Torture Memo Author, Now a Federal Judge, Still Justifying Torture

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Jay Bybee -- who signed off on waterboarding as a Justice Department lawyer -- ruled last week that the government should be immune from liability for torture.

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Evan Vucci/AP

Frank Rich is absolutely right. While a relatively small group of civil libertarians, journalists, and lawyers fret over the Obama Administration's "targeted killing" program, and the risible judicial and legislative acquiescence to it, the fact of the matter is that the vast majority of Americans either support the broad use of drone strikes abroad or don't know enough about the issue to have an informed or passionate opinion about it. Those of us sounding the alarm should accept the sad fact that America really doesn't give a crap about how much due process Anwar al-Awlaqi received before he was blown up.

To hundreds of millions of people, whose lives are too busy or jumbled to read "white papers" or OLC memos, the dubious legal justifications the Justice Department's lawyers have ginned up in support of the administration's "lethal operations" are as irrelevant as are the dubious legal justifications many of those same federal officials have offered for keeping scores of terror-law detainees at "Camp Justice" at Guantanamo Bay, Cuba. We don't want to hear the details -- just take care of it, the American people have consistently said to officials of two successive administrations.

Take Thursday, for example. Following a memorable day in which President Obama's choice to head the Central Intelligence Agency was questioned at length by members of the Senate Intelligence Committee, a day during which John Brennan was asked (lamely, but still) about the drone program, the extrajudicial killing of Americans, and waterboarding as torture, CBS News led its evening broadcast with news of a snowstorm heading toward the East Coast. NBC News and ABC News led their broadcasts with news of an unusual manhunt in California -- cops looking for a rogue cop.

At least the networks got around to covering the Brennan hearing. The same can't be said for an atrocious prison ruling last week out of California authored by 9th U.S. Circuit Court of Appeals Judge Jay S. Bybee. You may remember Bybee as the "torture memo" author who did not disclose that fact to members of the Senate Judiciary Committee during his 2003 confirmation hearing.* Today, life-tenured, free from any accountability for one of the most shameful legal episodes in our nation's history, Judge Bybee is still leaving his mark on the law of torture -- still justifying its use and protecting those who torture in our name.

Contraband Watch

On January 31st, in a 2-1 ruling authored by Judge Bybee, the 9th Circuit reversed a federal trial judge's ruling that had permitted a prisoner's civil rights lawsuit to proceed a little further toward trial. The prisoner, Rex Chappell, had alleged that he was tortured by his guards when he was placed on a seven-day "contraband watch." The defendants in the case, federal prison officials, argued that the case had to be dismissed long before trial because as a matter of law they were entitled to immunity from such lawsuits.

Here is the link to the ruling in the case styled Chappell v. Mandeville. From the ruling:

Rex Chappell was a prisoner in California State Prison, Sacramento when his fianceé, Philissa Richard, came to visit him on April 28, 2002. When Richard entered the prison facilities she was wearing a ponytail hairpiece; the next day the hairpiece was discovered in a trash can near the visiting room. Prison officials then searched the entire visiting area and found spandex undergarments in the women's bathroom. Both the hairpiece and the undergarments tested positive for cocaine residue. Richard admitted that the hairpiece was hers, but an investigation did not conclude whether the undergarments also belonged to Richard. A background check revealed that Richard had a long history of felony offenses, including numerous drug offenses.

Prison staff conducted a search of Chappell and his prison cell, during which they notified Chappell that they believed that someone had introduced drugs through a hairpiece. The officials discovered three unlabelled bottles of what appeared to be eye drops in Chappell's cell. The liquid in the bottles tested positive for methamphetamine.

So, on April 30, 2002, Chappell was placed on "contraband watch." The text of the ruling tells us next precisely what that means.

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.

Chappell generally confirmed that these policies were applied to him while he was under contraband watch. 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.

The Lawsuit

Chappell sued, claiming that his Eighth Amendment right to be free from "cruel and unusual" punishment had been violated by the "contraband watch" and that he had a due process right to be heard before he was placed on the watch. The second argument Chappell made was weak. But the first one raised profound questions about how far prison officials can go in their zeal to secure their facilities from drugs -- and how far the courts can go in providing some oversight over those prison officials when their treat inmates the way Chappell was treated.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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