December 15, 2010

Flunking Gandhi's Test

"A nation's greatness is measured by how it treats its weakest members." -- Mohandas K. Gandhi.

A prisoner is utterly and completely at the mercy of the government which has imprisoned him. He relies upon his jailers for food, for safety, for medical care, and every other necessity of life. Any comforts or personal items given to him from the outside are subject to immediate confiscation and thus private possessions are, as much as anything else, dependent upon the fiat of the guards and wardens who run the institution. Prisoners lack nearly every civil liberty which you and I, as free people, take for granted. A prisoner may easily counted among the weakest members of a society. How we as a society treat our prisoners is a measure of our moral worth.

By this yardstick, we are a badly deficient society. Since May, a man who has been accused of a crime but not yet convicted is being held in solitary confinement in a military prison. Now, there is no particular reason to love PFC Bradley Manning; if he is guilty as charged, he was personally responsible for the leaking of all sorts of classified documents, many of which wound up on Wikileaks and have caused our nation no end of embarrassment and, at least temporarily, weighed down our ability to engage in diplomacy. If he is convicted of these crimes, he should be punished.

But he hasn't been convicted yet. Of anything. As of right now, PFC Manning is an innocent man. Our legal system, ostensibly, presumes his innocence until such time as a verdict is entered against him. And yet this is how a citizen of the United States who has, as of yet, been convicted of no crime and has demonstrated no propensity to violence is being treated by the government:
For 23 out of 24 hours every day -- for seven straight months and counting -- he sits completely alone in his cell. Even inside his cell, his activities are heavily restricted; he's barred even from exercising and is under constant surveillance to enforce those restrictions. ... [Bradley is] denied ... a pillow or sheets for his bed (he is not and never has been on suicide watch). ... [T]he brig's medical personnel now administer regular doses of anti-depressants to Manning to prevent his brain from snapping from the effects of this isolation.
I'm no prison warden, but I understood solitary confinement to be appropriate for prisoners who are violent to other prisoners or to prison personnel. And bear in mind that, at this point in time, PFC Manning is entitled to a presumption of innocence. The government has not proven, beyond a reasonable doubt in a court of competent jurisdiction, that PFC Manning has done anything wrong.

Let us presume, however, that Manning had been convicted already. Let us presume further that we could prove that what Manning did -- leaking thousands of documents in violation of secrecy orders -- had serious consequences like people getting killed, wars being prolonged unnecessarily, and human misery around the globe extended where it could have been ameliorated. Again, I'm not suggesting that criminals like that should not be punished.

We seem to have lost sight of the fact that incarceration, without any particular enhancements, is already a really bad, nasty, punitive thing to do to a person. Prison is a Very Bad Place. Being deprived of one's liberty is a Very Bad Thing. What's more, prison causes one to involuntarily associate with a society of nearly exclusively other criminals and prison guards. No loving family, few friends, boring work, and a soul-crushingly institutional environment.

This would be awful even without the fear of violence and prison rape about which society at large is already is far too cavalier. PFC Manning would also earn himself a dishonorable discharge from the military, a permanent stain on his character and reputation which he would carry for the rest of his life even after completing his prison sentence. He will have lost his future.

You would not voluntarily submit to this, nor would I. This is the price, and the threat, for violating society's standards of minimally acceptable behavior. It is the penalty for betraying one's country, one's word, one's honor. And if Manning is convicted of his crimes, we will be justified in doing these things to him.

What's more, there are good reasons to hold accused prisoners in confinement. Some are flight risks. Others may be difficult to relocate by the time of trial. Others have demonstrated that they are dangerous or are likely to engage in conduct contrary to the interests of justice, like by intimidating people who might be witnesses against them at trial. Some just plain can't post bail. So I have no particular beef with the idea that PFC Manning should be incarcerated pending trial.

So it's not that Manning needs to be treated with kid gloves; I'm not saying that we should put him up in the Hilton or even let him go free. But when a legitimate question can be raised that a man is being tortured, we've crossed the line from acceptable to unacceptable behavior.

"Torture?" you ask. "Is solitary confinement really 'torture'"? Maybe yes, maybe no. You may recall that the term "torture" is defined by law:
(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality ... .
Anti-depressants are mind-altering substances. Granted that in many instances they are administered for therapeutic rather than punitive purposes and many people take them voluntarily. Prolonged isolation from social contact may, and often do, have the effect of "disrupting profoundly the senses or personality" of the person so treated; prolonged confinement and deprivation of interaction with other people very often has the effect of causing depression on the person so deprived.

Solitary confinement of a prisoner need not be "torture" if it is imposed as a "lawful sanction" for something. "Sanction" indicates that someone has done something wrong to earn this treatment; it is a phrase laden with implications of punishment. The government is not yet in a position to impose a "lawful sanction" on PFC Manning because PFC Manning has not yet been convicted of any crime; he has not shown any propensity to violence while in confinement.

So is this "torture"? What I don't know is the intent of Manning's jailers; this is not readily ascertainable and I hesitate to rely on Greenwald's article alone to determine this. But the objective, verified* facts of Manning's treatment are not in substantial dispute; he is, in fact, being treated this way. Using the definition of 18 U.S.C. 2340, it sure looks like torture. If the intent is to make Manning's life behind bars uncomfortable, then yes, this is torture.

Once we started saying "Sometimes torture is morally justifiable," that led to us saying "Some prisoners have done things so bad that they deserve to be tortured," and now, we're at the point that there is a massive shrugging-off of the fact that a man who has been convicted of no crime, a man we ought to presume is innocent, is being treated thus for no apparent good reason.

I have said for a long time that we ought not to torture our prisoners -- not because they don't deserve it, and not because we would expect to be treated so well were positions reversed, and not because torture is ineffective (although that is subject to at least reasonable debate), but because torture is contrary to our own collective moral standards. We should not torture, because we are better than that and for no other reason.

When we betray our own standards once, it becomes easier to betray them later. Society's disregard of such treatment of a presumptively innocent man is the next step down that road. That is why the rule should be simple and absolute: no torture, ever.

Again, this might not be torture as that term is legally defined. But it is also not a good example of how we ought to treat someone who has not yet been convicted of any crime. Whether it's torture or not, we have a Constitutional prohibition on cruel and unusual punishments. I rather doubt that most other prisoners in this brig are getting treated the way Manning is. I rather suspect that his treatment is motivated by a desire to inflict suffering for the sake of inflicting suffering -- the very definition of cruelty.

Let PFC Manning be treated like any other accused but as-yet-unconvicted military prisoner. Let him stand trial, and if convicted, let him then receive the full punishment specified by law. But let us not, in our zeal to see a crime punished, lose sight of our own ideals.

* Greenwald's article linked above accuses the military prison of denying Manning access to news and other current information in the one hour per day of relief from solitary confinement allowed to him. Manning's jailers dispute this, and only this, portion of Greenwald's factual reporting; they also dispute Greenwald's characterization of the solitary confinement as "torture."


Maxwell James said...

Just FYI, proper spelling is Gandhi.

Transplanted Lawyer said...

Drat! That's a good way to lose credibility right out of the starting gate!

Thank you and I've corrected the error.