Although the impending closure of the prison at Guantanamo Bay symbolizes the promises and ideals of the still-young Obama administration, transferring its detainees to the presently under utilized prison at Thomson, Illinois offers no change for the better. Tom Parker, Amnesty International USA policy director, recently told the New York Times, "The only thing that President Obama is doing with this announcement is changing the ZIP code of Guantanamo." When Thomson is retrofitted to become the most secure of the super-max American prisons, Parker's sound bite may amount to understatement. Based on the American prison culture and conditions in other super-max penitentiaries on "American soil," the Guantanamo detainees may soon be longing for Cuba and those balmy breezes off the Caribbean.
Do the untried and unconvicted Guantanamo inmates require this level of security? Absent a particularized showing of need, locking up a "detainee" in virtual isolation—unearned suffering—is abject cruelty.
While President Obama has eliminated waterboarding and other methods of overt torture, the living conditions at a super-max facility—in many respects far worse than the reported living conditions at Guantanamo—are another form of torture that has become disturbingly commonplace in American prisons and jails.
These deplorable conditions are already well known in the criminal law community. Prisoners at a super-max or other special housing units are locked up in complete isolation for 23 hours each day. The cell is often windowless, with artificial light kept on day and night. Although inmates are locked up alone, there is no privacy. A camera keeps a constant watchful eye. There is virtually no contact with other prisoners. The prison guards provide no company. A tray passed through a narrow horizontal slot in the cell door feeds the prisoner. The horizontal slot is multi-purpose. Before the inmate leaves the cell he puts his hands behind him and then through the slot, waiting to be cuffed. Only when cuffed is the door opened. The prisoner's legs are shackled before he is awkwardly led to his twice-weekly shower or his daily hour of exercise. When out of the cell, there is no social interaction. Exercise will be taken in an outdoor cage under the cold gaze of a usually silent guard. On many days there will no exercise because of inclement weather and the prisoner remains in his cell for the full 24 hours, sometimes weeks on end. Reading material is scarce; a radio and a small black & white television with limited reception are the only form of entertainment. There is no collective prayer; services are piped in through the radio.
It may well be that some convicts are so dangerous or so violent that they have to serve their sentence in total confinement with no freedom of movement. The Bureau of Prisons website describes the federal penitentiary at Florence, Colorado as a facility that houses offenders "requiring the tightest controls." It is the facility that houses convicted terrorists Ramzi Yousef, Zacarias Moussaoui and "shoe bomber" Richard Colvin Reid. The question then is whether the untried and unconvicted Guantanamo inmates require that level of security? Absent a particularized showing of need, locking up a "detainee" in virtual isolation--unearned suffering—is abject cruelty.
The closing of Guantanamo was one of the most prominent promises of the Obama campaign. It was a promise that held enormous symbolic value, a profound rejection of compromised human rights and the seemingly unbounded abuses of the Bush administration. But for the most part the problem has already been addressed. The physical torture has ended and the people who operate Guantanamo are now reported to be more sensitive to the prisoner's needs. There is more freedom of movement and at least some social interaction. But now, the president seems stuck with Guantanamo as metaphor. The solution, though, does not require transfer of the detainees to a prison that once again will show the worst that America has to offer.
It seems that President Obama has crossed the Rubicon with Guantanamo and maintaining the prison there, while practical, is politically impossible. But the Guantanamo detainees, some to be held without a release date in sight, can be housed within our borders in a secure facility without the needless and draconian measures of a super-max.
Gerald L. Shargel, a member of the New York Bar since 1969, has handled numerous high-profile cases at both the trial and appellate level. He has written for The New York Times, the Los Angeles Times, the New York Law Journal and the online magazine Slate. Mr. Shargel, a Practitioner-in-Residence at Brooklyn Law School, recently authored a law review article published in the Fordham Law Review, "Federal Evidence Rule 608(b): Gateway to the Minefield of Witness Preparation."