Abu Zubaydah torture

One of dozens of drawings by Guantánamo prisoner Abu Zubaydah depicts the torture he and other detainees suffered at the hands of U.S. interrogators.

(Image: Abu Zubaydah)

Two Sides of the Same Coin: the Carceral State from Guantánamo Bay to Death Row

After September 11, 2001, the federal government saw an opportunity to legalize torture in a way that targeted another BIPOC community, and legitimized what it already does to its own citizens.

"Ron DeSantis... witnessed the torture, he was at Guantánamo during one of the worst years there. Yet, when he left Guantánamo, he became a leader. He became the leading voice against closure of Guantánamo. Now he is running for the presidency. Imagine that. You know, that man, with his beliefs, with his views.. .he's going to create Guantánamo within the United States."—Mansoor Adayfi, former detainee #441

The Guantánamo Bay detention facility in Cuba is often viewed as an anomaly of the way America treats people in confinement. This assumes that those incarcerated in state and federal prisons receive decent, just treatment, and that Guantánamo is the worst the U.S. has to offer. This is true, in part, but leaves out the larger fact that Guantánamo was spawned from the U.S. carceral state.

After September 11, 2001, the federal government saw an opportunity to legalize torture in a way that targeted another BIPOC community, and legitimized what it already does to its own citizens. Sometimes the hardest truths are also the cruelest: Guantánamo and U.S. prisons are two sides of the same coin.

One by one, hands bound behind their backs, the detainees were marched beyond the confines of the detention center, until the facility's lights shone in the dark from a distance. They were made to kneel in the dirt, the soldiers that brought them to the remote location standing behind, rifles leveled as if waiting for the command to open fire. In the silence, the men on their knees wept. Some begged for their lives. Others prayed a final prayer. It was an excruciating several minutes. The order never came. It had been a mock execution meant to intimidate and terrorize and torture.

The Convention Against torture and Other Cruel and Inhuman or Degrading Treatment or Punishment (CAT Convention) defines torture as any act that intentionally inflicts mental or physical pain or suffering to obtain information or a confession, punishes an individual or third party for an act they committed or are suspected of committing, or intimidates and coerces for any reason based on discrimination, all of which occurs with the consent or at the direction of a public official or someone acting in an official capacity.

What Adayfi may not have known is that what happened at Guantánamo is rooted in the U.S. carceral state, its devolved standard of decency and exceptional brutality—a pattern and practice carried out on its own citizens in a form of class warfare.

As a signatory of the United Nations and Geneva Convention, the U.S. government should be familiar with the CAT Convention. Indeed, for other countries to join the U.N., they cannot, for example, violate human rights. However, where the use of torture and capital punishment are concerned, America holds other countries to high democratic ideals, yet cannot seem to abide by those same standards. According to Joseph Pugliese, professor of cultural studies at Macquarie University, torture is a "normative practice" in the operation of U.S. interests, through an application of its laws both domestically and abroad.

The detention facility at Guantánamo Bay Naval Base, Cuba, was established in that precise location to deny those confined there meaningful access to the U.S. legal system, constitutional rights, and other processes bound by the international laws of war. The U.S. government confined 780 Muslim men and boys, from 45 different countries, without charges, not as prisoners owed a certain level of human dignity, but as "enemy combatants" who could be dehumanized and tortured under the false flags of "patriotism" and "justice."

Former Guantánamo Bay detainee No. 44, Mansoor Adayfi, was kidnapped by an Afghan warlord and trafficked to the U.S at the age of 19. Adayfi spent 14 years at Guantánamo being beaten, degraded, tortured, and interrogated as an alleged "enemy combatant" before it was determined he was no longer a threat to U.S. security interests and could be released. In his memoir, Don't Forget Us Here, Adayfi asks readers to imagine a reality where American boys, 18 years old or younger, were imprisoned without charges, tortured, punished, and experimented on, and forced to live in solitary confinement for years, if not decades.

What Adayfi may not have known is that what happened at Guantánamo is rooted in the U.S. carceral state, its devolved standard of decency and exceptional brutality—a pattern and practice carried out on its own citizens in a form of class warfare. Some glaring evidence of this link (among the innumerable statistics and cases of institutional brutality) between Guantánamo and the U.S. carceral state is that of Abu Ghraib.

In 2004, U.S. Army reservists guarded Iraqi POWs at Abu Ghraib prison in Iraq. It would eventually be discovered that, alongside some of the most iconic images from the U.S. war in Iraq, the Army reservists responsible for watching the POWs were instead beating, degrading, sexually humiliating, and torturing them. It would also be revealed that the responsible parties, prior to their duty assignment in Iraq, were correctional officers in state prison systems.

The human rights abuses at Abu Ghraib and Guantánamo are, to varying degrees, routine in U.S. prisons: Rape and sexual assaults committed by staff on prisoners, daily physical assaults on people who have spent years in solitary confinement, women forced to give birth while shackled to a hospital bed, brutal cell extractions, unnecessary body cavity searches in women's prisons, and much more. Mental and physical torture, and systemic dehumanizing treatment, are endemic to both state and federal prisons.

"American Citizens will end up one day, being detained indefinitely, tortured, abused, and have no rights. Because if they managed to do it outside, it's on the inside too."—Mansoor Adayfi

While a lack of charges, CIA involvement, and their status as foreign nationals distinguish the individuals held at Guantánamo, Abu Ghraib, and CIA black sites around the world from those who have been convicted of crimes and sentenced as punishment in U.S. prison systems, conditions of confinement are indeed similar. So too are efforts to ignore or otherwise circumvent due process rights, meaningful access to federal court oversight, and the right to be free from cruel or unusual punishments.

In four separate rulings, the U.S. Supreme Court limited the federal government's ability to detain non- U.S. citizens beyond the reach of constitutional protections and international law:

In Rasul v. Bush (2004), the court held that the "complete jurisdiction and control" maintained by the federal government at the Guantánamo Bay detention facility activated the prisoners' right to challenge their confinement in federal court.

In Hamdi v. Rumsfeld (2004), the court held that the Guantánamo prisoners have a right to "notice of the factual basis for their classification [as an enemy combatants] and a fair opportunity to rebut the Government's factual assertions before a neutral decision-maker."

In Hamden v. Rumsfeld (2006), the court held the executive branch's power to detain "enemy combatant" is limited by congressional war powers, which are restricted by international law. The Bush administration's system for trying the detainees was unauthorized under federal law and the Geneva Convention.

In Boumediene v. Bush (2008), the court held that Guantánamo prisoners have the right to challenge their confinement in federal court by filing a writ of habeas corpus. The ruling in Boumediene was necessary because Congress and the Bush administration sought to go around the court's rulings in Rasul, Hamdi, and Hamden, and keep the federal courts out of Guantánamo by suspending the writ of habeas corpus. This was an extension of the belief that the incarcerated do not deserve a review of the circumstances around their confinement, a belief that predates 9/11.

This logic—extend the punishment but not the protection—is used in virtually every criminal case brought against America's underclass or those deemed unworthy of protection or mercy.

A writ of habeas corpus is used to bring a prisoner before a federal court to ensure that person's confinement is not illegal. The original intent of the habeas petition is drawn from the English Habeas Corpus Act, and is equal to the importance of the Magna Carta, the Petition of Rights, and the Bill of Rights. Just as the Habeas Corpus Act protected English liberty, the American habeas petition is a constitutional guarantee of personal liberty. Viewed another way, the habeas petition is a judicial check against government overreach and a protection of the right of any person under U.S. control to be free from wrongful imprisonment. Efforts to undermine, curtail, or otherwise block access to the federal courts through a habeas petition signal naked power grabs by the government and a weakening of the judiciary's independence.

In theory, filing a habeas petition to the federal court of jurisdiction to challenge one's imprisonment as unconstitutional should be a straightforward process. This assumes knowledge of procedural rules, possession of documents that prove the claim, and at a minimum a clear understanding of the charges. The Guantánamo detainees were completely isolated and without knowledge about the formal charges. They were not arraigned, indicted, or given attorneys. They did not even have so much as pen and paper for the first three years of their confinement. Guantánamo was a "black hole" where virtually all information was "classified," "secret," or a national security matter. It would not be until 2004 that attorneys from the Center for Constitutional Rights mounted habeas challenges on behalf of the detainees. Even then, their efforts faced numerous obstacles and government resistance seeking to block access to the federal courts.

U.S. prisoners do not have unfettered access to federal court review of lower court decisions. Rather than classified Military Commission hearings and special designations as "enemy combatants," prisoners in state and federal prisons have to contend with the procedural kudzu of the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA).

AEDPA gutted the federal judiciary's ability to hear and redress constitutional violations that have been overlooked or ignored by state courts. The expressed congressional intent of AEDPA was to reduce the delays in capital post-conviction appeals by imposing strict time and evidentiary constraints on habeas petitions. And though the law may have initially increased executions nationwide, a decade later they returned to pre-AEDPA levels. The unexpressed, and more diabolical, intent of AEDPA changed the way all criminal cases were reviewed by federal courts, making it so the court would not disturb a conviction or sentence unless it was so unconstitutional as to shock the conscience, rendering habeas review worthless to most criminal defendants.

As Guantánamo detainees fought for access to a legitimate court reviewing their confinement, prisoners in the U.S. likewise struggled to attain that same federal judicial oversight. The weakening of the habeas petition had been a longtime goal of conservatives, years before AEDPA. This is critical to understanding the dissent of the conservative justices in Rasul, Hamdi, Hamden, and Boumediene, and how their ideology manifests in constitutional challenges of the death penalty. In these cases the court held that Guantánamo prisoners, or anyone under complete U.S. control in confinement, have a right to file habeas petitions in federal court. The dissent, however, sided with the Bush administration and Republican-controlled Congress: "Enemy combatants" do not deserve constitutional rights.

This logic—extend the punishment but not the protection—is used in virtually every criminal case brought against America's underclass or those deemed unworthy of protection or mercy. Then, to obscure their intent, the narratives around crime and terrorism are threaded with misinformation and appeals to patriotism.

"They constructed their own language" said Mansoor Adayfi. "They said, 'Well, they are detainees, not prisoners. It is rendition, not torture. They are not being tortured. It's enhanced interrogation.'"

Euphemistic language or "doublespeak" is common to most government narratives. It enables the worst human rights violations with little understanding by the average citizen what is actually being said or done in their name. This is how threats to safety were used to pass laws that created mass incarceration, widespread surveillance in the wake of 9/11, and the continued use of the death penalty in America despite its absence in most democratic nations throughout the world. "Justice" for the victims of 9/11 and other crimes is a co-opted word that not only diminishes constitutional protections for the very people who need it the most, it allows for human experimentation, torture, and state-sanctioned murder.

In Glossip v. Gross, the U.S. Supreme Court split along ideological lines and, in a conservative majority opinion, held Oklahoma's three-drug lethal injection protocol did not violate the Eighth Amendment. Glossip was about more than whether Oklahoma's lethal injection was constitutional; it became a pivotal case in the fundamental constitutionality of capital punishment. Simply put, because the conservative justices held a majority on the court, they denied the death penalty could ever be unconstitutional because it is mentioned in the U.S. Constitution.

Writing for the majority, Justice Samuel Alito affirmed the lower court's rejection of the defendant's argument that Oklahoma's lethal injection violated their Eighth Amendment right to be free from cruel and unusual punishment. Alito also held that the prisoners failed to provide an alternative method of execution that "entails less risk of pain." This single statement is responsible for opening the door for states to use other methods of execution, not just the lethal injection. Alito has defended the death penalty in previous cases. In Glossip, he continued that trend: "The death penalty was an accepted punishment at the adoption of the Constitution and the Bill of Rights." The irony of the statement, using the Bill of Rights to ignore the inherent cruelty of the lethal injection, was apparently lost on the justice.

The people who pursue, sanction, and order this brand of "justice," the torture and murder of incapacitated human beings, are seldom around when it is carried out.

Justice Antonin Scalia, in his concurring opinion for Glossip, contended that the Eighth Amendment "was understood to bar only those punishments that added 'terror, pain, and disgrace' to an otherwise permissible capital sentence." Terror, pain, and disgrace are in fact the purpose of capital punishment. If any of the justices who so vigorously defend the use of the death penalty were to be required to witness it in action, if they had a shred of humanity they would not defend it, or the various methods for carrying out an execution, much longer. Especially if they saw a botched execution.

In November, 2022, Kenny Eugene Smith survived Alabama's first attempt to execute him. For over an hour and a half, Smith was tortured as his executioners repeatedly tried and failed to insert IVs in his body for the lethal injection. The Rev. Dr. Jeff Hood was Smith's spiritual adviser and ultimately became his best friend in the final moments of his life. In a phone interview, Dr. Hood described some of what Smith experienced in the aftermath of the botched execution:

Kenny compared it to being under a sewing machine, one where the needle punctured deep over and over again. Then, after it was over, it became a mental image that gave him nightmares and terrified his every waking thought. A mental sewing machine constantly stabbIng into his mind.

Smith was driven insane by the botched execution, not just with nightmares, but pervasive anxiety, PTSD, and numerous other diagnoses. Short of being a comatose zombie, doctors could not give Smith enough meds to make him forget. It was a brutal choice: Be sober enough to function socially and suffer images of hypodermic needles perforating his flesh, or ingest all they could give him, still suffer, and be unable to communicate with his wife, friends, and family in his remaining time on Earth. He chose the former.

To underscore the excruciating nature of Smith's botched execution, the minister who was there in 2022 disappeared, not wanting anything to do with executions or be reminded of them by maintaining contact with Kenny Smith. The minister had been traumatized by what he saw.

It bears mentioning that Kenny Smith was not sentenced to death by a jury of his peers; they actually recommended life imprisonment. But the trial judge took matters into his own hands and sentenced Smith to death. The judge's order was the cold calculation of premeditated murder, a morally bankrupt decision that mocked the word "justice."

As the months passed, Smith, Dr. Hood, and Smith's family and friends talked about the fear of yet another execution date. It was one thing to talk about, though, said Dr. Hood, but another to realize with increasing horror and monumental disappointment in humanity that the U.S Supreme Court refused to even review Kenny Smith's emergency appeal for a stay of execution using the novel execution method of nitrogen hypoxia. Only the court's liberal justices—Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—were willing to hear the appeal, but it takes four justices, and none of the conservative justices were interested.

Though not in the execution chamber like Dr. Hood, independent journalist Lee Hedgepeth attended Smith's execution and Alabama's first use of nitrogen hypoxia. Hedgepeth writes that Kenneth Smith reacted immediately to being gassed: "He began thrashing against the straps, his whole body and head violently jerking back and forth for several minutes."

"Soon for around a minute, Smith appeared heaving and retching inside the mask," Hedgepeth continued. Ten minutes later, despite the steady flow of nitrogen gas, Smith made his final visible efforts to live.

After this grotesque display of State government power over its citizenry, Alabama Attorney General Steve Marshall advertised the revitalized gassing of undesirables: "Alabama has done it, and now so can you." The AG did not attend Smith's execution. Neither did the judge who sentenced Smith to death or the district attorney who pursued the capital sentence. In fact the people who pursue, sanction, and order this brand of "justice," the torture and murder of incapacitated human beings, are seldom around when it is carried out. This is by design, and makes it easier for them to sleep at night, secure in their power and false morality.

"People should have to engage with the punishments they want to inflict on others. Whether that's the judge, jury, prosecutor, or whoever... Part of me thinks they should be forced to carry it out. The process has become too sanitized, the public too disconnected from what the death penalty is: the premeditated murder of another human being."Rev. Dr. Jeff Hood

Five Muslim men accused of conspiring in the September 11 2001 terrorist attacks have yet to go to trial because of numerous pretrial proceedings at Guantánamo that have lasted over a decade. Military prosecutors made an offer in March 2022 that would spare the prisoners a death sentence if they admitted their alleged roles in 9/11. Defense attorneys of the detainees said their clients wanted certain "accommodations": treatment from a civilian-run program for ongoing health problems they suffer as a result of the torture they experienced, assurances they would not serve their sentence in solitary confinement, and the ability to eat and pray in a communal setting.

Some of the relatives of the nearly 3,000 victims want a trial with the prospect of the prisoners being sentenced to death. Others are "outraged" with the possibility of plea deals, calling for "justice" not "closure." Still other families want the plea agreements to end the indefinite detention at Guantánamo.

Elizabeth L. Miller lost her father Douglas C. Miller, a firefighter who gave his life on 9/11. At the age of 11, Miller wrote to then-President George W. Bush and, along with her classmates who signed with her, begged him to end the wars in Iraq and Afghanistan: "We should be the good country, the peaceful country, but we're not" As a college student, Miller spoke at a 9/11 anniversary event, calling for peace and forgiveness, reminding the attendees the attacks were the actions of a few, not the many. Her family was not invited back. Later, Miller would go on to learn more about the Middle East and wars in Iraq and Afghanistan, and how Guantánamo was used to confine and torture hundreds of people without charges or attorneys:

I learned how other [detainees], including the five men who would later be charged with planning and supporting the 9/11 attacks, were tortured at CIA black sites in foreign countries. All of this was done in the name of justice for the victims like my father. But I felt the United State had abandoned its commitment to human rights and the rule of law. I was ashamed.

President Joe Biden rejected the plea agreements offered to the five men at Guantánamo, declining to "accept the terms" in the United States v. Mohammed, et al. Although Biden placed a moratorium on federal executions after his predecessor executed 12 people in less than a year, this has not stopped federal prosecutors from pursuing capital sentences, nor does it provide more than a fever dream that any elected official with the power to do so has the political will to end the American republic's love affair with punishment sans mercy.

If there is to be a more just society, a United States that closes the Guantánamo Bay detention facility and ends mass incarceration and punishments like those suffered by Kenny Smith, it requires public accountability. Not just accountability for the vindictive, bloodthirsty elected officials calling for the deaths of other human beings, or those who misinform and stir angry mobs with appeals to nationalism. Rather, accountability for anyone who can claim imprisonment and death are a form of "justice," but will never face the person they consign to that fate, or witness the horror of their life thrashing against the straps of a gurney as it is extinguished. Accountability, the sort called upon by those demanding law, order, safety, and justice, is a coin with two sides, and no room for hypocrisy.

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