A Human Rights Court Gives Torture the Green Light
On September 24, the European Court of Human Rights (ECHR) bowed to pressure from the US and British governments and turned a blind eye to the torturous conditions at the federal Supermax prison, ADX (short for Administrative Maximum), in Florence, Colorado, where prisoners languish in long-term solitary confinement. Dealing a blow to human rights on both sides of the Atlantic, the court rejected an appeal by five terror suspects held in Britain to block their extradition to the United States. The filing in Babar Ahmad and Others v. UK argued that if the defendants are convicted, the conditions of their confinement at ADX would violate their human rights.
While the prison at Guantánamo Bay has long attracted global condemnation, the United States has been more successful in shrouding domestic facilities like ADX from public view. The European Court allowed itself to be misled—accepting facts and figures roundly disputed by human rights advocates and researchers and ignoring an intervention submitted by the UN special rapporteur on torture.
Opened in 1994 and described by a former warden as a “clean version of hell,” ADX was originally conceived by the Bureau of Prisons as a “behavior management” facility. Prisoners “earned their way in” through bad or dangerous behavior at other prisons (and could conceivably earn their way out). But after 9/11, BOP made any link to “terrorist activities” grounds for incarceration at ADX. And so with the proliferation of these “material support” prosecutions, the prison that holds Ted Kaczynski, Terry Nichols and Robert Hanssen has also become a prison that disproportionately holds Muslim prisoners (even those convicted on charges involving no specific plots, such as Fahad Hashmi, Dritan Duka, Oussama Kassir and Seifullah Chapman).
The most restrictive prison in the federal system, ADX was built to keep every prisoner in solitary confinement and designed to limit all communication among prisoners. Cells are the size of a small bathroom with thick concrete walls and steel doors. A prisoner must eat, sleep, shower, read, pray and use the toilet in the cell. For one hour a day, prisoners may exercise in an outdoor cage too small to run in or in a windowless indoor cell, empty except for a pull-up bar. The outdoor “recreation” cages are known as “dog runs” because they resemble kennels. The only “contact” ADX prisoners have with other inmates is shouting to each other through toilets, vents or the outdoor cages. They receive food through a slot and eat every meal alone within arm’s length of their toilet. Psychiatric care at ADX often consists of shouting to prisoners through their doors to inquire if they’re “OK.”
The isolation at ADX is even more severe for prisoners placed under Special Administrative Measures (SAMs), issued by the attorney general when “there is substantial risk that a prisoner’s communications…could result in death or serious bodily injury.” No further justification is required. Disproportionately used on terror suspects—and likely to be used on Ahmad et al.—SAMs typically prohibit communication with anyone except attorneys or immediate family. Letters to and from family can take up to six months to be cleared by the government; no other nonlegal correspondence is allowed. Lawyers and family members risk prosecution if they publicly disclose any detail from conversations with a prisoner—thereby shielding any ill treatment from view or sanction. Conditions for SAM prisoners at ADX have prompted hunger strikes and forced feeding, but the public hasn’t learned about them because of this wall of secrecy. Portions of declarations from SAM prisoners describing their treatment have been put under seal by the court at the government’s request.
Beginning in 2007, the ECHR stayed the extraditions of Babar Ahmad and his co-defendants to consider whether such transfers might breach the European Convention on Human Rights, which prohibits torture and inhumane or degrading treatment or punishment. The court made a series of requests for information about ADX—requests the United States initially refused to accommodate, citing logistical and national security reasons.
After numerous extensions, on October 24, 2011, the Obama administration finally submitted a report based on a “random sample” of just thirty prisoners. (The facility holds 490 men.) The United States touted the modern conditions at ADX, noting that prisoners get TV and “outdoor recreation,” and arguing that, in fact, conditions there do not constitute solitary confinement since prisoners can talk to guards and shout to each other through the walls. Using its cherry-picked sample, the government claimed that prisoners spend an average of 3.2 years in solitary at ADX and refused to provide any information on the Special Security Unit, where SAM prisoners are held. A larger sample of 110 ADX prisoners, from legal research conducted in 2010 and 2011 for a capital case, found an average of 8.2 years. This and other rebuttal evidence from the defense—including a submission by UN Special Rapporteur on Torture Juan Mendez—was rejected by the court on technical grounds.
ECHR judges were likely influenced by a visit to Washington on March 1, when five current and former members attended a closed-door conference—“Judicial Process and the Protection of Rights”—with Supreme Court Justices Stephen Breyer, Samuel Alito, Anthony Kennedy and Sonia Sotomayor, as well as State Department legal adviser Harold Koh and Derek Walton, Britain’s lead lawyer in Ahmad. A month later, the ECHR ruled that the extradition could proceed.
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The five defendants filed an appeal in July. More than 150 scholars (including Bruce Ackerman, K. Anthony Appiah, Judith Butler and Gayatri Spivak) and twenty-six human rights groups (including the ACLU, the Center for Constitutional Rights and Human Rights First) wrote to the ECHR asking it to take the appeal. Their letter argued that the information provided by the Obama administration was “insufficient and misleading” and failed “to account honestly for the brutal conditions of confinement and isolation at ADX Florence that regularly contribute to acute and long-term psychological damage to prisoners housed there.” They further stressed that the decision would have “serious implications…for legitimizing the use of conditions of confinement that violate human rights.”
In rejecting the appeal, the ECHR ignored these entreaties, along with voluminous defense submissions on the practice of solitary confinement in the United States and the inhumane treatment Muslim prisoners encounter—not just at federal prisons but in pretrial facilities like the Metropolitan Correctional Center in New York. Conditions there have been described as worse than at ADX; suspects are often held for years in pretrial solitary confinement, degrading their ability to participate in their own defense. SAM detainees exercise alone in an indoor cage. News from outside is sharply restricted. The facility is dirty and prisoners have said it is so cold in the winter they cannot concentrate. Prisoners placed under SAMs have a camera on them at all times, including when they shower and use the toilet. Some have been punished for attempting to speak through the walls; one man was punished for using the Muslim greeting “Asalaam Aleikum.”
When other countries’ treatment of prisoners falls out of step with international standards, the world community (at times prompted by the United States) steps in to censure them. In January, the ECHR refused to extradite alleged Al Qaeda affiliate Abu Qatada to Jordan on the grounds that the legal system there countenances torture. But when the United States tortures prisoners with years of solitary confinement, it gets away with it—with a stamp of approval from a court designed to protect human rights.
In “New York’s Black Sites” (July 30-August 6), Jean Casella and James Ridgeway reported that that a "blue" state leads the nation in the use of “disciplinary segregation”—or as prisoners call it: torture. The “Guantánamos Here at Home” were exposed by Sally Eberhardt and Jeanne Theoharis in the February 11, 2011, issue—a story that, unfortunately, remains timely.