Admin. Officials Lied to Lawyers Defending Trustworthiness of Gov’t Before the Supreme Court

by Brendan Lalor (on a Boston Phoenix report)

Last month, “the Supreme Court heard three cases concerning the rights of ‘enemy combatants’ being held at Guant?namo 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,” Harvey Silverglate reminds us in the Boston Phoenix. Should the Bush Administration be trusted with the power to lock up “terror suspects” without charges or trial indefinitely? Yet, “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 [prisoner abuse and torture] were not happening at US-run detention centers.” Having known since January at the latest of the abuse of prisoners at Abu Ghraib, Rumsfeld and company lied to the OSG lawyers: 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 Guant?namo 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.

Bush, too, may have been out of the loop, which is important for purposes of “plausible deniability” to protect him from responsibility — not that he’s ever admitted to being wrong.

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.”

The Phoenix article continues:

Justice Ruth Bader Ginsburg asked [Deputy Solicitor General Paul Clement, who went before the court on April 28] a prescient question: “But if the law is what the executive says it is, whatever is ?necessary 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…

So the courts can no longer trust Bush-government lawyers.

This is not the first time government lawyers pressured the Court to “trust” an administration.

Sixty years ago … 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 … cases…. The War Department knew it would have to provide military justification for these racially discriminatory measures. However … 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 ?sheep 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 prevailed upon DeWitt to change the racist language before they gave the report to the lawyers at the Justice Department. (“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.”)

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….

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 Guant?namo. 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.

As Marie Cocco put it in Newsday:

We are supposed to believe our government is innocent until proven guilty. We are asked to do this even as the government pronounces the guilt of its citizens, and offers no way for them to prove otherwise.

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