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ALAN DERSHOWITZ

Covering up the coverup

NEITHER the release of detainees from Abu Ghraib, nor Donald Rumsfeld's assurance that the abusers will be brought to justice address the real problem revealed by the photographs taken at the prison. That problem is the Bush administration's conflicting messages. Out of one side of its mouth -- the public, rhetorical side -- it condemns all forms of torture regardless of the need to secure intelligence. Out of the other -- the discreet wink and nod side -- it tells intelligence officials the gloves are off and they should do what they have to do to obtain life-saving information. The results were predictable: Low-ranking military intelligence and police believe that they are supposed to get information but are given little guidance about the means (short of lethal torture) deemed appropriate.

Nor would it be obvious to an untrained officer whether humiliation is a proper means of "softening up" or, if it is, whether exploiting religious taboos regarding sex comes within the category of acceptable humiliation. The fact that photographs were widely circulated suggests a belief that superiors would not disapprove of what they saw. This is not to excuse those who inflicted the humiliation, but it may explain why apparently decent soldiers believed they were doing what was expected of them.

After all, the administration did approve rough interrogation methods for some high valued detainees. These included waterboarding, in which a detainee is pushed under water and made to believe he will drown unless he provides information, as well as sensory deprivation, painful stress positions, and simulated dog attacks. It is also well known that the US subcontracts difficult cases to nations such as the Philippines, Egypt, and Jordan, which have no inhibitions about pulling out fingernails. The administration's attitude, as reflected in a secret memorandum prepared by the Justice Department, seems to be that we are not responsible if it can be argued that the detainees are formally in the custody of another country. This head-in-the-sand approach comes from the top.

The New York Times has reported that a CIA official was told that Bush had informed the CIA that he did not want to know where [the high value detainees] were [being held.] If this is true, it reflects a breakdown of responsibility. The president should know where detainees are being held and what is being done to them in the name of our country. It is his responsibility to authorize extraordinary means of interrogation if he believes they are necessary to our national security, or forbid them. It is this kind of choice of evils -- pitting our treaty obligations against our security -- that should never be abdicated to low-ranking officials.

The buck stops in the Oval Office, and the president may not willfully blind himself to the unpleasant realities of the dirty war against terrorism. If Bush believes that extraordinary means -- torture lite -- must be employed in extraordinary cases, then he must make the decision and bear the consequences.

It is not unlike the tragic choice that would have to be made if an apparently hijacked passenger jet were headed toward a crowded city. The decision whether to shoot it down should not be delegated to a low-level Air Force pilot. It should be made by the highest ranking official available -- the president or secretary of defense.

Unless the president is prepared to authorize the use of extraordinary methods in extraordinary situations, such as the ticking bomb terrorist or the terrorist who could lead us to Osama bin Laden, no such methods should be employed. Every soldier should be instructed to ask, before following an order to violate the norms of interrogation, whether the president has authorized him to break the rules. Since it should be clear that no president would ever explicitly authorize the tactics employed at Abu Ghraib, there should be no confusion about what was expected.

Scapegoating the military police for the failures of the administration will not solve the problems caused by a lack of accountability at the top. General Richard B. Myers's argument that the release of the videos and additional photographs would endanger the prosecutions is a coverup. His statement that the worst possible outcome is that the perpetrators get off is more likely to cause problems than the release of the photographs, since that statement sends a message of command influence.

It seems clear that Myers and his bosses want these soldiers convicted and hope that it will be seen as a just resolution of this matter. Not so. If these soldiers are the only ones convicted of a crime that goes to the top of the chain, then the coverup will have succeeded and the problems will persist.

Alan Dershowitz is a professor of law at Harvard University. His latest book is "America On Trial." 

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