Voices from Solitary: “Extradition”

May 13, 2013 By Leave a Comment
talha family

Talha Ahsan’s brother, mother, and father in their London home.

Today we arrive in London, where on Thursday we will speak at a forum entitled “Extradited to a Future of Torture: The Reality of Solitary Confinement in America.” Hosted by the International State Crimes Initiative (ISCI) at Kings College London, the event features the premiere of a film made by the Yale Visual Law Project, The Worst of the Worst, about Northern Correctional Institution, Connecticut’s supermax prison. It will also include talks by Tessa Murphy of Amnesty International and Hamja Ahsan, the brother of Talha Ahsan, a young British national who is currently being held in pre-trial solitary confinement at Northern.

Talha Ahsan is one of five UK residents extradited last year to the United States to face terrorism-related charges. The story of their extraditions was not big news in the United States (though we covered it on Solitary Watch, here, here, and here). In the UK, however, it was a huge and controversial story involving inside British politics and the European Court of Human Rights. The story of the extraditions–and particularly, of Talha Ahsan, who suffers from Asberger’s Syndrome and is accused under vague “material support” charges of participating in a jihadist website–is told in dramatic detail by the ISCI’s Ian Patel in a recent New Statesman article, “The Impossible Injustice of Talha Ahsan’s Extradition and Detention,” which deserves to be read in full.

Talha Ahsan is a poet who has continued to write throughout his imprisonment. The following poem was composed while he was being held in (comparatively unrestrictive) detention in Her Majesty’s Prison Long Lartin. It refers to ADX Florence federal supermax prison in Colorado, which is where Ahsan, with good reason, fears he will end up.

. . . . . . . . . .

Five years ago they brought me to a cell

and ever since a waiting game plays here.

As they decide on sending me away,

my parents grow so grey and sad at home.

How will they manage visiting me there

or must they wait until the end of time?

 

Ma, hear my oath, by him whose hand is time,

bars stand in worship with me in this cell.

So even if I’m extradited there

and taken from my humble parents here,

then tell them paradise is our true home

whose gardens years will never fade away.

 

To Florence prison I’ll be sent away

It doesn’t matter what will be my time.

No prison ever can be called my home,

how ever long they put me in a cell.

A higher power occupies me here

who’s closer to me even over there.

 

Perhaps they’ll clean their hands of me once there.

And then my country feels I’m wiped away.

Though germs stay always floating from me here:

these particles will gather born in time,

a culture breeding from a tiny cell,

to carry on infecting every home.

 

Theresa May, a minister at home

though feeble servant to her masters there;

a solitary torture chamber cell,

To put me in, she’ll simply say, ‘Away!’

So let me while I can devote my time

to work for my own justice over here.

 

I pitch a tent for battle waiting here.

And in this heart of mine you’ll find a home,

free from the crumbling effects of time

or any rotting thoughts of being there.

It is a sin for me to run away

As patience brings my glory to this cell.

 

For time will be a brief sojourning here,

and there, or anywhere I make a home -

Away! A caravan escapes my cell.

 

–HMP Long Lartin, 19 July 2011

 

Filed Under: civil liberties/civil rights, Connecticut, federal prisons, human rights, international, international agreements, media, psychological effects, solitary confinement, supermax prisons, terrorism cases, Voices from Solitary Tagged With: , , , , ,

Seven Days in Solitary [4.20.13]

April 20, 2013 By Leave a Comment

solitaryThe following roundup features noteworthy news, reports, and opinions on solitary confinement from the past week that have not been covered in other Solitary Watch posts.

•  According to a piece by Susan Greene in the Colorado Independent, the “Colorado ACLU reports young people are being forced to spend lengthy stints in cement isolation rooms referred to as ‘reflection cottages’” at the El Pueblo treatment facility. “People need to know what’s going on in there. They need to know that they’re torturing kids,” said the father of a 14-year-old who spent a month in solitary at one of the cottages.

•  The Associated Press reports that a man serving a 10-year sentence in a North Carolina prison died after swallowing multiple objects. The prisoner “had been cited by prison staff at least 25 times for infractions related to attempts to harm himself.  He was in solitary confinement when he died.”

•  According to a radio piece by WKUT in Austin, “An estimated 25 percent of Texas inmates in solitary confinement suffer from mental health issues. A bill in the Legislature would create a task force to find out more about these prisoners and provide them with safer alternatives.”

•  In a powerful commentary, CNN’s John Sutter argues that “No kid should be in solitary confinement.” The piece links to an online petition drive launched by the ACLU, urging U.S. Attorney General Eric Holder to “ban the solitary confinement of youth held in federal custody.”

•  The Guardian reports on the European Court of Human Rights’ decision to block the extradition of a UK-based terrorism suspect who suffers from paranoid schizophrenia. It did so on the grounds that removing him to an American supermax prison would constitute “inhuman or degrading treatment” under international law. (Other British suspects, including Asberger’s sufferer Talha Ahsan, were extradited and are now in extended pre-trial solitary confinement.)

•  The Pennsylvania-based Human Rights Coalition launched a month-long campaign to have Russell Maroon Shoats released from isolation. Shoats has spent a total of 30 years in solitary, including the last 22 consecutive years.

•  The Other Death Penalty Project, an organization led by life-sentenced prisoners, launched a campaign to print and distribute a collection of writing by lifers, aimed at “raising awareness nationwide that life without parole sentences are the death penalty and must be abolished.”

•  California’s Stop the Torture Campaign, described as “in support of the prisoner-initiated human rights movement to end long term solitary confinement in California,” ramped up its activism with a series of events in the Los Angeles area featuring a model of a cell from the Pelican Bay SHU.

•  As the week began, hunger-striking detainees at Guantanamo Bay were violently forced from their communal cellblocks into solitary confinement cells. According to Carol Rosenberg in the Miami Herald, “The pre-dawn operation took place hours after delegates of the International Committee of the Red Cross left the remote island prison and during a blackout of news media access to the crisis in the prison camps.” And the resultant “scenario described by the military—individual men locked one to a cell, maximum-security style, in a facility designed for communal medium-security confinement—returned the prison camps to an austere detention approach dating back to the Bush administration.”

Filed Under: civil liberties/civil rights, federal prisons, human rights, international, juveniles, legislation, life without parole, mental illness, psychological effects, solitary confinement, suicide, supermax prisons, torture Tagged With: , , ,

Extradited to a Future of Torture in a U.S. Supermax Prison

October 6, 2012 By 5 Comments
Guest Post by Laura Rovner

ADX Florence: “This is what torture looks like.”

Last week, the Grand Chamber of the European Court of Human Rights rejected appeals from five terror suspects challenging their extraditions from Britain to the United States. The unanimous decision from the judges affirmed the Court’s earlier ruling that “detention conditions and length of sentences of five alleged terrorists would not amount to ill-treatment” if they were extradited to the U.S. and held in solitary confinement in ADX, the U.S.’s only federal supermax prison. The decision is profoundly troubling, not only its outcome, but also the process by which the Court rendered its decision and in the public silences surrounding it.

The decision stands in stark contrast to international opinion that has grown increasingly critical of the use of prolonged isolation, viewing it in some instances as a form of torture. Indeed, the week after the Court released the decision, the UN Special Rapporteur on Torture resoundingly condemned it: “As we speak my office is sending a communication, dealing with the possible extradition to the US of five people who will be subjected to solitary confinement…The UN Convention Against Torture states you cannot extradite or deport someone to any place if he or she could be tortured.” He concluded, “I think there [are] very good arguments that solitary confinement and SAMs ["special administrative measures," which impose severe restrictions on communication with other inmates or the outside world) would constitute torture and prevent the UK from extraditing these men."

Yet in the days since the European Court issued its decision, the silence from human rights organizations and the American media has been deafening. The silence is especially striking in light of the considerable—and warranted—criticism of the use of prolonged solitary confinement in correctional facilities other than our federal prisons. This past week alone saw condemnation of California’s supermax prisons in a report by Amnesty International that criticized conditions in the strongest terms—conditions that are, in the main, nearly the same as those at ADX. Other reports have highlighted the detrimental mental health effects of prolonged solitary confinement. And at a time when the conditions of the men detained in Guantanamo still appropriately command significant attention from human rights advocates who have repeatedly decried the lack of accountability for Bush-era torture, the discussion of ongoing torture in our domestic federal prisons has received significantly less coverage.

It’s hard not to wonder whether the silence from human rights groups about the European Court’s decision is born of the same mindset underlying the decision itself, namely, the resistance to believing that the U.S. could be engaging in torture in its federal prisons. Or perhaps this abuse is harder to see because it runs counter to current campaigns focused on the states, on massively overcrowded California prisons or deep South prisons that seem like holdovers from Jim Crow days—with the implicit corollary that federal penitentiaries are well run and well regulated. Maybe the reluctance to speak stems from the still-pervasive Islamophobia that makes us blind to the treatment of Muslims, especially those who are being prosecuted for terrorist crimes. Given the prioritization of advocacy urging the closure of Guantanamo and the prosecution of terror suspects in the federal courts, many human rights groups and advocates have been reluctant to scrutinize and speak out against the practices in our federal prisons for fear of complicating their message. If torture is happening at ADX, what does it mean for these groups to be calling for men to be tried in the federal system?

[Read more...]

Filed Under: civil liberties/civil rights, featured posts, federal prisons, guest posts, human rights, international, psychological effects, race, solitary confinement, supermax prisons, terrorism cases, torture Tagged With: , , , , , , , , ,

U.S. Supermax Prisons Are Challenged in the European Court of Human Rights–and Lose the First Round

July 8, 2010 By 6 Comments

The Federal Penitentiary Administrative Maximum ("ADX") in Florence, Colorado, where conditions may violate the European Convention on Human Rights' prohibition against "torture or inhuman and degrading treatment"

For years, four British nationals have been fighting against their extradition to the United States to face various terrorism charges, arguing that such a move would place them at risk of human right violations, as defined by the 1950 European Convention on Human Rights. When courts in the UK ruled against the four men, they took their cause to the European Court of Human Rights in Strasbourg.

Among other things, the British suspects have argued that if extradited, they could face a lifetime of solitary confinement under “special administrative measures” (SAMs), most likely at ADX Florence, the notorious federal supermax prison in Colorado. Such confinement, they contend, would violate Article 3 of the European Convention on Human Rights, which states: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The UK sought to have the suspects’ complaint dismissed. But today, the European Court of Human Rights “declared admissible” the portions of the complaint dealing with supermax conditions, as well as with life sentences without the possibility of parole.

A press release issued earlier today by the Registrar of the European Court summarized the case (Babar Ahmad and Others v. the United Kingdom) this way:

The applicants alleged in particular that, despite the diplomatic assurances provided by the United States, they were at risk, if extradited, of being subjected to an unfair trial–due to the use of evidence obtained through torture and/or of coercive plea bargaining–at the conclusion of which they could be designated as enemy combatants. They also alleged that, once extradited, they were at risk of extraordinary rendition and life imprisonment without parole and/or extremely long sentences in a “supermax” prison such as ADX Florence where special administrative measures would be applied to them. They relied on Articles 2 (right to life), 3 (prohibition of inhuman or degrading treatment), 5 (right to liberty and security), 6 (right to a fair trial), 8 (right to respect for private and family life) and 14 (prohibition of discrimination).

Based on promises made by the United States, the Court ruled that if extradited, the British suspects would not be at risk of extraordinary rendition, of being tried as enemy combatants, or of unfair trials or discrimination. It had also received assurances that the suspects would not face the death penalty. When it came to confinement for life in Florence ADX, however, the Court found a credible case could might be made that such punishment would violate the European Convention. The Court requested further briefing on a number of questions, including the following, before it issues its final ruling:

  • Given the length of the sentences faced by [three of the four suspects] if convicted, would the time spent at a “supermax” prison, the US Penitentiary, Administrative Maximum, Florence, Colorado (“ADX Florence”), amount to a violation of Article 3?
  • Does the Eighth Amendment to the United States Constitution (prohibition on “cruel and unusual punishment”), as interpreted by the federal courts, provide protection equivalent to Article 3 of the Convention?

The four British terrorism suspects are represented by the firm of renowned British human rights lawyer Gareth Peirce (who wrote about the case here). The information presented to the European Court on Human Rights on their behalf reads like a rundown of evidence for the torturous nature of solitary confinement in general, and lockdown at ADX Florence in particular. Following are the relevant paragraphs from the Court’s decision.

90. The applicants relied on a series of newspaper articles on ADX Florence, including a Time magazine article of 5 November 2006 described spartan cells and almost no contact between prisoners and other people, since food, mail and laundry were passed through a slot in the cell door. Prisoners were strip-searched before they were allowed to exercise. There were also staff shortages which caused irregular meal times, reduced telephone calls and exercise time. A television interview with a former warden also described frequent force-feeding as a result of hunger strikes by prisoners in protest at their conditions.

91. The applicants also provided a report by a psychiatrist, Dr Terry Kupers, which had been prepared specifically for the present proceedings. He considered that a supermax prison regime did not amount to sensory deprivation but there was an almost total lack of meaningful human communication. This tended to induce a range of psychological symptoms ranging from panic to psychosis and emotional breakdown. All studies into the effects of supermax detention had found such symptoms after sixty days’ detention. Once such symptoms presented, it was not sufficient to return someone to normal prison conditions in order to remedy them. If supermax detention were imposed for an indeterminate period it also led to chronic despair. Approximately half of suicides in prison involved the 6-8% of prisoners held in such conditions. The effects of supermax conditions were worse for someone with pre-existing mental health problems. Dr Kuper’s conclusions were supported by a number of journal articles by psychologists and criminologists, which the applicants provided.

92. The applicants also provided a copy of the Istanbul statement on the use and effects of solitary confinement, which was adopted at the International Psychological Trauma Symposium in December 2007. Its participants included the United Nations Special Rapporteur on Torture. The statement included the following on the effects of solitary confinement:

“it has been convincingly documented on numerous occasions that solitary confinement may cause serious psychological and sometimes physiological ill effects. Research suggests that between one-third and as many as 90 per cent of prisoners experience adverse symptoms in solitary confinement. A long list of symptoms ranging from insomnia and confusion to hallucinations and psychosis has been documented. Negative health effects can occur after only a few days in solitary confinement, and the health risks rise with each additional day spent in such conditions.

Individuals may react to solitary confinement differently. Still. a significant number of individuals will experience serious health problems regardless of the specific conditions, regardless of lime and place, and regardless of pre-existing personal factors. The central harmful feature of solitary confinement is that it reduces meaningful social contact to a level of social and psychological stimulus that many will experience as insufficient to sustain health and well-being.

The use of solitary confinement in remand prisons carries with it another harmful dimension since the detrimental effects will often create a de facto situation of psychological pressure which can influence the pretrial detainees lo plead guilty. When the element of psychological pressure is used on purpose as part of isolation regimes such practices become coercive and can amount to torture.”

93. The applicants also submitted a report from the Civil Rights Clinic at the University of Denver, which had acted for a number of prisoners at ADX Florence. The report noted that conditions were even more severe for those prisoners who were subjected to special administrative measures. For example, such prisoners could only communicate with his “attorney of record”. This made it impossible to contact an attorney to request representation to challenge special administrative measures. Requests made directly to the court to have an attorney appointed were denied. There had been no successful challenges to designation to ADX Florence and challenges could only succeed where confinement in supermax affected the prisoner’s date of release or where he was severely mentally ill. The report accepted that the step-down programme could take a minimum of three years but prisoners could be removed from it and returned to “general population” if they were found guilty of misconduct or for “administrative reasons”. The report highlighted the cases of several Muslim prisoners who had fulfilled all of the criteria for admission to the step-down programme except for the requirement that the original reasons for placement at ADX Florence be “sufficiently mitigated”. However, several prisoners had only been transferred from lower security prisons to ADX Florence after 11 September 2001 (despite no evidence of their involvement in the attacks) and thus it was difficult for them to demonstrate that the reason for their placement had been mitigated. Two Muslim clients of the Civil Rights Center had spent respectively five and ten years in general population units but had not been admitted to the step-down programme. Another had spent five years in a general population unit and had only been admitted after retaining the Center in a lawsuit.

94. Both the applicants and Government made reference to a letter dated 2 May 2007 from Human Rights Watch to the Director of the Federal Bureau of Prisons which followed a tour the organisation had been given of ADX Florence. The letter expressed concerns that a number of prisoners convicted of terrorism offences had been sent to the prison based on the nature of their crimes and, despite good conduct since their arrival, had remained in general population units and thus outside the step-down programme for up to nine years. The letter made suggestions for improvement in respect of recreation, mail, telephone use, the library. It also noted that progress was to be made on better meeting prisoners’ religious needs, such as the provision of a full-time imam and commended the educational programmes available through the prison’s television system. The letter urged the prison authorities to investigate reports of retaliation against prisoners who were on hunger strike in the form of transfer to harsher cells. The letter also said that Human Rights Watch was extremely concerned about the effects of long-term isolation and highly limited exercise on the mental health of prisoners and criticised reports of rushed consultations between prisoners and psychologists, as well as the fact that evaluations were carried out via closed circuit television.

95. The applicants obtained a second letter from Human Rights Watch, dated 21 August 2008, which stated that Human Rights Watch considered conditions at ADX violated the United States’ treaty obligations under the International Covenant on Civil and Political Rights and the United Nations Convention Against Torture. It was unremarkable that “minor adjustments” had been made to the regime but it remained in essence one of “long-term and indefinite incarceration in conditions of extreme social isolation and sensory deprivation”.

96. Human Rights Watch’s second letter also provided extracts from two United Nations reports from 2006 on supermax detention. In the first, the United Nations Human Rights Committee stated:

“The Committee reiterates its concern that conditions in some maximum security prisons are incompatible with the obligation contained in article 10 (1) of the Covenant to treat detainees with humanity and respect for the inherent dignity of the human person. It is particularly concerned by the practice in some such institutions to hold detainees in prolonged cellular confinement, and to allow them out-of-cell recreation for only five hours per week, in general conditions of strict regimentation in a depersonalized environment. It is also concerned that such treatment cannot be reconciled with the requirement in article 10 (3) that the penitentiary system shall comprise treatment the essential aim of which shall be the reformation and social rehabilitation of prisoners. It also expresses concern about the reported high numbers of severely mentally ill persons in these prisons, as well as in regular in [sic] U.S. jails.

The State party should scrutinize conditions of detention in prisons, in particular in maximum security prisons, with a view to guaranteeing that persons deprived of their liberty be treated in accordance with the requirements of article ID of the Covenant and the United Nations Standard Minimum Rules for the Treatment of Prisoners.”

97. The second report was from the United Nations Committee Against Torture, which stated:

“The Committee remains concerned about the extremely harsh regime imposed on detainees in ‘supermaximum prisons’. The Committee is concerned about the prolonged isolation periods detainees are subjected to, the effect such treatment has on their mental health, and that its purpose may be retribution, in which case it would constitute cruel, inhuman or degrading treatment or punishment (art. 16). The State party should review the regime imposed on detainees in ‘supermaximum prisons’, in particular the practice of prolonged isolation.”

For more on ADX Florence, see 60 Minutes, “Supermax: A Clean Version of Hell” and the ADX page at Supermaxed.com.

Filed Under: civil liberties/civil rights, Colorado, Constitution, Eighth Amendment, federal prisons, human rights, international, international agreements, lawsuits/litigation, physical effects, psychological effects, sentencing, solitary confinement, supermax prisons, terrorism cases, torture Tagged With: , , , , , , , , ,

“Extradition to a Future of Total Isolation” Opposed by British Human Rights Lawyer

June 14, 2010 By 6 Comments

A reader recently called our attention to an long piece in the London Review of Books by Gareth Peirce, a British solicitor known for taking on high-profile–and often controversial–human rights cases. In the 1993 film In the Name of the Father, Peirce, played by Emma Thompson, is shown defending a group of Irish men wrongly convicted for bombings carried out by the IRA; more recently, she has represented Guantanamo detainees and other prisoners of the so-called war on terror.

In her May 13 article, Peirce argues against extraditing terrorism suspects from Europe to the United States. The extradition of several such suspects has been frozen for years while courts in the UK–and now the European Court of Human Rights in Strasbourg–determine “whether there is a serious risk that sending them to the US would be to deliver them up to flagrantly unfair trials, severe and prohibited ill-treatment, or the death penalty.” These determinations turn largely on the question of whether the suspects would be held indefinitely without trial or put before military tribunals, rather than tried in civilian courts. 

But Peirce argues that in today’s America, even the civilian criminal justice system is so compromised that ”almost every basic safeguard necessary to achieve a conventional fair trial for the accused has, in practice, long since been destroyed.” It is true that “no European state has been permitted to extradite in the absence of an assurance that conviction would not bring the death penalty.” But there is nothing to protect extraditees from “the grim reality of solitary confinement in a small sealed prison cell before and after trial, or sentences that could amount to a hundred years.” 

In a powerful condemnation of solitary confinement as it is currently practiced in the United States, Peirce asks:

But what of extradition to a future of total isolation? Can we comfortably, and within the law, contemplate sending men to that fate? Some of the men who currently await extradition are imprisoned in a small unit, where they are at least in the company of other human beings, and within the unit’s limits can talk, argue, study, cook, write, paint or exercise outdoors in whatever sunlight imprisonment in Worcestershire may afford them. This is not luxury. It is deprivation, of family life, of freedom and of hope. But once on American soil these men have been told by US prosecutors to expect total isolation. Each extraditee will be held under Special Administrative Measures until trial and then, on his anticipated conviction, in solitary confinement in a Supermax prison, ADX Florence in Colorado, potentially for life and without any prospect of parole. He will be confined in a cell 7 feet by 12 feet, with a moulded concrete bunk; his food will be delivered through a slot in the door; external communication, even with a doctor, will come via a closed-circuit television in his cell. For one hour in each day, he will be able to visit a small dark pit where he can exercise alone. His fellow prisoners (although he will not see them) will be ‘the most severely psychotic people’ the most experienced analyst of the effects of Supermax confinement, Terry Kupers, has seen in 25 years of psychiatric practice, and he will be likely, since the primary cause is isolation, to become one such himself. His solitary confinement can and perhaps will continue for life.

After his tour of America in 1842 Dickens wrote of the use of isolation in the American prisons he had seen: ‘I hold this slow and daily tampering with the mysteries of the brain to be immeasurably worse than any torture of the body.’ By the late 19th century, evidence of the devastating effects of solitary confinement on prisoners’ health had surfaced, and in 1890, the Supreme Court, considering the case of a death-row prisoner, echoed the language of today’s doctors: ‘A considerable number of the prisoners fell, even after a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them and others became violently insane; others, still, committed suicide.’ In the 19th century, isolation was intended to provide an opportunity for the redemption of the prisoner’s Christian soul, but Supermax prisons emerged, penologists argue, from a powerful ‘rage to punish’ felt by many politicians and members of the public in the late 20th century. Craig Haney, one of those penologists, believes that the US now celebrates and often demands, rather than lamenting or merely tolerating, official cruelty and the infliction of pain in its criminal justice system. What once passed for ‘penal philosophy’ now amounts to little more than devising ‘creative strategies’ to make prisoners suffer.

Supermax confinement, built on the twin pillars of prolonged solitary confinement and extreme severity of conditions, is one of those strategies. The cells are carefully designed by architects to limit access to natural light, to eliminate stimulation or distraction, and reflect a total disregard for the principle that all prisoners are members of the human community. Although one US district court judge, in the case of Madrid v. Gomez in 1995, described conditions in a Supermax unit as pushing at ‘the outer bounds of what most humans can psychologically tolerate’ and in the case of mentally-ill prisoners has ‘the equivalent of placing an asthmatic in a place with little air to breathe’, no constitutional bar to their continuing use has been imposed by any court.

Even Denmark, a country considered by the UN special rapporteur on torture to be entirely compliant with every other human rights obligation, was warned following an inspection that to detain a suspect in solitary confinement, if it were done in the expectation that it might induce an admission of guilt, could constitute torture contrary to Article 3 of the [European] Convention [on Human Rights].* The same special rapporteurs have expressed particular concern about conditions in maximum security prisons in the US which violate internationally protected rights, but they can do no more than register concern since they have no right to conduct internal inspections. Despite continual recommendations by the UN Human Rights Committee that the US government should scrutinise conditions in Supermax prisons and implement minimum UN standards, there have been no changes in practice, and the federal government is building more such facilities. Human Rights Watch found in 2000 that there were nearly 20,000 prisoners held in complete isolation in the US, nearly 2 per cent of the prison population (by now unofficial figures range between 25,000 and 70,000).

Peirce goes on to consider how courts in London and Strasbourg have responded to brutal conditions in U.S, prisons, including the  prospect of permanent solitary confinement.

Such few judicial honours as can so far be awarded go to the extradition judge in [London] who so straightforwardly rejected the idea that a military commission conformed with the fair trial guarantees of the European Convention. On the isolation imposed by pre-trial SAMs he expressed extreme anxiety – ‘It is in relation to these that I find the greatest grounds for concern’ – and in the case of Abu Hamza, so disabled that he was likely if convicted to be imprisoned in ADX Florence only briefly before transfer to a prison hospital, he found that ‘but for that fact’ the brutal isolation would violate Article 3.*

When the same issue has been considered in the high courts, the judges have sidestepped the facts: ‘For a mature and sophisticated democracy that respects the rule of law, it would be unusual, to say the least, if one of its lawful and carefully prescribed methods of incarceration were to be condemned for giving rise to an automatic violation of Article 3.’ The inclusion of the word ‘automatic’ is intended to describe the protection that litigation provides for a prisoner once in solitary confinement, but the prospects for an effective challenge are non-existent; there is no funding for prisoner litigation in the US and administrative obstacles prevent even the most determined litigant having his case heard within ten years. In any event, even prisoners who have gone for years without speaking to anyone other than Federal Bureau of Prisons officials have not been able to establish a claim under the 8th Amendment to the constitution, which prohibits cruel and unusual punishment, since human contact is not classified as a ‘single identifiable human need such as warmth, food or exercise’. Extreme isolation, even for life, is not considered under the US constitution to be a denial of the ‘minimal civilised measure of life’s necessities’.

Strasbourg, the European court of last resort, has been criticised in the past for a lack of imagination, or at least of judicial understanding, of the impact of solitary confinement on prisoners, and of having ‘too ready an acceptance of state interests’. On the one hand, it has been reluctant to judge actual solitary confinement regimes as being in violation of the Convention, but, on the other, it has reminded itself of the irreducible nature of Article 3: ‘States face very real difficulties in protecting their populations from terrorist violence … the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned. The nature of the offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article 3.’

But it is precisely the ‘nature of the offence’ that will condemn the extraditees to conditions of imprisonment and lengths of sentence that are an inevitable consequence of the civilian trials constitutionalists argue for, established as these practices have become within an entirely constitutional structure. Is indefinite military detention really any worse a prospect?

You can read the full article at the web site of the London Review of Books. Although most of the site requires a subscription to access, the LBR has made this and other important commentary by Gareth Peirce available to all readers.

* Article 3 of the European Convention on Human Rights: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

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Filed Under: civil liberties/civil rights, Constitution, Eighth Amendment, federal prisons, human rights, international, international agreements, politics of punishment, psychological effects, sentencing, solitary confinement, supermax prisons, terrorism cases, torture Tagged With: , , , , , , , ,