the president to have some deniability so that he would be protected, and at the same time we would be able to carry out his policy and provide the opposition to the Sandinista government.”
As bad as this was, George W. Bush's Defense Department appears to have taken things one step further by extending plausible deniability to government lawyers arguing before the federal courts. Rumsfeld must know that getting lawyers to lie to judges, especially Supreme Court justices, is not easy; any lawyer caught doing so would be disgraced and probably disbarred. And he surely realized that if the high court learned of the human-rights violations in Abu Ghraib, it would severely undercut the administration's requests for near-absolute executive autonomy in the war on terror. It would particularly undermine the government's position in the Guantánamo case, where the government has argued that the courts should not have authority even to ask what goes on behind the barbed wire. So the OSG was almost certainly kept out of the loop and sent in ignorance to argue the cases before the justices.
Thus, when Deputy Solicitor General Paul Clement went before the court on April 28 and denied that torture was an issue, he likely did so with a clear (if ill-informed) conscience. Justice Ruth Bader Ginsburg asked him a prescient question: “But if the law is what the executive says it is, whatever is u2018necessary and appropriate' in the executive's judgment … what is it that would be a check against torture?” Clement replied that “our executive doesn't” conduct torture. He continued: “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.”
Yet that very evening, CBS's 60 Minutes II broadcast images of the Abu Ghraib prisoner humiliation and torture images the Defense Department, but probably not the solicitor general, had known about at least since January. Every week has brought more images to light, and indications are that still-undisclosed materials document torture even more violent than what has been revealed thus far.
All this, of course, signals to the courts exactly what Donald Rumsfeld didn't want them to see: that the courts can no longer trust what government lawyers tell them. In a government where plausible deniability has become routine, the notion that courts can rely on lawyers' assurances becomes a quaint fiction.
Geroge W. Bush’s administration, however, is hardly the innovator of this deceitful tactic. Sixty years ago, in a decision that, until now, marked the nadir of post–Civil War American civil liberties, similar deception of government lawyers by the military succeeded in gaining judicial approval of a similarly infamous program: the internment of Japanese-Americans during World War II.
In the spring of 1943, the Supreme Court was preparing to hear two cases Yasui v. United States and Hirabayashi v. United States challenging a wartime curfew for people of Japanese ancestry. A third case, Korematsu v. United States, which challenged the internment of this group, was coming down the pike as well.
The War Department knew it would have to provide military justification for these racially discriminatory measures. However, a month before oral arguments in Yasui and Hirabayashi, it encountered a problem. General John L. DeWitt, who directed the internment of Japanese-Americans, submitted a report to justify the program. In it, he wrote: “It was impossible to establish the identity of loyal and disloyal with any degree of safety. It was not that there was insufficient time in which to make such a determination; it was simply a matter of facing the realities that a positive determination could not be made, that an exact separation of the u2018sheep from the goats' was unfeasible.” He grounded this assertion on the notion that the Japanese race was “a potentially dangerous element” with peculiar traits that made their loyalties and intentions inscrutable. This rationale, War Department officials realized, was legally indefensible.
Assistant Secretary of War John McCloy and several Army officials asked DeWitt to rewrite the report so as not to jeopardize the Supreme Court cases. DeWitt complied; he removed the racist language and replaced it with the assertion that wartime circumstances demanded immediate action, that there was no time to investigate the loyalty of each Japanese-American. McCloy then forwarded the doctored report to the Justice Department for use in the upcoming Korematsu case. The War Department destroyed all copies of the original, racist report, except for one that was accidentally misplaced and which eventually made its way to the National Archives, only to be rediscovered nearly a half-century later.
The Supreme Court issued opinions in the Yasui and Hirabayashi cases on June 21, 1943, and in Korematsu on December 18, 1944. In all three, the court ruled for the government, relying heavily on the Justice Department's assertion (which the lawyers derived primarily from the doctored report) that the exigencies of war demanded immediate action, and that there had been insufficient time to separate loyal from disloyal Japanese-Americans.
In his dissent in Korematsu, Justice Robert Jackson expressed concern that the court, “having no real evidence before it, has no choice but to accept General DeWitt's own unsworn, self-serving statement, untested by any cross-examination.” This result is precisely what the Bush administration wants and has sought through similarly deceitful means.
The Bush administration has consistently argued that the national fight against terrorism belongs not in the world of laws and courts, but in a closed realm of executive and military decision-making. Concealing torture and abuse from the solicitor general who, in turn, unwittingly misled the Supreme Court was an effort to protect that closed realm.
Had the Abu Ghraib photos not come to light, Bush and Rumsfeld might well have been able to seal the doors of their own nascent gulag in Guantánamo. And the single-island gulag could have then spread to the entire “archipelago” (to use Aleksandr Solzhenitsyn's metaphor) of American military detention centers scattered throughout the world.
Now, that effort faces an obstacle. Earlier, the Supreme Court might have been inclined to give the administration carte blanche to run Guantánamo with no judicial scrutiny. But the ugly facts from Abu Ghraib make that less likely. Immediately following oral arguments in all three “enemy combatant” cases, legal commentators (ourselves included see “Could the Gulag's Future Hang on a Real-Estate Deal?“, This Just In, April 30) predicted that the court would be closely divided, with the administration winning or losing by one vote. Recent developments might just shift the outcome in liberty's favor.
June 21, 2004
Harvey A. Silverglate [send him mail], co-author of The Shadow University, is an attorney with Boston's Good & Cormier. Carl Takei [send him mail] is a writer, paralegal, and soon-to-be law student at Boston College Law School. This article, from the Boston Phoenix, is reprinted with permission.