Jay Bybee's Latest "It's Not Torture" Decision
Andrew Cohen at the Atlantic writes about Bush Administration torture memo author, now federal judge Jay Bybee's latest decision justifying torture.
[Bybee]came to conclude as a matter of law that a man shacked at his wrists and shackled by his ankles to his bed, without a mattress, in a cell lit continuously for seven days, who was forced to eat his food like a dog because of his shackles, did not have a constitutional right to present the evidence of this confinement to a jury.
The opinion is here. It's about an inmate in California placed on a "contraband watch." The sickening policy is described in the opinion as: [More....]
Contraband watch, also known as a "body cavity search," is a temporary confinement during which a prisoner is closely monitored and his bowel movements searched to determine whether he has ingested or secreted contraband in his digestive tract. Under prison procedures, the prisoner is first searched and then dressed so as to prevent him from excreting any contraband and removing it from his clothing. The prisoner is placed in two pairs of underwear, one worn normally and the other backwards, with the underwear taped at the waist and thighs. The prisoner is also placed in two jumpsuits, one worn normally and the other backwards, with the suits taped at the thighs, ankles, waist, and upper arms.
The tape on both the underwear and the jump suits is not meant to touch the skin; it is used to close off any openings in the clothing. The prisoner is then placed in waist chain restraints, which are handcuffs that are separated and chained to the side of the prisoner's waist. This prevents the prisoner from being able to reach his rectum. The waist chain restraints are adjustable and can be lengthened if necessary. The prisoner is then placed in a surveillance cell where prison staff watch the prisoner at all times.
The lights are kept on in the cell to allow staff to see the prisoner. To prevent the inmate from concealing contraband, the cell does not have any furniture other than a bed without a mattress. The prisoner is given a blanket, and receives three meals a day and beverages. When the prisoner needs to defecate he must notify the prison staff who will bring him a plastic, moveable toilet chair. Once he uses the chair, the staff will search the waste to determine if it contains contraband.
...In addition to these procedures, Chappell claims that he was also placed in ankle shackles, and chained to the bed. He complains that the waist restraints were not loosened for meals, forcing him to "eat [his] food like a dog; the temperature in the cell was very high; the cell was unventilated; and the lights were "very bright." Chappell alleged that the conditions "did in fact torture [him] mentally" and he felt like he "deteriorat[ed] mentally" during contraband watch. After having three bowel movements that did not reveal contraband, Chappell was released from contraband watch on May 6, 2002.
Chappell sued, claiming an 8th Amendment violation of the ban against cruel and unusual punishment. Bybee tossed it, on immunity grounds, but also saying Chappell's treatment wasn't cruel and unusual punishment -- see Andrew's article explaining Bybee's reasoning. Andrew adds:
Because of the holding, and because of the judge who wrote it, this is a case that cries out for en banc review by the 9th Circuit. Because if this ruling is allowed to stand it will mean that the warped mentality that wrought the torture memos has been transplanted, in the form of Judge Bybee, to domestic criminal law, to non-terrorism cases involving American prisoners who, we all can agree, are supposed to have stronger constitutional rights than the men and women who Jay Bybee once authorized to be tortured.
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