From Gitmo to Mass Incarceration

In the latest example of the US media treating our war on terror practices as having no relationship to our routine penal policies, the New York Times carries an article by William Glaberson that powerfully describes the mental destruction of terror suspect (and famed litigant) Salim Hamdan:

Next month, Salim Ahmed Hamdan, a Yemeni who was once a driver for Osama bin Laden, could become the first detainee to be tried for war crimes in Guantánamo Bay, Cuba. By now, he should be busily working on his defense.

But his lawyers say he cannot. They say Mr. Hamdan has essentially been driven crazy by solitary confinement in an 8-foot-by-12-foot cell where he spends at least 22 hours a day, goes to the bathroom and eats all his meals. His defense team says he is suicidal, hears voices, has flashbacks, talks to himself and says the restrictions of Guantánamo “boil his mind.”

“He will shout at us,” said his military defense lawyer, Lt. Cmdr. Brian L. Mizer. “He will bang his fists on the table.”

His lawyers have asked a military judge to stop his case until Mr. Hamdan is placed in less restrictive conditions at Guantánamo, saying he cannot get a fair trial if he cannot focus on defending himself. The judge is to hear arguments as soon as Monday on whether he has the power to consider the claim.

Critics have long asserted that Guantánamo’s climate-controlled isolation is a breeding ground for madness. But turning that into a legal claim marks a new stage for the military commissions at Guantánamo. As military prosecutors push to get trials under way, they are being met with challenges not just to the charges, but to Guantánamo itself.

Pentagon officials say that Guantánamo holds dangerous men humanely and that there is no unusual quantity of mental illness there. Guantánamo, a military spokeswoman said, does not have solitary confinement, only “single-occupancy cells.”

Unmentioned in the article is that tens of thousands of US prisoners are currently serving time in so called "supermax" prisons whose routine regime involves precisely the same components of 23 hour a day lock down imprisonment.

That the result of this kind of imprisonment can be mental degeneration by both inmates and staff (and resulting barbaric violence) has been well established for over a decade, at least since the landmark Madrid v. Gomez decision involved California's Pelican Bay prison.

Olympic Torch Farce: San Francisco joins the Culture of Control

Watching Tuesdays shameful display of police over-reaching by the San Francisco police and mayor in their effort to assure that that Olympic torch "run" would not be disrupted by protesters, I could not help but reflect back on the far more violent police overreaching in Chicago 40 years ago this summer at the Democratic National Convention in July of 1968.

In both cases, mayors and their police decided that civic pride over the ownership of a largely symbolic ritual required maximum effort to assure that ordinary people could neither protest nor participate in the events. In both cases extremist demonstrators were blamed. (Read the SFChronicle coverage)

In SF, fortunately, the violence of Chicago was replaced by comedic gestures worthy of an Opera or a BBC satire on overbearing authority. "Runners" who were supposed to run down the City's lovely Embarcadero Boulevard (a "gift" of the '89 Loma Prieta Quake that required the tearing down of the Embarcadero expressway), were whisked by bus to ugly Geary Blvd, where they ran with a phalanx of police escorts by surprised residents. The stirring closing was confined to the SF Airport.

In China today, and Chicago of '68 (Chairman Mao and Chairman Dailey being roughly equivalent in the arts of power), this kind of orchestration would reflect the abiding demand of the Communist (or Chicago Democratic) Party that any show of protest is a form of a sedition, to be punished harshly.

In SF, repression comes in the name of "safety," with Mayor Newsome and Çhief Fong, guaranteeing the press that honoring the scheduled course of the "run" would have necessitated a violent show of force by the SFPD, in which case everyone was really better off with the Disney version they orchestrated, for what could be more sacred in America today then "safety."

The fact that the City has a transit system with a casualty record worthy of Murder Inc. should not distract us from the sincerity with which safety is reduced to the problem of crime and disorder. What David Garland brilliantly characterized as our "Culture of Control" has made "safety" from crime and disorder, the fundamental mandate of our democracy.

The Law at the End of the Law

In Governing through Crime I trace the ways that the war on crime transformed American democracy long before 9/11 or George Bush's war on the Constitution, errr, I mean terror. With a vision of citizenship reduced to protection from violent crime, law makers in Congress and the state legislatures, have responded for thirty years with ever more generous helpings of executive discretion. To be sure that due process values did not resist this delegation, Congress has increasingly shackled the federal courts in their ability to question executive power in the field of crime.

In his Sidebar column in Tuesday's NYTimes, Adam Liptak provides a striking example of what one might call the law of the victim (Megan's Law, etc.), in this case, the ultimate crime law, the law to build a wall on the Mexican border. In what may be the most sweeping exemption from federal laws ever dealt in one act, Congress gave the Secretary of Homeland Security authority to suspend any federal law that interferes with the building of the wall.

While 9/11 is the usual culprit noted to explain these developments by both critics and apologists, the genetic markers of the war on crime are not far below the surface. Asked to defend this striking reduction in the protection of federal laws (including labor, environment, discrimination, etc.):

Mr. Chertoff explained the reasoning behind the law in a news release last week. “Criminal activity at the border,” he said, “does not stop for endless debate or protracted litigation.”