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John Shipton, the father of WikiLeaks founder Julian Assange, poses for a photograph at the Old Bailey Court in London on September 8, 2020. (Photo: Tolga Akmen/AFP via Getty Images)

Assange and the Assurances of US 'Civilized' Torture

What should we make of the US assurances regarding how Assange would be treated if extradited?

Azeezah Kanji

 by Al-Jazeera English

In persisting with its campaign to have Wikileaks founder Julian Assange extradited from the United Kingdom, the US continues to expose its own systemic crimes.

The "assurances" of humane treatment now issued by the United States government—currently under consideration by the UK High Court—testify to the horrors otherwise routinely inflicted by America's mass incarceration state.

For instance, the US has said that it will spare Assange from internment in ADX Florence: the federal super-max built to keep hundreds of prisoners in almost total isolation for years on end, in violation of the UN Convention Against Torture. (In fact, this may be a more devastating form of torture than physical methods, since the brain is turned into a weapon against itself.)

The insistence that Guantanamo is an un-American aberration persists, even as "Little Gitmos" and "Gitmo Norths" have proliferated on American soil.

However, nothing in the assurances protects Assange from being placed in a Communications Management Unit—in some ways even more restrictive than a supermax—as drone whistleblower Daniel Hale was last month.

The US has also vowed to ensure access to "any clinical and psychological treatment" that prison doctors recommend—Assange's risk of suicide having been deemed the only bar to his extradition in a previous British court decision.

This is questionable comfort from the American prison-medical industrial complex, in which "care" is often the continuation of punishment by other means: isolated segregation in "psychiatric services units"; naked confinement under constant surveillance in "suicide watch" cells; "therapy" delivered to patients locked in phone booth-sized "treatment cages".

In addition, the US has pledged not to subject Assange to the exceptionally draconian solitary confinement regime of Special Administrative Measures (SAMs)—unless, that is, "he was to commit any future act that met the test for the imposition of a SAM".

One of the paradigmatically Kafkaesque features of SAMs—which, in the words of a report from Yale Law School and the Center for Constitutional Rights, "seal off the prisoner from the outside world and shield his treatment from public scrutiny(PDF)" – is that the state does not need to reveal its reasons for imposing them.

In cases such as that of Fahad Hashmi—extradited from the UK and convicted by the US of "material support for terrorism," for allowing an acquaintance to use his cellphone and leave a suitcase of rain ponchos and socks at his apartment—pre-trial SAMs appear to have been applied to break the target's resistance to submitting a guilty plea.

Other previous cases of Muslims extradited from the UK to the US on "terrorism" charges illuminate how assurances—which are both unverifiable and unenforceable – have served as a humanitarian shield for abuse; plausible deniability behind a screen of compassion and responsibility.

Haroon Aswat was extradited despite his diagnosis of paranoid schizophrenia, on the strength of American assurances that he would be provided mental health services. The assurances rendered his fears of ill-treatment "manifestly ill-founded," in the eyes of the European Court of Human Rights. In effect, as a group of critical experts on US counterterrorism warned, this meant that he "could be subjected to the mental health deterioration that will most likely result from solitary confinement … so long as he enjoys occasional access to a psychiatrist".

Aswat is now imprisoned at the Sheridan Federal Correctional Institution in Oregon, where prevailing conditions reportedly include maggot-infested meal trays, denial of treatment for serious medical conditions, deprivation of basic sanitation materials such as toilet paper, and lockdown for up to 24 hours a day. Three prisoners have died there since March, including at least one from apparent medical neglect.

Double-amputee Mostafa Kamel Mostafa was extradited to the US, based on the European Court of Human Rights' understanding that it was "impossible" he would be held in the ADX Florence super-max due to the severity of his disabilities. Yet that is exactly where he ended up: the US transferred Mostafa to ADX in 2015—making the "impossible" possible—and he has remained there under Special Administrative Measures ever since.

For Babar Ahmad and Talha Ahsan—prosecuted by American authorities for running a website with no material connection to the US, other than one of its servers allegedly being located in Connecticut—the wheels of extradition were greased by assurances that they would not be labelled as "enemy combatants" and tried before the military commissions at Guantanamo Bay.

Instead of Guantanamo, Ahmad and Ahsan experienced the "gold standard" of the American civilian legal system; both pleaded guilty under threat of life sentences, and after two years of debilitating pre-trial solitary confinement. Only then, during their sentencing, did a judge acknowledge that neither had engaged in any "operational planning or operations that could fall under the term 'terrorism'".

The depiction of Guantanamo as a foreign and lawless "state of exception" from American justice obscures the abuses endemic in the American (in)justice system itself—which inspired the very blueprints from which Guantanamo was designed.

Techniques of terrorisation are shared between the Gitmo "exception" and the US prison norm: the uses of omnipresent surveillance, prolonged isolation, extreme light and temperature exposure, food deprivation, force-feeding, forced nudity, sexual violence, beatings and chemical weaponry (tear gas, pepper spray) to subjugate and control.

Mirroring the sadisms meted out by the so-called "bad apple" guards at Abu Ghraib, prisoners in the toxic tree of the US carceral system have been water-tortured, chained to toilets, confined in faeces-encrusted cells, brutalised by dogs, strapped into restraint chairs and left covered in their own waste for days or even weeks at a time, paraded naked on dog leashes, and locked in scalding showers, in some cases slowly burning to death.

One significant distinction between US prisons and their offshore counterparts, however, is in their economic efficiency. It is more than 40 times more expensive to maintain prisoners at Guantanamo Bay, as pointed out by ostensibly progressive proponents of transferring the detainees to mainland facilities. Same great "security," for a fraction of the price—and the reputational stain. You won't believe it's not Gitmo!

The insistence that Guantanamo is an un-American aberration persists, even as "Little Gitmos" and "Gitmo Norths" have proliferated on American soil. For example, there is New York City's Metropolitan Correctional Centre, where some of Assange's predecessors in the UK-to-US imprisonment pipeline were held under suffocating SAMs while awaiting trial. (It is currently closed for repairs following Jeffrey Epstein's suicide in custody.)

Originally hailed as an exemplar of "humane" prison design, this hidden "Guantanamo in New York" managed to be even more oppressive than the original, according to a detainee with experience of both.

Yet under the perverse prison jurisprudence of American courts, cruelty is not unconstitutional unless it is "unusual"—the same principle that in earlier centuries applied to the treatment of the enslaved. "The masters and overseers have only to repeat their excessive punishments so frequently that they become 'usual,' and the [law] does not apply to them!" as 19th-century abolitionist William Goodell remarked.

When it comes to prisoners, American courts have held that facial burns, loss of sensation in extremities, severe headaches, severe stomach pains, severe dehydration, major joint dislocations, hallucinations and night terrors from solitary confinement, leg pains from being forced to stand naked in a cage for 10 hours, abrasions or bruises lasting for as long as three weeks, and being doused in urine and faeces by guards, among other things, do not count as "injuries" above the de minimis threshold.

Echoing the logic of the US government's "torture memos"—which maintained, contrary to international law, that torture isn't torture unless it causes "serious physical injury, such as organ failure, impairment of bodily function, or even death"—violence is simply defined out of legal existence.

Meanwhile, the 1996 Prison Litigation Reform Act has empowered judges to discard prisoners' complaints for a variety of technical "transgressions": for example, writing outside the lines, submitting handwritten forms because the prison photocopier was broken, sending too many documents in one envelope, and missing filing deadlines because the complainant was hospitalised, or prevented from accessing the proper paperwork while in solitary.

More treacherous than overt "legal black holes" are these legal grey holes: in which the ceremonial garb of the "rule of law" cloaks the law of naked rule. The extralegal "excesses" of Guantanamo detention and extraordinary rendition are (now) widely denounced, while the legalised violence of mass incarceration and extradition flourish largely unchecked.

And so, despite the prohibition in international law against relying on the assurances of known torturers, courts continue to greenlight extraditions to the US. For instance, in its 2012 decision in Babar Ahmad and Others v the UK, the European Court of Human Rights permitted the extraditions to proceed, citing the "imperatives of the fight against terrorism" and the US's supposedly "long history of respect of democracy, human rights and the rule of law".

What is this except a resurrection of international law's old colonial "standard of civilisation"—under which the self-anointed forces of civilisation self-authorised their ravages against the "uncivilised". "The inhuman act thus becomes actually humane," as US Army Captain Elbridge Colby put it, in his 1927 law journal article advising "how to fight savage tribes" (referring to the Syrians bombed by France, Indigenous nations genocided by the US, and various other peoples targeted by colonial atrocities).

WikiLeaks not only ripped the shroud of secrecy off America's modern-day crimes of empire—tortures, rapes, massacres. It also unmasked the coercive measures adopted by the US—bullying, bribery—to evade international legal accountability, even while claiming the right to criminalise others around the world. As under previous iterations of civilisational logic, "justice" is constructed as a one-way street.

The "civilisation" of violence is, in reality, the insulation of violence, sequestered behind physical, legal, political, technological and informational walls—such as "assurances".

For shattering these pretensions of innocence, Julian Assange has joined the ranks of those punished for breaching civilisation's taboos; those once condemned, as the eminent scholar Talal Asad writes, for "the familiar religious sins of heresy, blasphemy, and sacrilege or, in a secular world dominated by the modern nation-state, the crimes of treason and terrorism". Or, as in Assange's case, simply for the offence of revealing the truth.

© 2021 Al-Jazeera English
Azeezah Kanji

Azeezah Kanji

Azeezah Kanji is a legal scholar and writer based in Toronto. She is Director of Programming at Noor Cultural Centre, and a regular opinion contributor to the Toronto Star and other Canadian media on issues of race, law and national security.

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