Weekend Edition

March 25 - 27, 2011

Falling Into the Outer Darkness

The Confinement of Bradley Manning: a Legal Analysis

By KIERAN MANJARREZ

For a brief moment, December's WikiLeaks scandal caused us to remember the forgotten Private Bradley Manning who was arrested in June 2010 and who, to this very day, languishes in a perpetually lit white box, forbidden virtually all sentient stimulation or social contact.

In February, Manning's lawyer announced that his client's condition was "deteriorating" and this past weekend a few small groups gathered to protest the conditions of his confinement. Although the foreign press has reported on Manning's isolation, the U.S. press has by and large ignored the matter except to report on the firing of State Department spokesman P.J. Crowley who had dared to remark to a small academic audience that Manning's confinement was "counter-productive and stupid." Crowley's failure of deference was countermanded by President Obama who stated that the Pentagon had assured him the conditions of Manning's confinement were "appropriate and meeting our basic standards."

Spokesmen for the Marine Base at Quantico, Virginia, where Manning is being held, pointedly deny that he is denied reading material and state that he is being treated no differently than other so-called high security prisoners. But to those familiar with so-called "supermax" confinements, being used in state and federal facilities since the 1990's, the denials smack of officially crafted evasions.

The question in reply becomes: how are those other high security prisoners treated? The answer is that for two decades, extreme isolation and depersonalization have been standard and routine features in the American Gulag. The effects of these regimens both on individuals and on constitutional standards of justice are devastating.

Supreme Court Justice Kennedy summarized supermax conditions as follows: "Incarceration at OSP is synonymous with extreme isolation. ... It is fair to say OSP inmates are deprived of almost any environmental or sensory stimuli and of almost all human contact." (Wilkinson v. Austin (2005) 545 U.S. 209, at p. 214.)

Kennedy's synopsis merits a pause for actual thought. At least since the days of Aristotle, it has been recognized that Man is both a social and a sentient animal. (Politics, Bk I; De Anima, Bk II; De Sensu, Bk. I.) The essential importance of sense perception was summarized by the scholastic philosophers as, nihil in mente nisi prius in sensu (there is nothing in the mind that was not first in the senses). If there are no sensory stimuli, there can be nothing in the mind. Thus, the mind of a person confined to a box will 'self-stimulate' with what is already lodged in his brain, reacting to and within itself alone -- which is precisely what constitutes being crazy.

Similarly, just as the mind requires sensory stimulation, the human heart requires affection. Again Aristotle had it right when he said that all society was comprised of levels of friendship. A smile, a hand-shake, a pat on the back, an embrace are what anchor us to the reality of secure places within the common good. Without that external anchoring we are left to drift on a sea of doubts, fears, angers and paranoias. Without the love of a parent, wife, child, friend or faithful doggie, the human heart simply atrophies and dies.

This is nothing new. Speaking of 'rehabilitation' through isolation, Alexis de Tocqueville wrote that uninterrupted solitary confinement "devours the victim incessantly and unmercifully; it does not reform, it kills." (Du Systeme Penitentiaire Aux Etats-Unis Et De Son Application En France (1833).) Observing New York's Cherry Hill prison in 1842, Charles Dickens wrote of the "immense torture" of solitary confinement "which none but the sufferers themselves can fathom, and which no man has a right to inflict upon his fellow-creature." (American Notes (1842) pp. 118-121.)

In re Medley (1890) 134 U.S. 160, Justice Miller reviewed the "very interesting history" of solitary confinement. In the nascent United States, the "experiment" was first tried at the Walnut-Street Penitentiary, in Philadelphia, in 1787. "The peculiarities of this system were the complete isolation of the prisoner... so arranged that he had no direct intercourse with or sight of any human being...." (Id., at p. 168.) However, it was soon discovered that even after a "short" confinement prisoners fell "into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still, committed suicide...." (Ibid.) Similar experiments were tried in England where persons condemned to hang were kept in solitary confinement. But "public sentiment revolted against this severity" and the additional punishment of solitary confinement was repealed. (Ibid.) The clear implication was that the Court agreed but, unfortunately for legal precedent, Medley's sentence was reversed on other grounds.

Nevertheless, public sentiment in the United States was not that different from England and, for most of the last century, solitary confinement was recognized as a form of severe punishment to be imposed seldom and restricted in duration. That policy began to change in the 1990's and, with the institution of the National Security State, detention once again became the gateway to insanity.

Prisoners in Guantanamo tried suicides in such numbers that a psychiatric ward had to be constructed. Pictures of inmates in supermax show them just screaming their lungs out in their iso-boxes. Those who wish to inform themselves of the grim and grotesque details can Google. The simple truth is that if sentient sociality is the essence of being a human being, then anything which destroys that essence is a form of killing.

If Justice Kennedy were actually to contemplate what he himself wrote he would know that solitary confinement is an excruciating living death which is more vile, more vicious and more cruel than a death which puts an end to suffering once and for all.

What is being done to Bradley Manning is a terrible, terrible thing. Those who are doing it are a disgrace to the uniform and we who tolerate it are become moral midgets who do not deserve and, in fact, will not long live under the rule of constitutional law.

This is not merely a question of acting 'humanely' -- although one is increasingly stressed to think that anything 'human' can be regarded as decent. Nor is it just a question of individual rights -- America's perpetual obsession. The sado-barbarism inflicted on Manning is a direct wound on the very organism of our social compact.

With good reason, most of the Bill of Rights is devoted to criminal justice, because the bottom line of any civilization is precisely how it treats the least of its members. The Bill imposes standards of decency, fair play and restraint on investigations before trial, on proceedings during trial and on punishment thereafter.

In this way, the Constitution embodies our determination as to 'how we will be' and 'what we are about.' It is our political faith; our practice today for the hope of tomorrow.

We know, in the inimitable words of Hobbes, that life is "nasty, brutish and short." In myriad contexts men have written of the jungle, the outer darkness and the touhou bouhouh. But it is the Word -- and law is nothing but words -- that extracts us from that darkness. The English legal historian, Theodore Plucknett wrote that, "Out of all the confusion and disaster of the middle ages, there arose a uniform cry for law, which should be divine in its origin, supreme in its authority, rendering justly to every man his due." (Brief History of the Common Law, (1929), T.Plucknett, Cambridge University Press, pg. 59.)

Plucknett was an admirer of the U.S. Constitution which, he said, was a fundamentally medieval document in its conception of law. To put it in medieval terms, the Constitution is our parousion -- the parable which resurrects us from the chaos of unordered appetites and passions. We live within its alabaster walls or we don't.

Thus considered, the Bill of Rights is not just a guarantee of goodies to individuals; it is a confession amongst ourselves as to the political reality we wish to live and commit ourselves to living. We do this for our sakes because it establishes the kind of creatures we are.

What we are is what we recognize one another to be. Each of us, alone, is nothing but a configuration of flesh and bone, as much a mere thing in the vast cosmos as anything else. It is only in relation to the reactions of other sentient beings (be they humans or animals) that the 'I' comes into focus and shape. 'I' simply does not exist without 'You'.

What we recognize amongst one another, most basically, is that everyone one of us is weak and prone to error. As is said of Judgement Day, "And what of me when the just are mercy needing?" And yet everyone one of us hopes to be treated with more than we deserve. In civilized societies, justice always consists in giving man more than is his actual due. In the Anglo-American legal tradition this more is called 'due process' and it consists in treating a man fairly and with dignity simply because he is one of us and we are he.

The Bill of Rights is not concerned with benefits but with process: how do we treat ourselves when the going gets rough? Of course, the simple answer is: with consideration and dignity. But the provisions of the Bill of Rights go further and specify what that dignity and consideration require. Because supermax regimes destroy the human mind they necessarily violate constitutional standards at each stage of the justice system.

The cases of John Walker Lindh and Jose Padilla illustrate the destructive effects of sensory and social deprivation on our Fifth Amendment right against coerced confession, on our Sixth Amendment right to a fair jury trial and on our Eighth Amendment guarantee against cruel and unusual punishments. Both cases betoken what is being done to Bradley Manning and illustrate the less than heroic response of the judiciary to what has become a system of institutionalized sadism.

As will be recalled, Lindh was the 'American Taliban' who had gone to fight in Afghanistan's civil war. In October 2001, he became involved in a fire-fight with U.S. troops upon their invasion of that country. Lindh was captured and held in brutally barbaric conditions which can be chalked up to the viscitudes of war. On discovering that he was an American, he was ordered transferred to an on ship brig.

In preparation for his transfer, Marine guards stripped Lindh of his clothes, blindfolded him, bound him with duct tape to a stretcher and placed him in a metal shipping container" without insulation or heat. (Defense Memorandum, United States v. Lindh (E.D.,Va 2002)212 F.Supp.2d 541.) Lindh was denied medical attention to remove a bullet lodged in his leg since the uprising. He was held incommunicado and interrogated by military personnel. Nine days later he was delivered into civilian custody where he was interrogated by the FBI. (Ibid.)

One of the issues at Lindh's subsequent trial, for aiding and abetting an enemy of the United States, was whether the F.B.I. had given him adequate Miranda warnings prior to eliciting self-incriminating statements. After the district court indicated in chambers that it felt the advisements were adequate, Lindh accepted an offer of 20 years prison.

Miranda has come to occupy a talismanic position in America's perennial 'kulturkamp' (so-called). It is generally viewed as a legal technicality that 'favors criminals.' In actuality, the rule is designed to 'save' the confession under a tissue of legality on the unsubstantiated assumption that a warning can "balance the playing field" (hear! hear!) in what is otherwise an inherently coercive situation. (Miranda v. Arizona (1966) 384 U.S. 436, at pp. 458, 467, 468, 478.)

The rule that any in-custody interrogation is "inherently coercive" has its genesis in Bram v. United States (1897) 168 U. S. 532. In that case, Bram was arrested on suspicion of murder. He was stripped naked and brought before the Chief Inspector who recounted in a commanding but avuncular fashion what an eye-witness had said. Bram fatally replied, "he could not have seen me from where he was standing."

On appeal, the Supreme Court expressed the view that Bram's confession was involuntary and inadmissible because "it must necessarily have been the result of either hope or fear, or both, operating on the mind." (Id., at p. 563.) The Court sympathetically cited English authorities for the rule that "[a] confession can never be received in evidence where the prisoner has been influenced by any threat or promise; for the law cannot measure ... its effect upon the mind of the prisoner..." (id., at p. 543) and "will not suffer a prisoner to be made the deluded instrument of his own conviction" (id., at p. 547).

Subsequent cases tended to obscure Bram's radical implications. In Brown v. Mississippi (1936) 297 U.S. 278, the Court invalidated a confession obtained by whipping a Negro as he was repeatedly hung by his neck; and, in Brooks v. Florida (1967) 389 U.S. 413, the Court struck a confession obtained by confining the defendant in a barren cage for two weeks on a daily ration of thin soup and 8 ounces of water. Brown and Brooks fall into the "of course" category and are basically insignificant except as evidence of ongoing official depravity. Bram, on the other hand, points to a pristine and incisive logic: a person in custody is by definition 'not free' and if he is 'not free' then anything he says or does simply cannot be 'free and voluntary'. If it is not free and voluntary, then it violates the Fifth Amendment.

We can perhaps wink, nod and make excuses in the average flat-foot situation in order to make use of the golden apple of prosecutorial desire. But it is simply a grotesque sham to maintain that a Miranda warning can rectify nine days of immobilized confinement, as in Lindh's case, or nine months of solitary confinement as in Padilla's. Private Manning's detention in helpless dependency, stripped of social contact and sensory stimulation, has irreversibly violated our Fifth Amendment promise to ourselves.

Padilla's case, foretelling Manning's, also illustrates how solitary confinement hollows out our Sixth Amendment guarantee of a jury trial.

Padilla, an American citizen, was first arrested as a so called 'material witness' to an alleged terrorist plot. After one month of being held incommunicado as a material witness, President Bush sought to preclude any legal challenge to his ongoing civil detention by designating Padilla an 'enemy combatant' and having him transferred to a Navy brig.

There, Padilla was subjected to an improved and cleaned-up version of Lindh's detention. His cell measured nine feet by seven feet. There was a toilet and sink. The steel bunk was missing its mattress. He had no pillow, no sheet, clock, calendar, radio, television, telephone calls or visitors. The windows were covered over and meals were slid through a slot in his door.

Padilla was subject to ongoing sleep deprivation. For most of his captivity, he was unaware whether it was day or night, or what time of year or day it was. When he was brought outside for exercise, it was done at night. His disorientation from not seeing the sun was exacerbated by his captors' practice of turning on extremely bright lights in his cell or imposing complete darkness for durations of twenty-four hours or more. Padilla was routinely put in shackled stress positions for hours at a time. The temperature of his cell was manipulated, making his cell extremely cold for long stretches of time.

Padilla was subjected to exceedingly long interrogation sessions and would be confronted with false information, scenarios, and documents to further disorient him. Often he had to endure multiple interrogators who would scream, shake, and otherwise assault him.

Padilla was treated like an it. When taken out of his cell he was subjected to a ritualized routine of impersonal shackling and sensory deprivation by three or more handlers. Without embarrassment the Government allowed a reporter from the New York Times to witness the handling. Deborah Sontag reported:

"Briefly, his expressionless eyes met the camera before he lowered his head submissively in expectation of what came next: noise-blocking headphones over his ears and blacked-out goggles over his eyes. Then the guards, whose faces were hidden behind plastic visors, marched their masked, clanking prisoner down the hall."

It was later revealed that Padilla's depersonalizing was so total that he was required to sign his name as 'John Doe.' Members of the brig staff told Padilla's lawyers that he became so docile and inactive that his behavior was like that of "a piece of furniture." We deprived him of his I.

According to psychiatrists who examined him, Padilla toggled between a state of absolute terror and total numbness. In a classic 'Stockholm Syndrome', he became distrustful of his own attorneys and identified with the Government. When his lawyers had done a good job of cross examining an FBI agent, Padilla got angry and said that the proceedings had been "unfair to the commander-in chief." Padilla, the psychiatrists concluded, had been "deconstructed and reformed."

Padilla's lawyers protested that it was impossible to prepare a defense with a client who had been so deformed. The motion was denied. The court ruled that Padilla could sue the government for emotional distress or whatever but otherwise his case was proceeding to trial. (United States v. Padilla (April, 2007) U.S.D.C. (So.Dist. Florida) No. 04-60001-CR-Cooke.)

Although the defense arguments suffered from being narrowly drawn so as to fit within various precedents, the court's ruling simply played dumb to the broader and more fundamental issue that was behind the defense claim.

It is axiomatic that the right to a jury trial guarantees more than a stage setting. It envisions a particular kind of trial including a variety of features not specifically mentioned in the Constitution. (See e.g. United States v. Cronic (1984) 466 U. S. 648, 656.)

The Sixth Amendment says nothing about the presumption of innocence or proof beyond a reasonable doubt, but there is no doubt that the kind of trial "envisioned" in the Constitution includes those requirements. (In re Winship (1970) 397 U.S. 358.) A 'jury trial' also includes the right to the assistance of counsel and conversely the opportunity to assist counsel. (Gideon v. Wainwright (1963) 372 U.S. 335, 344.) The right to counsel also 'envisions' the absolute right to act as one's own counsel should one choose to do so. (Faretta v. California (1975) 422 U.S. 806.)

Everything a 'jury trial' is supposed to be, is rendered meaningless if the defendant is reduced to being a stick of furniture. While Padilla's mistreatment was beyond extreme and while one can hope Manning is not being subjected to such depraved sadism, the fact remains that since the days of Cherry Hill it has been known that isolation alone "devours the victim incessantly...and kills." Except as a transparent farce, a jury trial simply cannot take place when a human being, because he was treated as less than a human being, has been turned into a breathing turnip.

The villainy of such a degraded performance masquerading as justice is that, upon his inevitable conviction, Padilla was returned to his solitary cell to continue the torture of isolation for another 20 years. In this way violations of Fifth and Sixth Amendments lead inexorably to violations of the Eighth which prohibits "cruel and unusual punishment."

It is obvious that the Eight Amendment pledges us to refrain from the rack, the screw and the nail. However, the Supreme Court has also recognized that cruelty takes less tangible forms.

In Weems v. United States (1910) 217 U.S. 349, the Court held that it violated the Eighth Amendment to sentence a defendant to "confinement in a penal institution for twelve years and one day, a chain at the ankle and wrist of the offender, hard and painful labor, no assistance from friend or relative, no marital authority or parental rights or rights of property, no participation even in the family council." (Id., at p. 366.)

In Trop v. Dulles (1958) 356 U.S. 8, the Court again focused on the concept of so-called 'civic death'. Six justices agreed that "use of denationalization as a punishment is barred by the Eighth Amendment... [because]... the total destruction of the individual's status in organized society... is a form of punishment more primitive than torture...." (Id., at p. 101.)

Any fool can see how Weems and Trop prohibit inflicting social and sentient death on a prisoner. However, when it comes to supermax regimens, today's high court draws a blank.

In Turner v. Safley (1987) 482 U.S. 78, the Court ruled that restrictive procedures within prison were permissible if they were "reasonably related to legitimate penological interests." (Id., at p. 89.) It did not take long for prison authorities to figure out their cue. By the early 1990's prisons in the United States began instituting "supermax" regimens under the putative justification that "prison safety" required extreme isolation of "dangerous" individuals.

It is indisputable that prisons house dangerous people and require a commensurate discipline in their administration. But it is equally important to understand how words themselves can run riot and lead us to where we ought not to be.

It is true that certain gang leaders who were running murderous criminal operations from within prison were 'dangerous'. But it is a subtlety apparently beyond most jailers and judges to figure out that a mail-bomber like Ted Kazynski, while he was dangerous on the loose, ceases to be dangerous once confined behind bars. At that point, it is gratuitous cruelty to stick him into a box on what amounts to mere playing with a label. And yet, on the basis of precisely that facile and stupid labelling, ordinary prisoners are routinely classified as dangerous and stuck into isolation boxes where they slowly go crazy.

A more dangerous perversion of thought is also at work. In Turner, the Court subtly shifted its focus from the safety of society to the safety of prisons. That shift inevitably ended up circumscribing the Constitution within prison walls thereby constricting what the Constitution means.

We must return to the beginning and remember that a constitution such as ours defines the limits of our social universe. The limits and nature of the Constitution are co-terminous with the limits and nature of our society. Prisons, by contrast, are mechanisms within society that are instituted for the safety of society. They are parts of the social picture that should conform to the broader constitutional context within which they exist. When the focus becomes prison safety, the context has been reduced. The society-at-issue is prison society and constitutional issues get constricted within that reduced sphere.

Precisely that type of constitutional constriction took place in Overton v. Bazetta (2003) 539 U.S. 126, wherein the Court followed up on Turner and ruled that because the very purpose of prison was to impose civil disabilities on persons convicted of crime, the curtailment of an inmate's visitation privileges was not ipso facto unconstitutional. It was not long before Beards v. Banks (2006) 548 U.S. 521 followed through and upheld supermax confinements on the ground that "rehabilitation is a valid penological interest, and deprivation is undoubtedly one valid tool in promoting rehabilitation." (Id., at p. 548, Stevens, J. diss.; & p. 531, Maj. Opn.)

The 'rehabilitation' at issue consisted of a system of gradient and increasingly severe forms of restrictive confinement for prisoners who were disruptive, violent or simply deemed a 'threat' to prison order without any actual misconduct. At all levels of restriction, inmates were confined to cells for 23 hours a day without television or radio. At the highest level inmates were allowed one non-contact visit a month but otherwise no phone calls and no reading materials or personal photographs.

Prisoner Banks, filed suit claiming that his First Amendment rights were infringed. Applying the Turner-Overton standard, and ignoring In re Medley, the Court ruled that, relying on their professional judgement prison officials, had "reached an experience-based conclusion that the policies help[ed] to further legitimate prison objectives." (Banks, at p. 533.)

The deprivation technique of rehabilitation came up again in Wilkinson v. Austin (2005) 545 U.S. 209 wherein it was argued that Ohio prison authorities were committing inmates to supermax segregation without a sufficient due process hearing. After summarizing the effects of isolation and noting that any claim of cruel and unusual punishment was not technically before it (id., at p. 218) Justice Kennedy held that "courts must give substantial deference to prison management" and Ohio's hearing procedures were "adequate to safeguard an inmate's [due process] interests." (Id., at p. 229.)

Wilkinson illustrates the forbidden end of Turner's subtle shift in focus. In Weems, the Court had no difficulty imposing society's standards on the prison regimen. Whatever anyone might say about 'prison safety' or 'deference to prison management' putting someone in chains and depriving him of all civil contact was socially unacceptable. In Wilkinson, the inversion was complete: the Constitution will mean what prison procedures require it to mean.

Wilkinson also closed the circle. If we can begin by treating a human being as the instrument of his own undoing, we can end by twisting him into the instrument of his own punishment. But whatever the tissue of excuses, supermax regimens are nothing less than judicially sanctioned state sadism. Sadism after punishment violates the Eight Amendment; sadism during interrogation violates the Fifth, and sadism as a prelude to trial violates the Sixth.

American jurisprudence has sunk into a degenerate senescence which quibbles over expediencies while ignoring fundamentals. The issue is not whether Banks or Manning have been deprived of reading materials. The issue is whether the Constitution allows anyone to be deprived of his humanity.

To return to our point of departure -- as Justice Brennan once stated in less degraded times, "The true significance of [cruel and unusual] punishments is that they treat members of the human race as non-humans, as objects to be toyed with and discarded. They are thus inconsistent with the fundamental premise of the [Eighth Amendment] that even the vilest criminal remains a human being possessed of common human dignity." (Furman v. Georgia (1972) 408 U.S. 238, 272-273.)

Justice Kennedy knows exactly what supermax does to an individual. He summarized it with an incisive brevity worthy of Occam's Razor. He and the remainder of the high court simply don't care.

Neither does the judicial system as a whole. It is hardly surprising that just this past month, Padilla's civil suit against the Government was summarily dismissed on the grounds that it would inconvenience officials and present a "spectacle" embarrassing to the Government what with "a convicted terrorist, summoning America's present and former leaders to a federal courthouse to answer his charges." (Lebron et al. v. Rumsfeld et al. (Feb. 22, 2002 U.S.D.C., So.Car.) Case No. 2:077-410-RMG.) Imagine that! The infamy of seeking to hold leaders accountable!

The true and damning "spectacle" is the one we shamelessly display for all the world to see. From soldiers in the field to interrogators in basements to academics and technicians at their consoles to cabinet secretaries who quarterback torture, our official culture has become a festival of ghouls. And presiding over this freakshow is a High Court of Deference that bows down to the 'management' decisions of some lowly warden and a Commander in Chief who declaims against "bullying" while allowing a human being in his ultimate charge to be turned into a stick of furniture, because it has been determined "appropriate" and in conformity with our "basic standards."

Ours is a world that has sunk back into the confusion and disaster of a Dark Age. It is not a world of law, but of touhou bouhou where words are the mere accompaniment to action. Worst of all, the American obsession with individualized self has blinded it to the fact that our "basic standards" are not some sort of alms we allow them and those; they set the level and character of our daily existence. The spectacle presented by a paltry hundred protestors outside Quantico was that of a nation which expects of itself and for itself no more than brutality and brutalization.

We must reclaim our self-worth by treating the least part of us as worth respect. Else we are lost.

Kieran Manjarrez is a lawyer (US) and blog author of the Woodchip Gazette. The preceding is an updated abidgement of an article that appeared in December 2010.