I am writing about the continued revelations that the Bush administration is torturing prisoners and not complying with the Constitution and the law. However, I would also like to touch on the fact that prisoners in the United States are in some cases abused in a similar manner to that of foreign detainees.
The Physicians for Human Rights recently released "Broken Laws Broken Lives" and here is an ap article summarizing some of the findings.
For the most extensive medical study of former U.S. detainees published so far, Physicians for Human Rights had doctors and mental health professionals examine 11 former prisoners. The group alleges finding evidence of U.S. torture and war crimes and accuses U.S. military health professionals of allowing the abuse of detainees, denying them medical care and providing confidential medical information to interrogators that they then exploited.
"Some of these men really are, several years later, very severely scarred," said Barry Rosenfeld, a psychology professor at Fordham University who conducted psychological tests on six of the 11 detainees covered by the study. "It's a testimony to how bad those conditions were and how personal the abuse was."
.......
Another Iraqi, identified only as Rahman, reported he was humiliated by being forced to wear women's underwear, stripped naked and paraded in front of female guards, and was shown pictures of other naked detainees. The psychological exam found that Rahman suffered from post-traumatic stress disorder and had sexual problems related to his humiliation, the report said.
.......
The patients underwent intensive, two-day long exams following standards and methods used worldwide to document torture.
"We found clear physical and psychological evidence of torture and abuse, often causing lasting suffering," he said.
It is a fact that Rahman was tortured and so were many more prisoners in US custody. There are similar reports of abuse and torture coming from prisons all over Iraq, Afghanistan and at Gitmo.
Here is an ap report on Gitmo detainees:
"All indicated that they had been horribly treated, particularly in Afghanistan and Pakistan... The stories they told were remarkably similar - terrible beatings, hung from wrists and beaten, removal of clothes, hooding, exposure naked to extreme cold, naked in front of female guards, sexual taunting by both male and female guards/interrogators, some sexual abuse (rectal intrusion), terrible uncomfortable positions for hours. All confirmed that all this treatment was by Americans... Several mentioned the use of electric shocks - like ping pong paddles put under arms - some had this done; many saw it done."
Notes of a US lawyer after meeting Kuwaiti detainees in Guantánamo Bay in January 2005.
Prisoners at Gitmo have clearly been tortured in violation of the US Constitution and international law. The torture and abuse apparently began when the Bush administration decided to sidestep Geneva and the Uniform Code of Military Justice. According to an ap report the Uniform Code of Military Justice required adherence to the 4th amendment and thus by extension required adherence to Geneva. I will discuss the 4th amendment issue in greater detail below.
Here is a legal discussion with one of the detainees lawyers Neal Katyal of Georgetown University school of law where he discusses among other things the Bush administrations attempt to abandon Geneva.
Finally, of course, there is the serious problem for the government that army regulations already implement the Geneva Convention and have done so for nearly 50 years, so self-execution of the treaty is beside the point.
.........
The point here is simple: if America is seen as giving political actors like the President the ability to essentially suspend the Geneva Conventions through creative re-interpretation, there is nothing to stop other nations from doing the same to our troops when they are captured. That is why uniformed lawyers have been the chief obstacle to the reckless disregard of our international obligations since the attacks of September 11, and why judicial management of detainees at Guantanamo shouldn't be chalked up to "coddling terrorists." As Air Force General Jack Rives stated in the documents "consideration should be given to the possible adverse effects on U.S. Armed Forces culture and self-image, which suffered during the Vietnam conflict and at other times due to perceived law of armed conflict violations.[T]he DoD Law of War Program in 1979 and subsequent service regulations, greatly restored the culture and self-image of U.S. Armed Forces. Consideration should be given to whether implementation of such techniques is likely to result in adverse impacts for DoD personnel who become POWs, including possible perceptions by other nations that the United States is lowering standards related to the treatment of prisoners, generally.".
Army regulations that implemented Geneva required adherence to the Constitution and international law.
Applicable international law is as follows:
Body of Principles for the Protection of All Persons Under Any Form of Detention.
The United Nations Human Rights Committee has stated that "to ensure protection of the dignity of a person who is being searched by a state official, a body search should only be conducted by someone of the same sex" [ General Comment 16 to Article 17 of the ICCPR, "Compilation of General Comment and General Recommendations Adopted by Human Rights Treaty Bodies," UN Document HRI/GEN/Rev.3, 15 August 1997.].
A violation of the treaty is clearly humiliating treatment and amounts to war crimes under Geneva. Furthermore, the fourth amendment right to privacy is a prisoners right not to have to shower, change, use the bathroom in front of guards of the opposite sex and some would argue is a prisoners right to be fully free of cross-gender search and surveillance in their living area. The military takes an oath to defend the constitution, which would include the 4th, 8th and 14th amendments and the Bush administration should not be trying to get soldiers to violate their oath or commit war crimes.
In addition, it appears that the abandonment of Geneva by the Bush administration in order to make detainees suffer led to other abuses and other forms of torture that the Bush administration now blames on the troops.
It is time to get back to complete compliance with the Constitution and international law, however I view it also as an opportunity to eradicate abuses in our own prison system wherever they may occur.
There are many reasons why we should get back to complete compliance with the law and chief among them is that it will restore our reputation in the world as respecting human rights and civil liberties, in addition our own troops are safer as a result and finally we should uphold the promise of liberty for even those that are incarcerated in our own prisons and jails. How we treat our prisoners is a direct reflection on us as a country.
Here is a link to a legal review that covers some of these issues that was done at the University of Indiana. The author states that:
The courts' various approaches are in need of serious reformation in order to promote uniform protection of inmates' dignitary interests. The courts should: (1) explicitly recognize inmates' constitutional right to be free from cross-gender searches and cross-gender monitoring while nude; (2) rigorously apply the Turner test; and (3) limit the currently extensive deference afforded to prison administrators.
......
Cross-gender search regulations that require inmates to expose their naked bodies to opposite-sex officers or that allow opposite-sex officers to touch their genital area is degrading and causes humiliation and embarrassment for many inmates. As the Fourth Circuit recognized:
"Most people . . . have a special sense of privacy in their genitals, and involuntary exposure of them in the presence of people of the other sex may be especially demeaning and humiliating. When not reasonably necessary, that sort of degradation is not to be visited upon those confined in our prisons."
Demeaning and humiliating experiences caused by cross-gender searches and surveillance severely impede the overall success of rehabilitation: "`Treatment that degrades the inmate, invades his privacy, and frustrates the ability to . . . gain self-respect erodes the very foundations upon which he can prepare for a socially useful life.'"
Some courts and commentators have suggested that the presence of female guards in a male prison has a "normalizing" effect on male inmates that furthers the penological goal of rehabilitation. However, such a suggestion is hardly convincing in the context of cross-gender search and monitoring regulations. In society at large, people do not undress, shower, or use the restroom in the presence of strangers of the opposite sex. This type of policy "aggravates, rather than mitigates, the disparity between the prison environment and society at large." Therefore, such policies are wholly inapposite to the rehabilitative goals of the penal institution.
.......
Courts should explicitly recognize inmates' constitutional right to be free from cross-gender searches and surveillance. Sources of this constitutional right are found both in the privacy rights of the Fourth Amendment and the penumbras of the Bill of Rights. Forced inspections and observations of inmates by opposite-sex officers are degrading, humiliating, and violate the basic tenets of human decency.
........
Alternatively, inmates can assert their right to be free from cross-gender searches and surveillance through the Eighth Amendment. However, in analyzing male inmates' Eighth Amendment claims, courts must avoid employing male-gender stereotypes. Perpetuating these stereotypes not only causes further harm to male inmates and society, but it also deprives male inmates of any opportunity to gain legal recognition of "harm."
It has been said that "the way a society treats those who have transgressed against it is evidence of the essential character of that society." Refusing to protect inmates' bodily integrity from the probing eyes and hands of opposite-sex officers reveals indifference and disrespect. Should not our society reflect a character of the highest integrity and fairness? We should require no less..
Here are a few exerpts from some of the decisions relating to prisoner abuse.
Canedy v. Boardman, 16 F.3d 183, 185 (7th Cir. 1994) (citing York v. Story, 324 F.2d 450, 455 (9th Cir. 1963)) ("The desire to shield one's unclothed figure from views of strangers, and particularly strangers of the opposite sex, is impelled by elementary self-respect and personal dignity.").
Supreme Court Justice John Paul Stevens
Hudson v. Palmer, 468 U.S. 517, 552 (1984) (Stevens, J., dissenting in part and concurring in part)
"Without the privacy and dignity provided by fourth amendment coverage, an inmate's opportunity to reform, as small as it may be, will further be diminished. It is anomalous to provide a prisoner with rehabilitative programs and services in an effort to build self-respect while simultaneously subjecting him to unjustified and degrading searches and seizures.".
It is important to note that prisoner's do not have a right to modesty i.e. to not be seen by persons of the same sex, however they do have a right to privacy which is the right not to be seen by people of the opposite sex.
To be forced to expose yourself in front of someone of the opposite sex can be brutal and as the report by physicians for human rights documents it can at times particularly when routine rise to the level of psychological torture. It is my opinion that violations of prisoners privacy rights have been one of the most brutal practices employed by the military in detention and interrogation operations (if not the most brutal) and it needs to stop.
I wrote this diary covering one aspect of the torture issue, because I believe it is at the core of the US detention problem. The Bush administration clearly set out to humiliate and torture prisoners in violation of Geneva and the US constitution and that has got to stop. The larger problem (outside of the unitary executive theory) is that the Bush administration does not believe in individual liberty. Bush has put two justices on the Supreme Court that clearly do not believe in individual liberty and that makes four total that do not believe in individual liberty.
If the issue of prisoner's privacy rights goes to the Supreme Court, due to the difference in judicial philosophy, the likely outcome is that we will win 5-4. In addition, the Supreme Court in its most recent decision Boumediene vs. Bush said that the Constitution applies at Gitmo, which is a major victory for those of us that care about civil liberties. However, like so many issues its a reminder of just how important Supreme Court appointments are.
I would ask folks to contact Barack Obama and ask him to oppose torture and all forms of ill-treatment including violations of prisoner's privacy rights both at home and abroad. If Barack Obama's attorney general supports respecting prisoners privacy rights it will go a long way towards ensuring that male and female prisoners all throughout our country have their privacy/dignity respected.