E-Mail This Article to a Friend Hiding the gulag Things have gotten so bad, the Bush administration is lying even to its own lawyers BY HARVEY A. SILVERGLATE AND CARL TAKEI

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.