Prisons: The Wrong Place to Privatize

The U.S. Supreme Court (5-4) recently upheld a California Federal District Court ruling that ordered a reduction in the state’s prison population from 156,000 to 126,000, because the conditions were so overcrowded and bad, they violated the Eighth Amendment ban against Cruel and Unusual Punishment.

Although the California-owned prison facilities were designed to hold a maximum of 80,000 prisoners, the state system was operating at about 200% of capacity. In some situations, up to 54 prisoners shared a single toilet. Prisoners were also being denied minimal health care, as medical conditions were untreated, or ignored, and suicidal inmates were held in cage-like booths.

While conditions in California’s facilities were unnecessarily cruel, they were probably not unusual. Throughout the country, other states also have overcrowded substandard conditions.

Most lawyers would agree it is not easy to sue a state government, and it is even more difficult once state functions have been privatized. Unfortunately, the trend towards privatization has been growing. The Republican-controlled Florida legislature recently reduced the State Dept. of Corrections staff by 1,751 workers, and voted to privatize even more of their state prisons.

The worst problem with privatization is the Bill of Rights was created as a check against the conduct of the government. It was not written to control the behavior of private sector actors. Right-wing judges interpret the 8^th Amendment ban against Cruel and Unusual Punishment as applicable only to the government.

If the California prison situation had been operated by private contractors, the prisoners’ case would have been much more difficult, since the defense attorneys would have argued the 8^th Amendment simply did not apply.

Some government functions should never be privatized. Prisons are one of them. Anyone in the custody of the state must be treated humanely, but there is no guarantee of such treatment, once the state is not involved. States should not delegate the job of incarceration to private sector profiteers, as they would certainly cut financial corners even more than states like California.

Torture: What The Law Says About It

The Geneva Convention, relative to the Treatment of Prisoners-of-War, (as amended 1949) was ratified by every member of the UN, including Afghanistan, Iraq, and the U.S. Those who have prisoners must, as a matter of international law, obey it. Since the treaty cannot be described any better than through its own terms, the following is a series of quotes from the Geneva Convention:

HUMANE TREATMENT: “Prisoners-of-war must at all times be humanely treated. Any unlawful act or omission…causing death or seriously endangering the health of a prisoner-of-war, in its custody, is prohibited, and will be regarded as a serious breach.…Prisoners-of-war must at all times be protected particularly against acts of violence” (Art. 13).

NO TORTURE: “No physical or mental torture, nor any other form of coercion, may be inflicted upon prisoners-of-war to secure from them information of any kind” (Art. 17).

INTERROGATION LIMITS: “Every prisoner-of-war, when questioned… is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number (Art. 17). “Prisoners-of-war, who refuse to answer, may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment, of any kind” (Art. 17).

NO DARK CELLS: “Corporal punishments, imprisonment in premises without daylight and in general, any form of torture or cruelty are forbidden.” (Art. 87).

NO CLOSE CONFINES: “Prisoners-of-war may not be held in close confinement except…during…circumstances which make such confinement necessary” (Art. 21).

NO ISOLATION: “Prisoners shall not be separated from prisoners-of-war belonging to the armed forces with which they were serving at the time of their capture” (Art. 22).

FOOD: “Canteens shall be installed in all camps, where prisoners-of-war may procure foodstuffs, soap and tobacco and ordinary articles in daily use” (Art 28).

SHELTER: “Prisoners-of-war shall be quartered under conditions as favorable as those for the forces of the detaining power, who are billeted in the same area….The foregoing provisions shall apply in particular to the dormitories of prisoners-of-war, as regards both total surface and minimum cubic space, and the general installations, bedding, and blankets” (Art 25).

MEDICINE: Medical inspections of prisoners-of-war shall be held at least once a month (Art. 31).

RECREATION: “The detaining power shall encourage the practice of intellectual educational and recreational pursuits, sports and games amongst prisoners, and shall take measures necessary to ensure the exercise thereof by providing them with adequate premises and necessary equipment” (Art 38).

MAIL: “In the event a prisoner is transferred, prisoners shall be advised of their new postal address, and allowed to inform their next of kin…Mail and parcels addressed to their former camp shall be forwarded to them without delay” (Art. 48). “Every prisoner-of-war shall be enabled to write direct to his family…informing his relatives of his capture, address and state of health (Art. 70). “Prisoners-of-war shall be allowed to send and receive letters and cards…not less than two letters and four cards monthly” (Art. 71). “Prisoners-of-war shall be allowed to receive…parcels or…shipments containing in particular, foodstuffs, clothing, medical supplies and articles of a religious, educational or recreational character” (Art. 72). “The censoring of correspondence addressed to prisoners-of-war, or dispatched by them, shall be done as quickly as possible” (Art. 76).

RED CROSS: There shall be “no obstacle to the humanitarian activities which the…Red Cross…undertake for the protection of prisoners-of-war, and for their relief” (Art. 9).

ACCESS TO PRISONERS: “Representatives or delegates of the protecting powers, shall have permission to go to all places where prisoners-of-war may be, particularly to places of internment, imprisonment and labor, and shall have access to all premises occupied by prisoners-of-war….They hall be able to interview the prisoners and in particular the prisoners representatives, without witnesses, either personally, or through an interpreter” (Art. 126).

Guantanamo: A Long Prison History

10 years ago, President Bush invaded Afghanistan and opened the Guantanamo Bay Prison. An estimated 800 men were rounded up and shipped to the Cuban enclave. Photos surfaced showing them in orange prison garb with their hands bound, legs shackled, and faces covered with masks. Many were captured based on nothing more than hearsay, often in response to bounties. Some were not involved in any war, but were linked to certain organizations. Most detainees had no history of any hostile act against the U.S.

President Obama pledged in 2008 to close Guantanamo, but the Congress blocked his efforts. He also said in 2009 the detainees would be tried in federal court, but now they appear to be going back to military tribunals. The issue of holding trials in the regular courts, or military tribunals, depends of the status of the prisoners.

The first issue was: are the prisoners civilians or combatants? Civilians are entitled to a trial in a typical criminal court, or an outright release, if there is no evidence against them. Combatants are people who carry arms. They are either lawful or unlawful. Lawful combatants, such as ordinary enemy troops, not accused of any war crimes, may not be put on trial, simply for serving as soldiers. They may be held for the duration of the conflict, but are entitled prisoner-of-war status. Prisoners may be tried in a military tribunal as unlawful combatants, only if they violated one of the Laws of War. If there is doubt as to their classification, they are protected by the Geneva Convention, until their status is determined by a competent judge.

President Bush initially found none of the prisoners were civilians, entitled to a release, or a trial in the regular court system (2002). He declared they were combatants, and more specifically, unlawful combatants, meaning he accused them of war crimes.

Bush issued an Executive Order (2001) ordering all prisoners to be tried by Military Commission, instead of military court-martial or civilian court. He gave the Commission exclusive jurisdiction. He repealed the ordinary rules of law, as he decreed: “It is not practicable to apply in military commissions…the principles of law, and the rules of evidence, generally recognized in the trial of criminal cases in the district courts.” He did not explain why he thought it was necessary to suspend the rights of the accused.

The Defense Dept. issued procedures for the military commissions (2002). The commissioners, prosecutors, and chief defense counsel would be picked by the Dept. Civilian defense lawyers would only be allowed if the Dept. pre-approved. Defense lawyers could be excluded from the hearings, if the Pentagon felt national security was at risk. Hearings were to be conducted in secret and closed to the media. Even the accused could be excluded from the room. He could see only that evidence the military allowed him to see. There would be no right to a speedy trial.  There would be no remedy or appeal: “in any court of the U.S., or any State thereof, or any court of a foreign nation, or any international tribunal.”

When the Pentagon filed their first charges (2004), prisoners filed Habeas Corpus petitions in the federal courts challenging Bush’s military system. In Hamdi v Rumsfeld (2004), Bush argued Hamdi was a combatant and could be held indefinitely, without charge. Hamdi said he was an innocent U.S. civilian, effectively serving a life sentence. The Supreme Court ruled the prisoner had a due process right to contest his status as a combatant.

Bush then created a Combatant Status Review Tribunals (2004) to determine if detainees were properly classified. Panels of military officers reviewed each case. They defined combatants as members of the Taliban, al-Qaeda, or other associated forces. After their reviews, they found some prisoners were not in fact combatants, but they continued to hold them anyway (2005).

Meanwhile, Congress passed the Detainee Treatment Act (2005), which attempted to override Hamdi, by denying Guantanamo prisoners Habeas Corpus petitions. That law was challenged in Hamdan v Rumsfeld (2006), along with Commission procedures, and the type of war crimes that could be prosecuted. The Supreme Court held Congress could not outlaw Habeas Corpus petitions. Procedurally, Hamdan did not want to be tried by Bush’s Commission. He instead wanted a trial in a military court-martial, where the Uniform Code of Military Justice would be applied. The Court agreed and ordered the use of courts-martial rules. As to the substantive charges, Hamdan was accused of conspiracy, but no specific act of wrongdoing. He argued conspiracy, by itself, is not a violation of the Laws of War. The Court agreed saying, the offense must violate the Laws of War, and conspiracy, in and of itself, does not appear in the Hague Conventions or the Geneva Conventions. They also said violations of the Laws of War happen during war, and cannot pre-date the conflict. The Court concluded none of the acts Hamden was alleged to have committed violated any of the Laws of War. After the Supreme Court ruling, a Republican-controlled Congress responded by passing the Military Commissions Act (2006), which again suspended Habeas Corpus, and resurrected Commission rules.

It’s time to be done with Guantanamo. Long ago, the Americans were right as they liberated Cuba and Guantanamo from Spain in the Spanish-American War (1898). The U.S. went wrong when they stayed in Cuba, until the Cubans agreed to lease Guantanamo Bay to the U.S. Navy. The U.S. has now had a lease on Guantanamo since 1903, and it’s time to vacate the premises. The U.S. needs to complete the remaining prisoner cases, close the base, bulldoze the buildings, and give Guantanamo back to Cuba.