Posted on Thu, Jun. 08, 2006  
 

Study: Prison abuse, neglect not unique to state

By Don Thompson
Associated Press

SACRAMENTO - Abuse and neglect in California prisons is so bad that it has brought condemnation from national experts and forced a federal judge to seize control of inmate health care.

Now a federal commission says in a 126-page report made available in advance to the Associated Press that similar problems exist in many prisons and jails across the nation.

California has become known as a national leader in areas such as environmental protection and energy efficiency. In this case, it's leading by bad example, said state Sen. Gloria Romero, D-Los Angeles, a member of the national Commission on Safety and Abuse In America's Prisons.

The first national prison commission in three decades is presenting its findings and recommendations today to the U.S. Senate Judiciary subcommittee on corrections and rehabilitation in Washington, D.C.

Also today, federal judges from Sacramento and San Francisco will hold an unusual hearing in the state capital to consider expanding federal control of inmates' medical treatment to cover mental health care.

The review stems from an ongoing dispute between a non-profit inmate rights group that filed class-action lawsuits against state officials over how the prison system should operate. The suit was settled shortly after it was filed in 2001, but the two sides have been sparring since over implementing the details.

Problems that have made headlines in California echo in other lockups for 2.2 million inmates nationwide, the commission said in its report. They include:

• Medical care so poor that inmates often die of neglect.

• A ``code of silence'' that protects wrongdoers while punishing whistle-blowers.

• Crowding and underfunding that leaves inmates with living space the size of a twin bed.

• An emphasis on punishment, including mentally damaging periods of isolation, instead of on programs that could help convicts prepare for a return to society.

``If you want to know anything that's wrong with prisons, come to California,'' said Romero, the Senate majority leader who has held many hearings into prison problems. ``How not to run a prison -- that's what California has been about for decades.''

Elaine Jennings, representative for the newly renamed California Department of Corrections and Rehabilitation, said the department is making progress but the national report shows the challenges it faces.

The adult and juvenile prison systems were combined nearly a year ago to give top corrections administrators more control over individual prisons and allow better coordination. Jennings said there is better security, separation of inmates, and employee discipline than before.

New interim Corrections Secretary James Tilton promises to restore education and vocational programs that failed under his two predecessors.

The commission's findings that more prison rehabilitation was needed found an unusual ally in Chuck Alexander, executive vice president of the California Correctional Peace Officers Association.

``We're going to have `rehabilitation' stenciled on our badges, but that's as far as it got. The educational and vocational programs have been virtually shut down,'' Alexander said.

Such programs are needed to keep ex-convicts from quickly returning to prison, he said.

Far from locking society's problems safely behind bars, poor treatment virtually guarantees that most inmates will eventually get out and cause more harm, the national commission said.

``It's based on a false premise that you lock people away and they somehow get rehabilitated. And they really don't get rehabilitated at all,'' Romero said. ``Seven of 10 parolees will come back, most after committing new crimes.''

 http://www.washingtonpost.com/wp-dyn/articles/A12400-2005Apr23.html

Rights Groups Reject Prison Abuse Findings 

By Josh White
Washington Post Staff Writer
Sunday, April 24, 2005; Page A20 
 

Human rights groups expressed dismay yesterday over the Army's findings exonerating U.S. generals of prisoner abuse in Iraq, and renewed requests for an independent probe to examine the culpability of senior military and civilian defense officials.

In a report released yesterday, the New York-based Human Rights Watch called on U.S. Attorney General Alberto R. Gonzales to appoint a special prosecutor to investigate the roles of all U.S. officials "who participated in, ordered, or had command responsibility for war crimes or torture." Human Rights Watch also asked Congress to launch an independent and bipartisan probe -- similar to that of the 9/11 commission -- to investigate the roles of senior leaders in abuse, including President Bush, Defense Secretary Donald H. Rumsfeld and former CIA director George J. Tenet.

The group, along with Amnesty International, yesterday also assailed the Army's findings that top generals in Iraq should bear no official responsibility for abuse at the Abu Ghraib prison or for failures that led to widespread problems at detention facilities elsewhere in Iraq. Noting the similarities in alleged abuse at the U.S. prison in Guantanamo Bay, Cuba, at facilities in Afghanistan and across Iraq, the groups said the military appears incapable of investigating itself.

"We believe that if the U.S. is going to wipe away the stain of Abu Ghraib, it needs to investigate those at the top who ordered or condoned abuse, and to come clean on what the president has authorized and repudiate once and for all the mistreatment of detainees in the war on terror," said Reed Brody, Human Rights Watch special counsel. "The fact that you have the same kinds of abuses going on in three different theaters suggests that the responsibility is higher up."

Government and military officials said Friday that an Army inspector general's investigation had concluded that four top general officers who worked in Iraq were cleared of wrongdoing, including Lt. Gen. Ricardo S. Sanchez, who led U.S. troops on the ground after major combat operations in 2003. In a series of military investigations into abuse, Sanchez and his deputies had been accused of failing to properly plan for and supervise massive U.S. detention and intelligence-gathering operations, but the probes also found that Sanchez's team was working under extremely difficult circumstances.

Instead of blaming top officials, the military has placed either criminal or administrative charges against 125 individuals in connection with 350 abuse cases in Iraq and Afghanistan. The only general officer to face official sanction so far is Brig. Gen. Janis L. Karpinski, who supervised U.S. detention facilities in Iraq as commander of the 800th Military Police Brigade. Sources have said Karpinski is expected to receive a reprimand.

Sen. John W. Warner (R-Va.), chairman of the Senate Armed Services Committee, has vowed to hold more hearings until he is satisfied that the proper people are held accountable. Defense officials have said their 10 major investigations, 20 Senate hearings and 40 Capitol Hill staff briefings have been open and thorough.

"We've done extensive investigations, and we remain committed to comprehensive investigation and review of all aspects of detention operations," said Lt. Col. Joe Yoswa, a Pentagon spokesman. "When Mr. Warner or his fellow congressmen ask for more information from the Department of Defense, we've been very forthcoming in open hearings and in closed hearings. I'm sure, should they need any more information, we will assist them in getting it." 

Human rights groups singled out Sanchez's exoneration as particularly troubling, given that thousands of pages of Army investigative documents released in recent months appear to show patterns of abusive tactics and tacit approvals of some especially harsh methods. Sanchez also approved using military working dogs in interrogations to strike fear in detainees, a tactic that was captured in digital photographs taken at Abu Ghraib.

"The total exoneration of Sanchez runs counter to what previous investigations have strongly suggested, which is that there was a failure at the command level and not just aberrant behavior by individual guards and interrogators," said Alistair Hodgett, a spokesman for Amnesty International USA. "This can't be the last word, but it does seem to confirm that only an independent investigation would be capable of setting out who bears responsibility and what their punishment should be."

The American Civil Liberties Union, which after a lawsuit secured tens of thousands of pages of Army documents relating to abuse investigations, denounced the military's findings. The abuse has "tarred America's image in the world community," said ACLU Executive Director Anthony D. Romero.

"As we continue to receive more information, the government cannot ignore the systemic nature of the torture that implicates the military chain of command to the very top," Romero said in a statement.

Anthony Vieira, a California attorney who has been involved in representing Pfc. Lynndie R. England against abuse charges related to the Abu Ghraib photographs -- in which she is pictured holding a detainee on the end of a leash, one of the most notorious icons of the scandal -- said yesterday that he is disappointed by the Army's findings and that he doubts senior leaders will be held responsible for their actions or inaction.

"Anyone who's been in the military knows that the chain of command is responsible for what is going on below them," Vieira said. "All this stuff was going on for a long time, and the contention that they didn't know just doesn't fly."

 sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2004/12/03/EDGPAA4S5C1.DTL

Sanctioned abuse within prisons 

Friday, December 3, 2004 
 

THE NEARLY 11,000 female inmates held in eight facilities of the California Department of Corrections are regularly subjected to routine pat- searches by male guards. It is a practice that should be revised to be brought in line with more humane policies in place in many other states. 

The purpose of the search, officially known as a ''clothed body search,'' is to determine if inmates are smuggling ''contraband'' such as drugs or weapons. Any inmate suspected of smuggling prohibited material can be searched. In addition, when inmates move from one area of the prison to another -- such as when they go from the housing unit to the prison vocational programs or classrooms -- they can be searched at random, often by male officers. ''We can randomly pull individuals out of the line and do random searches,'' Javier Cavazos, the public information officer at Valley State Prison for Women in Chowchilla, told us. 

Cavazos and other CDC officials said that male officers undergo training to ensure that the searches conform to strict guidelines, which includes no grazing of breast or genital areas. Officials also note that male officers are not permitted to conduct more invasive strip searches. 

The problem is that even clothed body searches can be traumatic for some women, especially if they have been victims of sexual abuse, which is the case with a high proportion of female inmates. There is also the danger that the searches may be carried out in an inappropriate fashion, regardless of the training an officer has received. 

In 1993, the U.S. Circuit Court of Appeals in San Francisco found, in Jordan vs. Gardner, a case brought on behalf of female inmates in Washington state, that ''there is a high probability of great harm, including severe psychological injury and emotional pain and suffering to some inmates from these searches.'' This finding, the court said, ''was buttressed by testimony regarding the inmate witnesses' personal history, which the court found to be credible.'' 

The court also found that men searching women is very different from women officers searching male inmates. ''The record in this case supports the postulate that women experience intimate touching by men differently from men subject to comparable touching by women.'' 

Because of staffing patterns, CDC officials maintain that it would be infeasible to limit pat searches to female officers. For example, at the Central California Women's Facility in Chowchilla, a prison with 3,100 inmates, there are 260 male officers and 119 female officers. 

But many other states have made considerable efforts to limit the types of searches male officers may conduct. 

New York, for example, has what seems like an eminently reasonable -- and according to officials there, an entirely workable -- policy. It requires female officers to conduct pat searches of female inmates ''whenever possible.'' A male officer is not allowed to search a female inmate ''over her objection'' when a female officer ''is present and available to perform the search'' or the inmate has an identification card with the notation ''CGPFE,'' which stands for ''Cross Gender Pat Frisk Exemption.'' 

Inmates get an exemption only if they have been diagnosed as suffering from Axis 1 Post Traumatic Stress Disorder, a recognized psychiatric disorder in the "Diagnostic and Statistical Manual of Mental Disorders." Male officers are allowed to conduct a search only in emergencies, or if ordered to do so by a supervisor. 

California Prison Focus, a nonprofit advocacy organization, last month sent a letter to Jeanne Woodford, the new director of the California Department of Corrections who was previously the warden at San Quentin Prison, asking her ''to act immediately'' to end the practice of cross-gender pat searches. 

''The evidence from New York, Michigan and other states, in addition to the underlying evidence in Jordan vs. Gardner, shows beyond doubt that cross- gender pat searches are traumatic for women who have a history of sexual abuse or assault.'' 

Woodford should order a stop to this abusive practice. 

More prison abuse
Not Iraq -- but California
 

Monday, July 05, 2004 - One need not go so far as Iraq and Abu Ghraib to find horrific stories of prison abuse. There's plenty much closer to home -- a good number of them in California.

A new state study confirms that California's once-proud prison system has become a statewide shame. Guards are too powerful, too self-protective and overpaid. The system is rife with abuse, not only in the ways inmates are treated, but also in how taxpayer money is spent.

The commission that put out the study, headed by former Gov. George Deukmejian, has offered 200 recommendations for cleaning up California's prisons. Unlike countless other government studies, this is one that cannot be ignored -- no matter how much special interests may resist it.

We don't tolerate barbaric prisons in Iraq, and we shouldn't tolerate them in California, either.

 http://seattletimes.nwsource.com/html/opinion/2001971935_peirce05.html

Monday, July 05, 2004, 12:00 A.M. Pacific 

Neal Peirce / Syndicated columnist
Abu Ghraib hits home 
 

Are Americans finally seeing the connections — that the incidents of U.S. soldiers beating and humiliating detainees at Iraq's Abu Ghraib prison have direct parallels in patterns of inmate abuse reported in our own state and local prison systems? 

For some of us, the answer is yes. The Abu Ghraib news has triggered the biggest wave of interest in U.S. penal conditions in many years, says Kara Gotsch, spokesperson and trend-watcher for the American Civil Liberties Union's National Prison Project. 

Careful media watchers can hardly miss the direct Iraqi-U.S. penal connections, highlighted by The New York Times' Fox Butterfield, The Washington Post's David Finkel and others. 

Lane McCotter, selected by Attorney General John Ashcroft to head a team of Americans to reopen Iraq's prisons, was forced in 1997 to resign as director of Utah's prisons after a case in which a mentally ill inmate died after guards left him shackled naked to a restraining chair for 16 hours. McCotter is the official who suggested that Abu Ghraib be used as the main U.S. prison in Iraq, and directed training of the guards there. 

Charles Graner, called the ringleader of the guards who assaulted and abused prisoners at Abu Ghraib, was formerly a guard at State Correctional Institution — in southwestern Pennsylvania. An inmate accused Graner of slipping a razor blade into his food, then joining with other guards in punching, kicking and slamming him to the floor. When the inmate yelled "Stop, stop," one of the guards said: "Shut up ... before we kill you." Among other allegations made at the same facility: guards beat prisoners, spit in their food, wrote "KKK" in one beaten prisoner's blood. 

Are such incidents highly isolated in American prisons? Not likely. More than 40 state prison systems have been under court order in recent decades to remedy conditions of overcrowding, poor food or lack of care, according to Marc Mauer of the Washington-based Sentencing Project. 

During much of the time George W. Bush was governor of Texas, state prisons there were under a federal consent decree. U.S. District Judge William Wayne Justice wrote in a 1999 opinion: "Many inmates credibly testified to the existence of violence, rape and extortion in the prison system." 

Mauer cautions that while there have been "horrendous abuses" in American prisons, torture-like practices are far from the norm. The character of a prison's leadership is critical; even an overcrowded prison that sets clear rules and treats prisoners with respect can avoid abusive situations. 

But there's an inherent problem, Mauer insists: "Prison is a degrading, humiliating, negative experience. Prisons keep people in cages against their will. Prisons are inherently tension-laden places." 

And then factor in the pressures of rising inmate numbers and budgets. The United States now incarcerates a stunning 2.1 million people, one of every 143 residents. Facilities, notes the ACLU's Gotsch, are increasingly overcrowded, staffs stretched to the limit, training spotty, recruitment tough. Young guard recruits, just out of high school, may be paid as little as $16,000 to $18,000 a year while working in violent and hostile environments. 

Then there's race. In 2002, 10 percent of black males age 20 to 39 (prime developmental and production years) were in prison, but only 2.4 percent of Hispanic males and 1.2 percent of white males the same age. 

Increasingly, prisons aren't close to inmates' homes and relatives, but in distant rural areas. Prisons are a big growth industry in rural America — about 350 new ones since 1980, representing more than half of all new prison construction. 

So what do we get? Overwhelmingly white, rural guards using state-sanctioned lethal force to imprison a heavily black inmate population. The result is a huge cultural chasm. And as it has been through American history, whites are in control — as they were during our long national history with slavery, as they were from the 1870s to the 1920s, when lynchings of African Americans were widely tolerated in the Deep South and some Northern states too. 

As for Muslim inmates, American guards rubbing pork on their dishes didn't just occur in Abu Ghraib; it has happened in U.S. prisons too. 

It's clear we Americans have a huge problem on our hands. We passed and maintain harsh sentencing policies that reach far beyond the truly dangerous criminals who clearly need to be kept locked up. We consistently ignore the tensions, the brutality, the racism engendered in our prisons. We fail to pursue alternatives to incarceration very seriously. No national leaders step forward with a clear, effective reform strategy. 

Abu Ghraib blew the whistle on us — the whole world knows what can happen in an American-run prison. But are we listening ourselves? Will we change? 

Neal Peirce's column appears alternate Mondays on editorial pages of The Times. His e-mail address is  nrp@citistates.com

 http://www.washingtonpost.com/wp-dyn/articles/A26602-2004Jun8.html

Legalizing Torture 

Wednesday, June 9, 2004; Page A20 
 

THE BUSH administration assures the country, and the world, that it is complying with U.S. and international laws banning torture and maltreatment of prisoners. But, breaking with a practice of openness that had lasted for decades, it has classified as secret and refused to disclose the techniques of interrogation it is using on foreign detainees at U.S. prisons at Guantanamo Bay and in Afghanistan and Iraq. This is a matter of grave concern because the use of some of the methods that have been reported in the press is regarded by independent experts as well as some of the Pentagon's legal professionals as illegal. The administration has responded that its civilian lawyers have certified its methods as proper -- but it has refused to disclose, or even provide to Congress, the justifying opinions and memos. 

This week, thanks again to an independent press, we have begun to learn the deeply disturbing truth about the legal opinions that the Pentagon and the Justice Department seek to keep secret. According to copies leaked to several newspapers, they lay out a shocking and immoral set of justifications for torture. In a paper prepared last year under the direction of the Defense Department's chief counsel, and first disclosed by the Wall Street Journal, the president of the United States was declared empowered to disregard U.S. and international law and order the torture of foreign prisoners. Moreover, interrogators following the president's orders were declared immune from punishment. Torture itself was narrowly redefined, so that techniques that inflict pain and mental suffering could be deemed legal. All this was done as a prelude to the designation of 24 interrogation methods for foreign prisoners -- the same techniques, now in use, that President Bush says are humane but refuses to disclose. 

There is no justification, legal or moral, for the judgments made by Mr. Bush's political appointees at the Justice and Defense departments. Theirs is the logic of criminal regimes, of dictatorships around the world that sanction torture on grounds of "national security." For decades the U.S. government has waged diplomatic campaigns against such outlaw governments -- from the military juntas in Argentina and Chile to the current autocracies in Islamic countries such as Algeria and Uzbekistan -- that claim torture is justified when used to combat terrorism. The news that serving U.S. officials have officially endorsed principles once advanced by Augusto Pinochet brings shame on American democracy -- even if it is true, as the administration maintains, that its theories have not been put into practice. Even on paper, the administration's reasoning will provide a ready excuse for dictators, especially those allied with the Bush administration, to go on torturing and killing detainees. 

Perhaps the president's lawyers have no interest in the global impact of their policies -- but they should be concerned about the treatment of American servicemen and civilians in foreign countries. Before the Bush administration took office, the Army's interrogation procedures -- which were unclassified -- established this simple and sensible test: No technique should be used that, if used by an enemy on an American, would be regarded as a violation of U.S. or international law. Now, imagine that a hostile government were to force an American to take drugs or endure severe mental stress that fell just short of producing irreversible damage; or pain a little milder than that of "organ failure, impairment of bodily function, or even death." What if the foreign interrogator of an American "knows that severe pain will result from his actions" but proceeds because causing such pain is not his main objective? What if a foreign leader were to decide that the torture of an American was needed to protect his country's security? Would Americans regard that as legal, or morally acceptable? According to the Bush administration, they should.

© 2004 The Washington Post Company 

Memo Offered Justification for Use of Torture 
Justice Dept. Gave Advice in 2002 

By Dana Priest and R. Jeffrey Smith
Washington Post Staff Writers
Tuesday, June 8, 2004; Page A01 
 

In August 2002, the Justice Department advised the White House that torturing al Qaeda terrorists in captivity abroad "may be justified," and that international laws against torture "may be unconstitutional if applied to interrogations" conducted in President Bush's war on terrorism, according to a newly obtained memo.

If a government employee were to torture a suspect in captivity, "he would be doing so in order to prevent further attacks on the United States by the Al Qaeda terrorist network," said the memo, from the Justice Department's office of legal counsel, written in response to a CIA request for legal guidance. It added that arguments centering on "necessity and self-defense could provide justifications that would eliminate any criminal liability" later.

The memo seems to counter the pre-Sept. 11, 2001, assumption that U.S. government personnel would never be permitted to torture captives. It was offered after the CIA began detaining and interrogating suspected al Qaeda leaders in Afghanistan and elsewhere in the wake of the attacks, according to government officials familiar with the document.

The legal reasoning in the 2002 memo, which covered treatment of al Qaeda detainees in CIA custody, was later used in a March 2003 report by Pentagon lawyers assessing interrogation rules governing the Defense Department's detention center at Guantanamo Bay, Cuba. At that time, Defense Secretary Donald H. Rumsfeld had asked the lawyers to examine the logistical, policy and legal issues associated with interrogation techniques.

Bush administration officials say flatly that, despite the discussion of legal issues in the two memos, it has abided by international conventions barring torture, and that detainees at Guantanamo and elsewhere have been treated humanely, except in the cases of abuse at Abu Ghraib prison in Iraq for which seven military police soldiers have been charged.

Still, the 2002 and 2003 memos reflect the Bush administration's desire to explore the limits on how far it could legally go in aggressively interrogating foreigners suspected of terrorism or of having information that could thwart future attacks.

In the 2002 memo, written for the CIA and addressed to White House Counsel Alberto R. Gonzales, the Justice Department defined torture in a much narrower way, for example, than does the U.S. Army, which has historically carried out most wartime interrogations.

In the Justice Department's view -- contained in a 50-page document signed by Assistant Attorney General Jay S. Bybee and obtained by The Washington Post -- inflicting moderate or fleeting pain does not necessarily constitute torture. Torture, the memo says, "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

By contrast, the Army's Field Manual 34-52, titled "Intelligence Interrogations," sets more restrictive rules. For example, the Army prohibits pain induced by chemicals or bondage; forcing an individual to stand, sit or kneel in abnormal positions for prolonged periods of time; and food deprivation. Under mental torture, the Army prohibits mock executions, sleep deprivation and chemically induced psychosis.

Human rights groups expressed dismay at the Justice Department's legal reasoning yesterday.

"It is by leaps and bounds the worst thing I've seen since this whole Abu Ghraib scandal broke," said Tom Malinowski of Human Rights Watch. "It appears that what they were contemplating was the commission of war crimes and looking for ways to avoid legal accountability. The effect is to throw out years of military doctrine and standards on interrogations."

But a spokesman for the White House counsel's office said, "The president directed the military to treat al Qaeda and Taliban humanely and consistent with the Geneva Conventions."

Mark Corallo, the Justice Department's chief spokesman, said "the department does not comment on specific legal advice it has provided confidentially within the executive branch." But he added: "It is the policy of the United States to comply with all U.S. laws in the treatment of detainees -- including the Constitution, federal statutes and treaties." The CIA declined to comment.

The Justice Department's interpretation for the CIA sought to provide guidance on what sorts of aggressive treatments might not fall within the legal definition of torture.

The 2002 memo, for example, included the interpretation that "it is difficult to take a specific act out of context and conclude that the act in isolation would constitute torture." The memo named seven techniques that courts have considered torture, including severe beatings with truncheons and clubs, threats of imminent death, burning with cigarettes, electric shocks to genitalia, rape or sexual assault, and forcing a prisoner to watch the torture of another person.

"While we cannot say with certainty that acts falling short of these seven would not constitute torture," the memo advised, ". . . we believe that interrogation techniques would have to be similar to these in their extreme nature and in the type of harm caused to violate law."

"For purely mental pain or suffering to amount to torture," the memo said, "it must result in significant psychological harm of significant duration, e.g., lasting for months or even years." Examples include the development of mental disorders, drug-induced dementia, "post traumatic stress disorder which can last months or even years, or even chronic depression."

Of mental torture, however, an interrogator could show he acted in good faith by "taking such steps as surveying professional literature, consulting with experts or reviewing evidence gained in past experience" to show he or she did not intend to cause severe mental pain and that the conduct, therefore, "would not amount to the acts prohibited by the statute."

In 2003, the Defense Department conducted its own review of the limits that govern torture, in consultation with experts at the Justice Department and other agencies. The aim of the March 6, 2003, review, conducted by a working group that included representatives of the military services, the Joint Chiefs of Staff and the intelligence community, was to provide a legal basis for what the group's report called "exceptional interrogations."

Much of the reasoning in the group's report and in the Justice Department's 2002 memo overlap. The documents, which address treatment of al Qaeda and Taliban detainees, were not written to apply to detainees held in Iraq.

In a draft of the working group's report, for example, Pentagon lawyers approvingly cited the Justice Department's 2002 position that domestic and international laws prohibiting torture could be trumped by the president's wartime authority and any directives he issued.

At the time, the Justice Department's legal analysis, however, shocked some of the military lawyers who were involved in crafting the new guidelines, said senior defense officials and military lawyers.

"Every flag JAG lodged complaints," said one senior Pentagon official involved in the process, referring to the judge advocate generals who are military lawyers of each service.

"It's really unprecedented. For almost 30 years we've taught the Geneva Convention one way," said a senior military attorney. "Once you start telling people it's okay to break the law, there's no telling where they might stop."

A U.S. law enacted in 1994 bars torture by U.S. military personnel anywhere in the world. But the Pentagon group's report, prepared under the supervision of General Counsel William J. Haynes II, said that "in order to respect the President's inherent constitutional authority to manage a military campaign . . . [the prohibition against torture] must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority."

The Pentagon group's report, divulged yesterday by the Wall Street Journal and obtained by The Post, said further that the 1994 law barring torture "does not apply to the conduct of U.S. personnel" at Guantanamo Bay.

It also said the anti-torture law did apply to U.S. military interrogations that occurred outside U.S. "maritime and territorial jurisdiction," such as in Iraq or Afghanistan. But it said both Congress and the Justice Department would have difficulty enforcing the law if U.S. military personnel could be shown to be acting as a result of presidential orders.

The report then parsed at length the definition of torture under domestic and international law, with an eye toward guiding military personnel about legal defenses.

The Pentagon report uses language very similar to that in the 2002 Justice Department memo written in response to the CIA's request: "If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network," the draft states. "In that case, DOJ [Department of Justice] believes that he could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions."

The draft goes on to assert that a soldier's claim that he was following "superior orders" would be available for those engaged in "exceptional interrogations except where the conduct goes so far as to be patently unlawful." It asserts, as does the Justice view expressed for the CIA, that the mere infliction of pain and suffering is not unlawful; the pain or suffering must be severe. 

A Defense Department spokesman said last night that the March 2003 memo represented "a scholarly effort to define the perimeters of the law" but added: "What is legal and what is put into practice is a different story." Pentagon officials said the group examined at least 35 interrogation techniques, and Rumsfeld later approved using 24 of them in a classified directive on April 16, 2003, that governed all activities at Guantanamo Bay. The Pentagon has refused to make public the 24 interrogation procedures.

Staff writer Josh White contributed to this report. 

Remedies for Prisoner Abuse 

Monday, June 7, 2004; Page A22 
 

THE ONLY WAY to staunch the continuing damage of the prisoner abuse scandal is for the Bush administration to fully document and publicly report on the dozens of cases of homicide and physical abuse in Iraq and Afghanistan, prosecute all those directly responsible, and hold accountable the senior military and civilian officers whose decisions and policies led to the lawlessness. President Bush should meanwhile rewrite prisoner interrogation policies so that they conform to U.S. and international law and should publish the revised procedures so that Americans, and the world, can be assured of their propriety.

For now, there is little reason to hope for such essential corrective actions. On the contrary: There is disturbing evidence that senior U.S. military commanders ignored or covered up serious crimes against prisoners, including homicides, until the disclosure of shocking photographs from the Abu Ghraib prison forced them to act, and that even now the Pentagon's intent is to restrict charges to a small number of mostly low-ranking soldiers and resist all scrutiny of senior commanders and policies. Mr. Bush, for his part, continues to damage his credibility and America's global prestige by insisting that the trouble concerns only a handful of soldiers at one prison in Iraq -- though more than 100 cases of misconduct in Iraq and Afghanistan have now been reported -- and to ignore the need to correct his policies.

The Pentagon boasts that a half-dozen investigations related to the prisoner abuses are underway, in addition to criminal procedures. But these studies are narrow, undermined by conflicts of interest, and leave large areas uncovered -- particularly the possible culpability of senior officers. One officer, Maj. Gen. George R. Fay, the deputy chief of Army intelligence, has been charged with investigating the interrogators in his own chain of command. He is likely to recommend action against a couple of intelligence officers, but he is not capable of seriously reviewing the decisions and policies he or his superiors made. Only one review includes figures outside the military chain of command, but this advisory panel, including two former secretaries of defense, has a mandate only to advise Defense Secretary Donald H. Rumsfeld about gaps in existing inquiries and possible changes in policy, and it has only two months to report.

The advisory panel could play an important role if it pointed out to Mr. Rumsfeld what is clear to most outside experts: Credible investigations of both the criminal cases and the chain of command will require high-level and independent reviews. Regarding the abuse cases, this could take the form of a military court of inquiry headed by a senior officer outside Army intelligence or Central Command, which oversees Iraq. Such a panel could conduct a fresh review of the cases and determine, for example, whether it was correct to close dozens of them without any charges being brought. It could also find out why a number of prisoner death cases remained dormant -- with no death reports filed and in several cases no autopsies conducted -- until after the release of the Abu Ghraib photos.

A separate independent investigation is needed to probe how the Bush administration altered standard Army interrogation policies after 2001 and whether the new policies helped to create the climate of lawlessness that clearly prevailed in a number of detention centers in Iraq and Afghanistan. The connection between CIA interrogations and other secret operations and the abuse of foreign detainees also should be established. Outside expert judgment is needed about whether the secret interrogation techniques now approved for use -- reportedly including hooding, placing prisoners in stress positions, sleep deprivation and intimidation by dogs -- are legal under the Geneva Conventions or related U.S. laws. 

Since the administration is unwilling to undertake such a review, Congress must act. Under the leadership of Sen. John W. Warner (R-Va.), the Senate Armed Services Committee has made a start at this, and Mr. Warner has promised more public hearings. But a means is needed to draw conclusions, hold officials accountable and take corrective action -- including the rewriting and disclosure of interrogation policies. Even as the committee's probe continues, Mr. Warner and other congressional leaders should consider how those tasks can be accomplished.

© 2004 The Washington Post Company 

Terror Cells 
Abuse of Iraqi Detainees Is an Echo of The Cruelties Inflicted on U.S. Inmates 

By Alan Elsner
Special to The Washington Post
Sunday, May 9, 2004; Page D01 
 

Americans from President Bush down have been shocked by reports of abuse of detainees in Iraq's Abu Ghraib prison, and many would agree with Defense Secretary Donald Rumsfeld that such treatment is "un-American." But U.S. human rights activists say there is much evidence that similar abuse regularly occurs in our own prisons, without drawing nearly as much public outrage.

"Wanton violence and malicious assaults are far from unknown in U.S. prisons. Just look at local newspapers around the nation and you will often see reports of lawsuits, settlements and internal investigations documenting the unacceptable use of force by prison staff. The problem is, they don't get much national attention," said Jamie Fellner, U.S. program director for Human Rights Watch. 

One problem, Fellner said, is that no central body collects data on how many inmates are assaulted by staff in U.S. prisons and jails. Additionally, prisons are closed institutions that operate without public oversight by the media or independent monitors. Still, she said, the amount of anecdotal evidence of abuse is enormous.

For example, in September 1996, guards at the Brazoria County jail in Texas staged a drug raid on inmates that was videotaped for training purposes. The tape showed inmates forced to strip and lie on the ground. A police dog attacked several prisoners; the tape clearly showed one being bitten on the leg. Guards prodded prisoners with stun guns and forced them to crawl along the ground. Then they dragged injured inmates face down back to their cells. The county and other defendants eventually settled a lawsuit for $2.2 million.

Michele Deitch, who teaches criminal justice at the University of Texas's Lyndon B. Johnson School of Public Affairs, said there are many similarities between the situation in U.S. prisons and the excesses that have been revealed in Iraq. 

"I see parallels in the levels of abuse, the humiliation and degradation, the lack of oversight and accountability, the balance between human rights and security interests, overcrowding issues. I ask myself, how can we get people equally concerned about what goes on here," she said.

Most correctional officers are not abusive and just want to get through their shifts safely. But few people involved in corrections would deny that those who do abuse inmates constitute a serious problem.

Two of those allegedly involved in the abuse of Iraqi detainees, Spec. Charles A. Graner Jr. and Staff Sgt. Ivan L. "Chip" Frederick, worked as correctional officers. Graner, whose grinning face appears in some of the most lurid Iraqi photographs, was a guard at Greene County State Correctional Institution in Pennsylvania. Two years after he arrived at Greene, the prison was at the center of an abuse scandal after guards routinely beat and humiliated prisoners. Prison officials, citing privacy concerns, have declined to say whether Graner was implicated in that case.

Frederick was an officer at Buckingham Correctional Center in Dillwyn, Va., west of Richmond. In a handwritten statement published by the Richmond Times-Dispatch on Thursday, Frederick compared his role at Abu Ghraib in Iraq with his job as a guard in Buckingham, where he said he had "very strict policies and procedures as to how to handle any given situation." In Iraq, he said, there were no such policies.

Senior officers in Iraq have said there was a serious breakdown of discipline that allowed abuse to flourish. This sometimes happens at home as well.

In Cook County Jail in Chicago, the elite Special Operations Response Team has been implicated in scores of incidents of violence and brutality in recent years. One of the most dramatic took place on Feb. 24, 1999, when members ordered 400 prisoners out of their cells three days after a stabbing. According to a 50-page report by the Sheriff's Internal Affairs Division, the guards, accompanied by four guard dogs without muzzles, forced the inmates to strip and face the wall. They were forced to keep their hands behind their heads and were struck with a baton if they looked away from the wall. Other prisoners were ordered to lie down and were kicked by guards. One said he was beaten, until he urinated and went into convulsions, because he did not leave a cell fast enough. According to the sheriff's report, at least 49 inmates were beaten. One, Leroy Orange, told the Chicago Tribune, "Everybody who had a tattoo got their ass whipped. It was scary. The dogs were barking and the guards were just beating the [expletive] out of everybody. I've never seen anything like it." 

Around the same time, the sheriff's department in Suffolk County, Mass., which includes Boston, was also in upheaval. A former jail officer, Bruce Baron, said he witnessed more than 20 beatings of inmates during his years as a guard, from 1995 to 1998. 

In one incident at the Suffolk County jail, a pretrial detainee locked in a cell on suicide watch was stripped and left without a blanket. According to a Department of Justice press release, after several hours of the detainee's yelling for a blanket, officers decided to enter the cell and "slap him around" to get him to shut up, administering a vicious beating.

In another, Leonard Gibson, an 18-year-old detainee awaiting trial on car theft charges, was assigned to a cell in the medical unit because he suffered from Tourette's syndrome, a neurological disorder that causes involuntary tics and uncontrollable outbursts. His outbursts annoyed officers so much they decided, in the words of the Justice Department, to "slap the Tourette's out of him." A witness testified: "He was screaming. He was pleading, 'Please don't hit me! Stop! I can't help it!' But all you could hear was the pounding. The pounding. He was really hurt."

How can such things happen? Prison experts say the chances of abuse rise when officers' rules of behavior are not clearly stated, rigorously enforced and backed up by proper training. The danger is greatly increased when captors and captives belong to groups with little in common, as is increasingly the case in our prison system in the United States as well as in Iraq.

In the 1980s and 1990s, a majority of the hundreds of new prisons this country built to accommodate a massive increase in the prison population were put in remote, rural regions. So a situation has developed, in California, Virginia and other states, where a majority of the correctional officers are white and a majority of the inmates are black. Without proper training, it is easy for guards to regard those under their control as alien, threatening and inferior.

In 1999, nearly 500 prisoners from Connecticut, many of them black, were sent to Wallens Ridge State Prison in Big Stone Gap, Va., to ease overcrowding in their home state. According to a report by the Connecticut Commission of Human Rights and Opportunities, they were immediately subjected to racial slurs and harassment. Guards routinely used words like "spic," "nigger," "porch monkey" and "boy" when addressing them. Black and Hispanic prisoners were allegedly subject to more cell searches and pat-downs than whites, and guards fired rubber bullets at them for walking too fast or not walking in a straight line. In one instance, black and Hispanic inmates were ordered to crawl toward a correctional officer in the recreation yard. One officer asked an inmate, "You ever been shot by a white man, you ever been stunned by a white man?" Another said, "Yo, black boy, you in the wrong place. This is white man's country." 

In both this case and Iraq, officers appeared to regard inmates as less than human. 

"Americans are right to be shocked by what happened in Iraq but they need to know that responsibility for abuse, at home as well as abroad, ultimately lies with the public and the leaders they elect," Fellner said.

Alan Elsner is author of the recently published "Gates of Injustice: The Crisis in America's Prisons." 
 
 

© 2004 The Washington Post Company

COMMENTARY

Exporting America's Shame
Allegations in Iraq reflect the violent, abusive prisons that have arisen in the U.S.
By Robert L. Bastian Jr.
Robert L. Bastian Jr. is a Los Angeles lawyer.

May 6, 2004

President Bush has asserted that the abuse of Iraqi prisoners at Abu Ghraib "does not reflect the nature of the American people." 

"That's not the way we do things in America," he added. 

In terms of aspirations, Bush is certainly correct: Americans generally do not regard themselves as arrogant, abusive, violent, mean, petty and ignoble. As a matter of empirical, verifiable fact, however, the best social scientific evidence suggests that the president is simply wrong on both counts. 

In 1971, for example, Stanford psychology professor Philip G. Zimbardo initiated an experiment in which participating Stanford students were designated either as prisoners or guards, with guards told to maintain order. After only a few days, the project had to be terminated prematurely because the guards were, with no apparent motivation other than fulfilling their roles, becoming uncomfortably abusive toward the prisoners. What does that say about our "nature"? 

In another famous experiment, Yale psychology professor Stanley Milgram told subjects to give electric shocks to a victim in a learning experiment. As the victim — an actor in another room who was not actually being shocked — gave incorrect answers, the participants were asked to turn the voltage up, even to where the dial read "danger," a point at which the victim could be heard screaming. Although often reluctant, two-thirds of the subjects continued to follow orders to administer shocks. 

Given that, what's so surprising about the fact that in 2004, reservists controlling the relevant tier in Abu Ghraib prison would — in an effort to follow orders — agree to "soften" the Iraqi detainees for questioning? 

If the president was wrong about the nature of the American people, he was no less wrong about the way things are done by Americans. 

At the outset of the occupation, it was earnestly argued that the Iraqi people would welcome and benefit from imposition of U.S.-style democracy and freedoms. The American public — and, I suspect, most of the world — believed that Americans could do a better job of running a prison such as Abu Ghraib. We're not arbitrary, abusive, unaccountable or unjust, right? Indeed, last June, Brig. Gen. Janis Karpinski told a reporter that Americans were making living conditions so much better at Abu Ghraib that she was concerned prisoners "wouldn't want to leave." 

But again, we are deluding ourselves. The hard fact is that the U.S. did install in Iraq an American-style approach to prison management. Like the U.S. prison system, it is underfunded and inadequately supervised, lacks civilian oversight and accountability and is secretive and tolerant of inmate abuse until evidence of mistreatment is pushed into the public light. That, regrettably, is the American model.

Over the last four decades, political leaders here at home have committed themselves to incarcerating inmates at rates that ultimately rivaled the former Soviet Union and repressive Middle Eastern regimes. Prisons have grown overcrowded and understaffed. 

At the same time, there has been no commensurate commitment to protecting prisoner rights or upholding even minimal standards. Both state and federal legislatures, with the complicity of federal courts, have continually trimmed avenues of legal redress for inmates subject to abuse.

For its part, the public was fed the myth that prisoners were coddled, and accepted on faith that inmates were treated fairly. The public faith was interrupted only when graphic images materialized as evidence or by guards "rolling over." 

Regarding Abu Ghraib, testimonial evidence of abuse was reported by no fewer than half a dozen organizations, including Human Rights Watch and Amnesty International. Until photos were shown on "60 Minutes II," though, they were merely allegations and, therefore, not the subject of public concern and remedial action.

So, what has been shown in Abu Ghraib that has not already been seen in the U.S.? Recently, images of cages in which California Youth Authority wards were locked up for as much as 23 hours a day were broadcast. In 2001, Human Rights Watch reported in detail how extensively rape is tolerated in U.S. prisons. 

The Eddie Dillard case, in which I represented the inmate, revealed a paper trail with respect to one prolific cell rapist responsible for more than 30 reported incidents of attempted or completed sexual assaults at six different California prisons. Still, the predator was assigned more cellmates. 

The accumulated result: A federal district court judge in Northern California has threatened to take over the California Department of Corrections because it can't break the code of silence among its guards and take responsibility for the integrity of its mission. 

In the last decade, the department has restricted visits by family and journalists to the remote locations where prisons have been scattered, on the ground that the press might glamorize prison life. Or has it acted to impede reporting of underfunding and abuse? 

In the shadow of the infamous Abu Ghraib photographs, it's easy to understand why much of the world looks upon Americans as craven and arrogant. In so many ways, the United States' interests and international image have been harmed as we act on our aspirations and self-congratulatory beliefs instead of a cold, hard view of reality, including our own limitations.

No less a figure than Winston Churchill famously said that "treatment of crime and criminals is one of the most unfailing tests of civilization of any country." If Churchill is right, so, at the moment, are America's critics.

from the May 20, 2004 edition -  http://www.csmonitor.com/2004/0520/p02s01-usju.html

In some US prisons, echoes of Abu Ghraib
Complaints of prisoner abuse crop up at home as well as in Iraq - and may now get attention.
By Alexandra Marks and Daniel B. Wood | Staff writers of The Christian Science Monitor 

"Simply stated, the culture of sadistic and malicious violence that continues to pervade the ... prison system violates contemporary standards of decency." 

That conclusion, written by Judge William Wayne Justice, does not describe Abu Ghraib in Iraq last fall, but the Texas prison system in 1999 when George W. Bush was still governor there.

As courts-martial get under way in Baghdad for the prison-abuse scandal, critics are urging Americans to look inside their own criminal justice system for the root of the problems in Iraq.

On the surface, there are appear to be several parallels. One of the Abu Ghraib defendants, Spc. Charles Graner, is a former guard at a maximum-security prison in Pennsylvania that has a history of prisoner abuse. Although accused, he was never found guilty. And Lane McCotter, a senior contractor brought in to reopen Abu Ghraib and train guards, was forced to resign as the head of corrections in Utah: A mentally ill inmate died there after being strapped naked to a restraining chair for more than 16 hours.

Indeed, inmates, human rights activists, and even some corrections officials contend that abuse, humiliation, and gang rape are common in some US prisons.

But after a generation of litigation and concerted efforts to increase the professionalism in the corrections establishment, American prisons have, in general, become far more humane. Few believe that the kind of extreme sexual humiliation that occurred in Abu Ghraib would be tolerated in most US prisons - at least not for long.

"I don't think abuse is common in American prisons, but there are some abuses in all American prisons," says Robert Johnson, a professor at American University in the department of Justice Law and Society. "And in some cases, the abuses can be widespread."

The renegades 
It is in the so-called renegade prisons, and whole renegade jurisdictions, where some abuses may be even worse than those in Iraq. And there, experts say, the same factors will be at play that led to the Abu Ghraib scandal.

"If you find one of those renegade prisons, you'll find there's a problem with leadership, that there are either abused or flawed policies or procedures, little or no training, and poor supervision," says Chase Riveland, a former corrections commissioner in Colorado and Washington State. "And when you combine that with a deviant culture, then you have problems like we saw in Iraq."

Prisons by nature are volatile, difficult places no matter where they are. People are held in cells, essentially cages, against their will by others who are charged with trying to keep them in line.

Overcrowding, a problem that has escalated in American prisons over the past 25 years as the prison population has quadrupled to more than 2.1 million, has intensified that tension between guards and inmates. It's also created fiscal pressures, leaving less experienced guards dealing with larger populations and fewer resources for education, rehabilitation, and recreation. And then there are cultural and racial gaps: Most US inmates are people of color from urban areas, while most prisons are in predominantly white rural areas.

Many of these same dynamics were at work in Abu Ghraib, where inexperienced American reservists were charged with guarding large numbers of Iraqi detainees. "In Iraq, on top of those huge gaps in race and culture increasing tensions, you get language barriers that for the most part are insurmountable," says Marc Mauer, assistant director of the Sentencing Project, a criminal-justice reform think tank in Washington. "In the day-to-day interactions, the prisoners become dehumanized because there's no communication, and much less sympathy or compassion for anyone's plight."

Such dehumanization is usually a key ingredient when abuse occurs, say experts. In California, where allegations of widespread abuse throughout the system have prompted a state Senate investigation, experts blame overcrowding, a gang culture, and a poorly educated workforce for creating a culture of dehumanization. That has been exacerbated by guards protecting one another.

"There is a code of silence in California prisons that turns good officers to bad," says Richard Steffen, staff director for the Senate Government Oversight Committee looking into the abuse. "They are forced not to report wrongdoing because if they do, they could be ostracized."

Prison accreditation 
California is one of a handful of states where no prisons are accredited by the American Correctional Association (ACA), the national organization of professional correctional officials. Out of the nation's almost 1,600 prisons, about half are fully ACA accredited. To win that designation, correctional officers have to be fully trained, and the facilities must be fully transparent - which means community members have access so that if there are abuses, they can be addressed.

"I believe that when abuses are brought to the attention of directors of corrections, wardens, and jail managers, they're fully investigated, and appropriate sanctions are taken, including dismissal from position and prosecution, when appropriate," says James Gondles, executive director of the ACA.

But plenty of inmates in places like Texas, which since the 1999 court ruling has been working to reform its prisons, still find too many correctional officials uninterested in abuse allegations. While Roderick "Keith" Johnson was serving time for passing a bad check in the Allred prison in Wichita Falls, Texas, he claims he was made a sex slave by rival gangs of inmates. He pleaded for help from all levels of the prison system, right up to the commissioner, but claims he was ignored.

He's now suing, and his case will be heard in July. "Seeing those pictures of those people in Iraq and the way they were abused, I saw a lot of similarities with what goes on here," says Mr. Johnson, who's out of prison and helping other ex-offenders reenter local communities. "At least there you've got pictures to show what was happening, but here we don't, so it harder to prove."

Even Mr. Gondles admits that abuses do occur in US prisons. "But I don't believe that it's endemic in American jails and prisons," he says. "And what happened in one institution in Iraq is not representative of what goes on in America."

 http://www.townhall.com/columnists/richlowry/rl20040513.shtml

The other prison scandal
Rich Lowry 
 

May 13, 2004
 

    If we insist on having an orgy of self-flagellation about the prison abuses at Abu Ghraib, we might as well gain something from it. That something shouldn't be a change in our interrogation tactics in the war on terror -- they don't seem at fault for the perverse acts of a few MPs -- but reform of the ongoing scandal that is the U.S. prison system.

   It is telling that two of the guards involved in the Iraq scandal were prison guards in the United States. Our prisons aren't run the way cellblocks 1-A and 1-B in Abu Ghraib were between 2 a.m. and 4 a.m. last fall, thank goodness, but they tend to be pits of sexual violence, madness and drug abuse. They are at once too brutal and too lax. Fixing them is not something we owe the international community or anyone else -- besides ourselves.

    Events at Abu Ghraib have established that we are horrified at the idea of forcible sodomy -- some of which might be featured in the new batch of photos -- in prisons. Good. That sense of outraged disgust should apply here. An estimated 10 percent of prison inmates are victims of rape at least once. Two-thirds of the victims are raped repeatedly, and some male prisoners report 100 or more incidents of sexual assault a year. According to Cindy Struckman-Johnson of the University of South Dakota, a third of the victims have thoughts of committing suicide, and 17 percent attempt it.

    Suicidal despair is a common feature of prisons, since they are used to warehouse the mentally ill. Instead of deinstitutionalizing the mentally ill, we have trans-institutionalized them, effectively transferring them from mental-health hospitals into prisons. There are more mentally ill people in America's jails and prisons -- somewhere between 200,000 and 300,000 -- than in all its psychiatric hospitals. They don't get proper treatment and are often punished for the consequences of their illness by being placed in solitary confinement, thus exacerbating their sickness. 

    On top of these problems, there are gangs, drugs, abusive guards and more. How do we improve our prisons? The most important change has to be in our attitude. Prisons can do great good -- they have been the most important factor in declining crime during the past decade. But the people who go there, despite their weakness or wickedness, are human beings and deserve to be treated as such. Incarceration is itself the punishment and shouldn't be augmented by random brutality or poor treatment.

    A message should be sent from the very top, i.e. governors, that the abuse of prisoners, by fellow inmates or by guards, will not be tolerated. It is especially important that inmate-on-inmate rape and acts of abuse by guards be punished, even if powerful look-the-other-way prison-guard unions don't like it. Overcrowding, which overwhelms guards and helps create the conditions for rape and other violence, should be alleviated. If we are going to jail more people than any other country in the world, let's build more prisons. But since there are limits on resources, the incarceration-intense drug war needs to be re-examined. And the mentally ill should be diverted into mental institutions.

    Meanwhile, as criminal-justice expert Eli Lehrer argues, while prisoners are under our control we might as well try to do some good for them. Work programs in prison can get prisoners in the habit of working and reduce recidivism. More than 10 percent of prisoners test positive for drugs at any given time. Coercive treatment programs should attempt to wean them of addiction. Finally, prisoners tend to be simply dumped on the streets when they are released. More intensive post-prison monitoring can help keep them from going back.

    It is understandable that Abu Ghraib has raised such an outcry. The abuses there will get more American soldiers killed. But there is something odd about a country that gets more exercised about the treatment of foreign prisoners than the treatment of its own. Let's not expend all of our prison outrage on behalf of Iraqis.

Abuse From Sea to Shining Sea

By Van Jones, AlterNet
May 28, 2004

The images we've seen from Iraq's Abu Ghraib prison are truly horrifying. Now reports are surfacing of similar, videotaped abuses by U.S. soldiers at Guantanamo Bay. But as awful as all of this is, these scandals should come as no surprise. Just look at the horrible way we treat prisoners here at home. 

People across the country are rightfully outraged by the abuses in U.S. prisons in Iraq. According to a recent ABC/Washington Post poll, 69 percent of Americans think this kind of abuse is unacceptable in any situation. But where is the outrage for the abuse of prisoners right here at home? 

A recent New York Times article details physical and sexual abuse of prisoners in facilities throughout the U.S. - abuse that continues with little public knowledge or concern. 

Like prisoners of war in Iraq, domestic inmates are routinely humiliated and degraded. In Pennsylvania and other states, staff routinely strip inmates in front of other inmates before their transfer to a different unit or prison. At the Maricopa County jail in Phoenix, Arizona, jailers force male inmates to wear women's pink underwear as a form of humiliation. 

New inmates at Virginia's Wallens Ridge maximum security prison report being forced to wear black hoods, allegedly to keep them from spitting on guards. Former inmates have said that guards often beat and cursed at them and forced them to crawl. 

Texas has been home to some of the worst abuses. For much of George W. Bush's tenure as governor, Texas prisons were under a federal consent decree due to crowding and violence by guards against inmates. What prompted the consent decree? A federal court found that guards were allowing inmate gang leaders to buy and sell other inmates as sex slaves. 

Do you think we are immune from these abuses in "liberal" California? Think again. In fact, the most recent prison scandals here involve our smallest prisoners: children. 

Recent official state government reports, including first-hand accounts, describe the California Youth Authority (CYA) as a violent hotbed of human rights abuses. According to these reports, guards regularly instigate fights among the youth. They also commonly spray wards with chemical weapons and high-pressure hoses. 

The facilities are filthy; some have blood and feces smeared on walls. Wards' emergency medical and mental health needs are neglected. Staff and administrators needlessly lock minors in solitary confinement for 23 hours a day - for months on end. And some youth are placed in tiny, one-person cages or forced to spend hours on their knees with their hands bound behind their backs. 

Recently, state authorities released a security video of prison employees viciously beating two young wards at a CYA facility. In the video, one guard punches a boy in the face 28 separate times as the boy lies helpless on the floor, offering no resistance. Then other guards come and spray the boys with chemical weapons. 

This video shocked Californians of every stripe. But what's more shocking is that Bill Lockyer - a Democrat and the state Attorney General - has decided NOT to prosecute the guards caught savagely beating two helpless wards. 

Even President Bush, who presided over some of the country's most atrocious prisons, is responding to public pressure by promising that the abusers in Iraq be prosecuted. But Lockyer, one of the highest Democratic officials, is turning a blind eye to documented brutality here in California. And Democrats have the nerve to scold Bush? 

With this sorry human rights record at home, it would have been more surprising if human rights abuses hadn't happened in overseas military prisons. Indeed, with the United States' track record on prisons, you could have predicted these abuses before they even happened. 

All of us - especially our elected leaders - need to address this most glaring human rights disgrace at home. At least one of the soldiers charged in Iraq - Corporal Charles Graner, Jr. - was a prison guard in Pennsylvania. The righteous and justified outrage at the images we have seen from Abu Ghraib must be directed not only at that facility, but also at the root of these failures - prisons here at home. 

Attorney Van Jones' organization, Books Not Bars, works to replace the California youth prison system with regional rehabilitation centers. 

Abused Iraqis 'experienced standard fare of US jails' 
By Salamander Davoudi 
Published: May 29 2004 

For weeks, the WhiteHouse has struggled to cope with the unfolding detainee-abuse scandal at Baghdad's Abu Ghraib prison. The scandal has damaged many Americans' confidence in the war in Iraq, provoked demands for investigations and cabinet-level resignations, and weakened President George W. Bush's approval rating.

The controversy has obscured questions about where and how such tactics ever developed. US corrections experts and former inmates agree that the Iraqi detainees experienced the standard fare of US prisons, where authorities largely ignore abuse by guards, squalid conditions and danger from other inmates.

"In the United States there is an implicit mandate that our prisons really need to punish," said James Alan Fox, a professor of criminal justice at Northeastern University in Boston. "As far as many politicians are concerned rehabilitation and treatment are no longer a great concern."

"Just like in Iraq's Abu Ghraib prison, nakedness is often used in American prisons to humiliate and to punish," agrees Alan Elsner, author of Gates of Injustice,a study of corruption and brutality in US prisons.

"Dogs are often used to intimidate and bite. Sexual intimidation and abuse occurs not only between inmates but also between staff and inmates - it happens frequently," says Mr Elsner, a Reuters journalist. The "brutality of prison life" and widespread human rights violations pervade the US prison system, he says.

Specialist Charles Graner and Staff Sergeant Ivan Frederick, two Abu Ghraib guards now facing courts martial for alleged involvement in prisoner abuse, worked as former correctional officers in US prisons. The New York Times reported this month that Spc Graner once worked in a Pennsylvania prison where guards routinely beat and humiliated prisoners.

The Times also reported that Lane McCotter, who reopened Abu Ghraib last year, formerly ran the Utah department of corrections but was forced to resign in 1997 when a prisoner died while shackled naked to a chair for 16 hours.

Mr McCotter then joined a private prison security company before John Ashcroft, US attorney-general, sent a team of prison officials to rebuild Iraq's criminal justice system. Mr McCotter left Iraq when Abu Ghraib, a notorious torture centre under Saddam Hussein, reopened for US-held captives in September.

"There is no question that abuses take place in US prisons. It's the best-kept secret in the system," says Herbert Hoelter, director of the National Center on Institutions and Alternatives, a prison-reform organisation.

"The buzzword for the prison warden is population management," he says. "When you go to American correctional association conventions, it's all about technology and stun-guns and barbed wire, not care."

Nearly 2.1m people are held in US prisons today - an incarceration rate five to 10 times greater than that of any other democracy.

"Some people say there is the same level and type of abuse in US prisons [as in Iraq]. There is not," says Jamie Fellner of Human Rights Watch. "There is certainly abuse in US prisons, but the similarities with Abu Ghraib deal with the failure of leadership command or incidents where senior staff look the other way, which is taken as tacit approval."

The "lack of scrutiny and extreme secrecy that surrounds what goes on inside of prisons" tends to obscure the picture, Ms Fellner says.

Roderick Johnson, who served a three-year prison sentence in Texas' Allred Prison, said guards laughed at his complaints of repeated rape by other inmates.

"I was approached by gangs in prison and raped hundreds of times. I reported it nine times and each time the administration ignored me," Mr Johnson says. "They humiliated prisoners by stripping us down and making us stand around naked. There is a lot of abuse but there are no pictures to show like in Iraq."

Mike Viesca, spokesman for the Texas Department of Criminal Justice, said: "We pursue our mission without the use of intimidation or inhumane treatment."

COURTS SHOW DELIBERATE INDIFFERENCE TO JAILHOUSE VIOLENCE

By Robert L. Bastian, Jr.

On Dec. 20, 1997, Daniel Segovia, whom our office represented, was dragged – after all the cell doors on his row in a Men's Central Jail gang module inexplicably opened simultaneously – into a cell with six other inmates, mauled and stabbed 52 times.

The jail's policy was to leave all the gang module doors locked and closed.  No one can (or will) say why Segovia was called out of his cell for a visitor who never existed or why, after he was on the row, all cell doors suddenly opened in violation of this policy.  This is because the jail could not establish who was on duty at the time.  Of the entire pool of deputies who might have been at the door-switch post, none recalled an inmate being stabbed 52 times after someone threw that switch.

Neither the sheriff's investigation of the incident nor the supervisor signing off on the report ever asked, "Who was on duty? Who opened the doors? Why? And why wasn't the policy breach reported?"  The sheriff's investigator interviewed each of the six inmates in close proximity to one another where they were able to monitor each other's cooperation.  No one was prosecuted.  Each of the six got off with 10 days' loss of privileges.

That was in 1997.  In recent days, the Los Angeles County Sheriff's Department has conceded that no less than five jail inmates have been killed or beaten during the past 18 months in retaliation of testifying against other inmates.

That the Sheriff's Department cannot even protect such witnesses should be a strong hint of just how entirely out of control inmate-on-inmate violence within the jail has spun.

This obviously is a failure by the sheriff, who is charged with managing the jail and supervising its staff.  Also sharing responsibility are the Board of Supervisors, which oversees the jail budget; the courts, particularly the federal courts, who typically hear prisoner complaints; and to a lesser extent, the special counsel designated to monitor the Sheriff's Department.

When conditions become so bad in jail that someone is murdered, then the media might report it.  Finally, the public, which elects the sheriff, might take brief note.

But the public and its representatives generally don't care.  Over the past four decades, the public has accepted the myth that undeserving prisoners are coddled.  Thus, no sheriff gets elected on a platform of improving conditions of confinement.  The "silent majority" still feels victimized by crime and viscerally reacts against any suggestion that there is a public duty to maintain minimum standards with respect to inmates.  This is particularly true in times of fiscal trouble that, with respect to jail funding, is 100 percent of the time.

The one institution structured to protect the baseline constitutional rights of a minority such as inmates is the federal court.  Generally, though, federal judges don't care either.

At a minimum, the Eighth Amendment to the U.S. Constitution, which generally prohibits cruel and inhuman punishment, imposes a duty on jail officials to take reasonable measures to guarantee the safety of inmates from violence by other inmates.  Over the last four decades, however, federal courts have shirked their responsibility to ensure minimum standards.  Instead they have created and enforced improbable if not impossible legal standards as preconditions to granting inmates any meaningful relief from the intolerable conditions they face.

A victim of assault by another inmate must prove, no matter how preventable the assault was, that a government official was "deliberately indifferent" – a standard somewhere between negligence and an outright intent to cause harm.

"Deliberate indifference" is also a "judicial gloss."  More specifically, it is a creation of a Supreme Court generally hostile to individual civil rights, and which selected this standard over negligence in its selective interpretations of the Constitution and 19th century civil rights statutes.

Additionally, "deliberate indifference" is a blatant oxymoron.  Justices, who otherwise favor "bright-line" rules when they inure to the advantage of law-enforcement defendants, were attracted to the obtuse and intellectually indefensible "deliberate indifference" standard for two reasons.

First, the court's more conservative justices apparently do not believe in aggressive enforcement of the constitutional rights of individuals against majority interest.  Instead, they believe individual rights should be enforced only if they arise from the states and have strong majoritarian supports.

And there is latent animosity against prisoners who assert their rights.  Although a principled analytic approach would sharply distinguish between the formal punishment inmates receive after due process, in contrast to the treatment they receive while in prison, the distinction breaks down in practice.

Courts, reflecting public attitudes, resent arrestees and inmates, holding them morally responsible for the conditions of their confinement on the grounds that it was their fault they were arrested and incarcerated in the first place.

When a judge or a juror expresses the sentiment that "the problem today is there is too little acceptance of personal responsibility," you can throw away both the jury instructions and the evidence because the plaintiff prisoner is going to lose.

Thus, little support exists for "rewarding" such plaintiffs with effective relief.  The flip side of public scorn for what once was perceived as a permissible attitude toward criminals is a permissive attitude toward official misconduct.

These underlying attitudes are reflected in a palpable divide regarding how the "deliberate indifference" standard is interpreted.  Conservative judges with a bias against inmates are more apt to interpret this as requiring "deliberate" official misconduct, while the less numerous civil libertarians are more likely to emphasize an official's indifference.

The result is that "deliberate indifference" better describes the federal courts' overall attitude toward problems in American prisons and jails.  A pertinent example of an inmate not being able to meet the standard of "deliberate indifference" – and the resulting deliberate indifference – is our client Daniel Segovia.

During litigation, Segovia asked for jail statistics on inmate-on-inmate violence.  He twice was told none existed, but after a persistent effort, he finally was given statistics for 1995 (761 incidents), 1996 (766) and 1997 (896).  These numbers, probably understated, demonstrated not only a high level of violence but a rising trend.  In the month Segovia was stabbed, there were, on average two incidents of inmate-on-inmate violence reported per day.

In his lawsuit, Segovia asked the federal court how the county could possibly have been more indifferent without being deliberate.

But the District Court summarily dismissed his lawsuit on grounds the deliberate indifference standard had not been met.  A 9th U.S. Circuit Court of Appeals panel, foregoing oral argument, upheld the dismissal in an unpublished opinion.  The 9th Circuit declined the plaintiff's request to review the matter en banc.  No changes in policy, training, reporting, supervision or discipline where ever instituted as a result of his stabbing.

It should come as no surprise that where jails and prisons are continually underbudgeted, federal standards of liability set the base level of jail conditions.  If the federal courts had set the standard at reasonableness – the standard by which private individuals and corporations typically must regulate their behavior -- then jails and prisons would no doubt be funded to the point where they provide reasonable conditions of confinement.

But deliberate indifference is the standard the court sowed.  In return, deliberate indifference is what the criminal justice system reaped.  What the Board of Supervisors saw when they recently toured Los Angeles county jails is what my law partner Marina R. Dini and I saw when we visited the jail five years ago during the Segovia case: The jail is so thoroughly overcrowded, unsanitary and violent that the county could not possibly be more indifferent to the rights of inmates without deliberately willing their violation.

In November 1999, I wrote to the Sheriff's Department's special monitor about the Segovia case, complaining that inmate-on-inmate violence was so poorly investigated and reported no one had any way of knowing how many preventable assaults were occurring within the jail.  But the special monitor never responded.

Had someone in a position of responsibility paid close attention to Segovia's case, they might have insisted that, when instances of inmate-on-inmate violence occurred, at a minimum jail staff should report whether the jail's door polices were followed, and, if not, whether appropriate remedial discipline, retraining or rule revision were implemented.

In these days of "compassionate conservatism," one might ask the philosophical riddle: If an inmate in county jail screams, does he make a sound?

Sadly, the answer is no.

Otherwise, the effort to sort out jail violence would have begun in earnest thousands of inmate-on-inmate assaults ago.

Robert L. Bastian Jr. is a partner in the Law Offices of Bastian & Dini in Los Angeles