The Passion of Bradley Manning

by Chase Madar

  The roots of Abu Ghraib, Bagram, Guantánamo and the isolation torture of Bradley Manning are so close to home that we have trouble seeing them. Many of us would like to think that all of this is a colossal and shameful exception to our laws and customs. But the sensational GWOT atrocities that have scandalized the world for the past decade are at base a simple extension of our everyday “normal” way of doing criminal justice. To be sure, the GWOT’s use of torture has been more programmatic, and the locales more exotic, but on the whole these headline-making scandals have been far less aberrant than we would like to think. From Guantánamo to the treatment of Bradley Manning, most of our supposedly out-of-character response to 9/11 has in fact been less exception than the rule. On the whole, the GWOT has been all-American.

  This is a strong statement, demanding evidence beyond the scope of the Bradley Manning case. The argument is best bolstered by a brief and unpleasant visit to Guantánamo, the iconic “legal black hole” whose essential normality within the American legal-penal galaxy is more disturbing still.

  I visited Guantánamo in April-May of 2010, where a member of our international press gaggle let it slip that she didn’t much care for the place. “This,” she confided to the group, “is the worst place I have ever visited in my entire career.” Many of us made similar judgments over the course of our visit.

  It’s not hard to see why so many of us felt this way: we were covering pretrial hearings for the trial of Omar Khadr, a Canadian captured at age 15 after a firefight with US forces outside Kabul in 2002, tortured and interrogated for a few months at Bagram Air Base in Afghanistan, then transported to Guantánamo to await trial before a military commission, charged with five “war crimes.” (The scare-quotes are necessary as four of the charges were freshly invented for the occasion, and are not recognized as war crimes in any other court.) In October later that year, Khadr would take a deal pleading guilty to all charges, leaving him with one more year at Gitmo–to be spent in solitary–and then a likely transfer to Canada for a remaining seven years of either prison or supervised release.

  Aside from Khadr and about 130 other prisoners who may one day see a trial, Guantánamo still holds some 45 more War on Terror prisoners who will be “detained” indefinitely without being tried at all. This is one of the radical policies of George W. Bush and Dick Cheney that is now cheerfully defended by the human rights grandees in Barack Obama’s State Department.

  Gitmo and all other places without habeas corpus rights are indeed dismal places—and there is certainly something striking about the first conviction of a child soldier since World War II. All the same, I couldn’t help but draw a comparison from the most notorious prison in the world to homegrown US federal prisons, like the one in Terre Haute, Indiana (whose maximum security wing was copied down to the smallest detail at Gitmo’s Camp 5), or even a run-of-the-mill overcrowded state penitentiary, the kind you pass on the highway without even noticing, or one of the crumbling youth detention facilities in New York State which are thoroughly hellish.

  Such prisons may lack the exotic setting of Gitmo’s Camp Delta, but they are not incomparable. A great many of America’s domestic prisons also routinely abuse inmates; are unable or unwilling to prevent inmate rape; inflict long-term solitary confinement, which does at least as much physiological damage as waterboarding; and in actual practice operate beyond most notions of the rule of law. Confessions, true or false, obtained through violence and threats, aren’t restricted to Guantánamo either. They are not all that hard to find in our fifty states. And for the rest of our prison system, where is the outraged international press gaggle? Why are no British “law lords” calling the federal supermax in Florence, Colorado, a “legal black hole” as Lord Johan Steyn termed Guantánamo?

  Alas, in so many ways Guantánamo is not the exception but far closer to the rule of our criminal justice system. To be sure, taking a child soldier you’ve captured in a foreign land, whose interrogation entailed stringing him up half-naked in a five-foot-square cell with wrists chained to the bars at eye level and a hood clamped tightly over his face, then prosecuting him for “murder” because he allegedly tossed a grenade on a foreign battlefield, does present some legal issues that don’t ordinarily come up in Spokane or Chillicothe.

  But are Gitmo, the torture of Bradley Manning and the whole Global War on Terror a “betrayal of American values”? Would that they were. For nearly every grisly tabloid feature of the Khadr case, you can find an easy analog in our everyday criminal justice system. In a sense, much of our War on Terror has proven a slightly spicier version of our “normal” way of doing criminal justice. Using the case of young Omar Khadr, let’s take this step by step.

  Child Soldiers and Juvenile Offenders

  Hasn’t there been a surge of concern for child soldiers in book clubs and church groups across the land? It turns out that this long-distance compassion goes up in smoke at closer range. When a child soldier points his gun at an American, not another African, he becomes a hardened terrorist in American eyes.

  The hypocrisy in all this is perhaps only apparent. After all, clemency for youth offenders, be they child soldiers or just local kids, runs against the American grain today. If we routinely prosecute children even younger than 15 as adults—and we do—why should a foreign child soldier be any different?

  In fact the US even has a few dozen inmates doing life without parole for acts committed when they were thirteen or fourteen, and most of these sentences were mandatory rather than the prerogative of a particularly vindictive judge. (Some progress has been made: in May 2010, the United States Supreme Court decided in Graham v. Florida that juveniles can get life without parole only if there’s homicide involved.) Overall, the US has in recent years had precious little mercy for its children, or anyone else’s.

  During my visit to Gitmo, the press corps gasped when Khadr’s “Interrogator Number One,” Joshua Claus, described the veiled threats of rape he wielded at Bagram Prison to try to break the young prisoner. If Khadr should fail to cooperate, Claus told him, he would meet the same fate as another young (and imaginary) Afghan detainee who was supposedly sent to a US penitentiary and raped to death in a shower room by “neo-Nazis, and four big black guys.” Claus, a court-martialed detainee abuser, had been the leader of the final interrogation of a mistakenly imprisoned Afghan taxi driver who was beaten to death by American guards at Bagram in 2002. Before receiving a light sentence in the case, Claus pledged his full cooperation with the Khadr prosecution, and he kept his part of the bargain with visible enthusiasm.

  As it happens, Claus’s veiled threats of rape and violence to a minor would not have been so uncommon in domestic interrogation rooms. “From the stories I’m familiar with, threats like that are a pretty garden-variety police interrogation tactic,” says Locke Bowman, legal director of the MacArthur Justice Center at Northwestern University. With youths, it’s not that much of a challenge to get a false confession, even without the threat of or actual physical violence being brought to bear, as the case of Marty Tankleff in Long Island shows, not to mention the seven and eight year-old boys from the Englewood neighborhood of Chicago who, in the summer of 1998, “confessed” to murdering a girl for her bicycle. Even after DNA evidence from semen found on the corpse was matched to an adult serial sex offender, the Chicago Police Superintendent at first refused to exonerate them. The State’s Attorney might well have prosecuted the boys, too, if the entire South Side of Chicago hadn’t threatened to explode.

  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:

  US prison officials have obtained greater and greater discretion to send someone to solitary confinement for years; to force people into their cells naked, without meals; to inflict punitive measures without any possibility of outside intervention. It’s often a closed system whose managers have all the authority, especially at our supermax facilities. They function in many ways like Guantánamo.

  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

  need to be introduced to the fifteen-year-old boy who, along with several dozen other juveniles, is in isolation in a jail in Harris County, Texas, while he awaits trial on a robbery charge. He is one of hundreds—if not thousands—of prisoners being held in pretrial solitary confinement, for one reason or another, on any given day in America. Most of them lack decent legal representation, or are simply too poor to make bail.

  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.