The Passion of Bradley Manning (13 page)

Torture

We bemoan with great feeling that America has “become” a state that uses torture. Alas, this, too, is not so new, nor has it ever been limited to foreign insurgents (be they Comanche, Filipino, or Vietnamese) or suspected terrorists. Take, for example, the former high-ranking Chicago police detective Jon Burge who, over a 20-year career, enhanced his interrogations with mock executions, suffocation, electroshocks, pistol-whipping, and yes, a form of waterboarding. All this was uncovered in 2002 in an epic special investigation which led to the reexamination of more than 100 cases, several overturned convictions, multiple Governor's pardons and the usual massive lawsuits against the Chicago Police Department. Because the statute of limitations for Burge's crimes had run out, the disgraced police officer was convicted in June, 2010 of perjury and obstruction of justice.

As for routinized prison abuse, Bagram and Abu Ghraib have regularly been described as one-off aberrations, but the origins of such brutality are not hard to spot in our treatment of prisoners at home. This continuity is personified by Charles Graner, the ringleader of the Abu Ghraib torture. Prior to his deployment, he had worked as a guard at maximum-security State Correctional Institute-Greene in southwestern Pennsylvania, itself subject to a major prisoner-abuse scandal in the late 1990s which got several guards fired, though not Graner.

The fact is, the abuse and/or torture of prisoners, though far from systematic, is not all that uncommon in many American prisons. What came out in the Abu Ghraib photos is, according to the (increasingly busy) United States program of Human Rights Watch, not so different from the abuse and brutality of many of our own stateside lock-ups.

In New York, for instance, a state task force convened by Governor David Paterson in 2008 deemed the entire youth detention system “broken.” The official report found that guards throughout the system regularly used “excessive force” on youth inmates, sometimes breaking bones and shattering teeth. And prison abuse here at home can be just as fatal as at Bagram. In New York, an emotionally disturbed fifteen-year-old died in 2006 after corrections officers pinned him face down on the ground. (Remember, at Bagram the interrogators tried to make young Khadr talk by threatening to send him to
an American prison
, which they apparently considered at least as threatening as anything Afghanistan had to offer.)

This is not lost on lawyers representing Gitmo detainees. “I might well advise a client to take ten years in the communal wing of Guantánamo over three years in solitary at the supermax in Florence,” says Shayana Kadidal, senior managing attorney at the Guantánamo Global Justice Initiative at the Center for Constitutional Rights. Attorney Joshua Dratel, who took part in the very successful defense of Gitmo detainee David Hicks, told me that he thought the worst American-run prison is not Guantánamo's Camp Delta, but rather the Metropolitan Correctional Center in lower Manhattan. And yet, somewhat mysteriously, American intellectuals are more likely to know about the brutality of Gitmo, Abu Ghraib and Bradley Manning's nine months in Quantico than the fatal abuse and abysmal prison conditions in their own state.

To be sure, in significant ways Gitmo and the CIA's various global “black sites” were significantly worse. First, the use of torture has been far more widespread at Bagram, Abu Ghraib, Guantánamo, and the other secret prisons established in the Bush years than at home. In addition, the government has also made the decision to imprison some detainees without trial for the duration of what has often been described as a “multigenerational” global war on terror. Even those prisoners with habeas rights have had trouble getting release orders granted by the judiciary enforced. Half a dozen Guantánamo prosecutors—prosecutors, not defense lawyers—have quit in disgust with the whole process, offering harsh words about the structural flaws which tilt the system towards securing convictions at the expense of impartial justice.

In important ways, however, our domestic justice system is no better. Darrell Vandeveld is a former Guantánamo prosecutor. He resigned in a crisis of conscience in 2009. He was also once a public defender in San Diego where he found that many defendants were able to get only a semblance of justice. “Most of the defendants' rights were honored only in the breach. It's an overburdened system that has only become worse. Comparable to Gitmo? No doubt.” Vandeveld, who now heads the public defender office in Erie, Pennsylvania, stresses that, while the outrages are not identical, they are comparable.

Gazing into Gitmo's legal abyss can also easily provoke disturbing reflections on the rule of law in wartime America. As another lawyer remarked 2,000 years ago while his republic was degenerating into empire, “
Inter armas silent leges
.” (In time of war, the laws fall silent).

Keep in mind that the Global War on Terror—a term the Obama administration has demurely discarded without dropping the war so signified—is by no means the only war deforming our justice system. For the past three decades, the War on Crime and the War on Drugs have been in full fury, becoming ever less metaphorical as budgets for police and prisons skyrocket, and then skyrocket some more. These domestic crackdowns have come with much martial rhetoric and political manipulation of fear and anger, clearing a wide path for the excesses of that Global War on Terror. By overburdening the criminal courts and prison system to a hitherto unimaginable degree, these “wars” also created legal black holes where the rule of law is notional at best.

Take the Prison Litigation Reform Act of 1995, which made it nearly impossible for inmates to sue prison authorities, and has put thousands of Americans beyond the reach of any kind of judicial authority. According to Bryan Stevenson, a peerless capital-defense litigator and executive director of the Equal Justice Initiative in Montgomery, Alabama:

Gitmo, Bagram and the solitary cell at Quantico were well within our capabilities before 9/11. Bush Administration officials and pundits told us with excitement about how, in our counterattack on al-Qaeda, “the gloves were coming off.” For a great many Americans, however, those gloves had never been on to begin with. This raises some vexing questions about how we budget our indignation. Violent interrogations, abuse, and torture somehow become more scandalous when they happen overseas than in Chicago. It was just this indignation gap between abuses abroad and at home that inspired two veteran journalists, Jean Casella and James Ridgway, to found the advocacy group Solitary Watch. As they have tirelessly and eloquently pointed out, it is not clear why outrage over long-term solitary should be confined to the case of a twenty-four-year-old whistleblower named Bradley Manning, given that he was not alone in suffering legalized torture.

Manning's controversial isolation opened the eyes of many both to the horrors of solitary confinement—and to just how
uncontroversial
its pervasive use has become in the United States. For isolation is hardly some rare form of extreme punishment reserved for alleged national security threats: in the United States, its use is frequent and widespread. Manning's isolation cell at Quantico Marine Base was anything but an anomaly. It was an invisibly normal feature of the American landscape, just like baseball diamonds and strip malls.

Long-term solitary confinement is a routine component of the American penal system. The numbers speak for themselves: today there are more than 20,000 inmates in America's “supermax” prisons, which by definition keep their wards in long-term isolation. There are perhaps 50,000 to 80,000 more held in solitary in other federal and local prisons—how many exactly is not known. No one is counting.

Can torture really be so widespread in a wealthy democracy during a florescence of human rights law? Yes. As Solitary Watch notes, over the past thirty years prisoners held in solitary have shot up even faster than the US's already skyrocketing incarceration rate. Some prisoners, of course, have been put into solitary because they are a danger to other inmates and to prison guards. But a great many are now put into solitary as a disciplinary measure of the very first resort. California is especially profligate with throwing prisoners into isolation: as of July 2011, all but twenty-six of 1,056 inmates held in isolation at Pelican Bay prison were held not because of any specific infraction or violation but because of suspected gang membership. According to the Los Angeles
Times
, “[n] early 300 had been there for more than a decade, seventy-eight for more than twenty years.”

What, then, distinguishes Bradley Manning from the tens of thousands of Americans who are still doing long-term solitary? Is it the political nature of the charges? This argument is unsupported, for there are dozens of animal rights activists, radical environmentalists and Islamic militants isolated in “Communication Management Units” at the supermax prisons in Terre Haute and Marion, Illinois. And yet they have not received media attention or letters of concern from the Bundestag.

Of course, Manning's nine months of solitary were pretrial detention—surely that must be an aberration, to isolate any accused person for so long before any determination of guilt or innocence? This too is wishful thinking; pretrial detention in solitary is not at all uncommon in the United States. According to Casella and Ridgeway, we who are shocked by Manning's treatment

Long-term solitary confinement, even of pretrial suspects, is just one of the things the American government does, like paving roads and delivering the mail.

How can this be legal in America? Doesn't the Eighth Amendment proscribe “cruel and unusual” punishment? Those are the words, but the Supreme Court of the United States has decided that solitary confinement, even long-term isolation, does not meet that standard of cruelty and unusualness, provided that the prisoner didn't already suffer from mental illness. (That the punishment inflicts long-term psychiatric damage did not concern a majority of the judges.) Similarly, the Fourteenth Amendment's guarantee of due process under the law also does not, as presently interpreted, bar the penalty.

It should be noted that the growing outrage against Manning's treatment reflects longstanding humanitarian principles. In the nineteenth century, critics of long-term isolation were numerous and uncompromising. Charles Dickens was appalled by the practice as he observed it on a visit to America; conservative thinker Alexis de Tocqueville himself noted that the solitary confinement in Auburn, New York

Many states of the union experimented with penal isolation before abandoning the practice in the late nineteenth century: the effects were just too devastating on inmates. Even the Supreme Court of the United States came within a whisker of abolishing long-term isolation in the 1890 case of
In re Medley
.

Bradley Manning's treatment may have been atypical in the Quantico Marine Corps Base brig, and needless to say, the factual allegations in this case are unique. But then, the circumstances and the suffering of the tens of thousands of other prisoners doing long-term solitary are all unique. The cruel reality is that Pfc. Manning's nine months of isolation torture was not even remotely exceptional. What is surprising is that we in America were surprised by it at all.