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In his article "What Happened to Tocqueville's America?" author James Whitman claims, "In the early nineteenth century, America asserted its moral leadership in the world for the first time, and it did so with regard to criminal punishment. It is hard to look back on that era today without feeling sorrow. Nobody thinks of America as a moral leader any longer" (Whitman). While one may argue that there are multiple causes for this fall from grace, though Whitman continues his article by detailing the poor performance of the United States with regards to its penal system. Many of these same criticisms have been adopted when speaking of America's detention center in Guantanamo Bay, Cuba. Some might wonder what connection these two systems have, especially considering their geographical and demographic differences. Despite their differences the system of incarceration at Guantanamo Bay very closely mirrors the American prison system in multiple respects. In this paper I will first detail the similarities and differences between these two systems, then argue that the pervasiveness of the American imprisonment culture possesses several grave faults. I will also argue that in order to remedy these issues it is imperative that the bureaucracies controlling these systems acknowledge and accept these problems in order to facilitate a positive change.
The systems of imprisonment of both the United States criminal justice system and the Guantanamo Bay military base possess several important similarities. Both systems use mind games when attempting to extort confessions from both suspects and witnesses. These games typically produce false confessions, implicating innocent people. These systems also rely on false confessions from informants who produce fake stories and facts in order to better their own situation, whether to lessen their prison sentence or to convince interrogators to discontinue torture. The United States criminal justice system and the military base at Guantanamo Bay both also have a tendency to focus on the punishment of their inmates.
In the United States criminal justice system there are numerous types of coercion used by interrogators. In his article "False Confessions: Lies, Consequences, and Solutions," Richard Leo describes the various tactics employed by investigators in the United States to obtain confessions. These methods include tactics like inducing a sense of helplessness and reliance in the person being interrogated, bribing the suspect with a potentially lighter sentence, and convincing the person that they will be treated better if they cooperate (Leo). Clifford Zimmerman writes in great detail about the use of informants in convictions across the United States and describes the ways in which informants have led to wrongful convictions. One example Zimmerman gives is of the Ford Heights Four, where police groomed an informant and pumped him with enough information (and money) to convict four men in a murder. They were eventually released and the conduct of the officers and prosecutors in the case were revealed, but only after extensive litigation, private investigation, and valuable time being stolen from the accused (Zimmerman). The most notable way in which this system punishes its prisoners is through solitary confinement. America's "supermax" culture favors expansive prisons possessing a profusion of solitary confinement cells where prisoners considered a danger to others or who have broken prison policy are kept (Rhodes). The issue with these cells is that they mentally cripple those kept inside them. Solitary confinement has been proven to damage the mental wellness and social capabilities of those subjected to it, and those undergoing the experience in the American prison system are no different (Gawande).
These patterns of action can also be clearly seen at Guantanamo Bay. The methods used to obtain confessions there are far harsher, but the premise remains the same. Interrogation techniques such as waterboarding, the "frequent flier program," and extended interrogations are designed to convince detainees to confess to acts of terrorism (Kurnaz). Threats are not an uncommon occurrence, either. One detainee, Mohammad Jawad (who was a young boy when he was captured) confessed to throwing a grenade into a vehicle containing two soldiers after interrogators threatened to kill him and his family if he did not admit to the action (Wilber). Guantanamo Bay also relies heavily on informants. The vast majority of its prison population is comprised of men and boys who were sold to the United States for a bounty which advertised by fliers distributed throughout the country (Willet). These prisoners are continually punished throughout the term of their imprisonment with the harsh treatment imposed upon them by their captors. From the time they are captured until they are released they are forced to cope with harsh interrogations where they are told they are terrorists, starved, placed in solitary confinement, and generally abused (Kurnaz).
The differences between the two systems are much fewer. The main difference is that the Guantanamo Bay is allowed to function with far less legal restraint than the United States criminal justice system. When former President George Bush determined detainees would be kept at the base he made sure that as the plans were developed the military had full reign over the situation. In a secret memo to his staff, Bush determined that the United States was not obligated to treat those imprisoned on account of the war on terror according to the Geneva Conventions. As time continued the Bush administration also began to justify increasing the harshness of interrogation techniques (Margulies). While the military prison may have free reign with its prisoners, the prisons which function under the criminal justice system are at least considered to be constrained by the laws and Constitution of the United States based off of the formality that it was these laws that created the system. This prevents the prisons of the United States from being capable of torturing inmates during their sentences. It also keeps investigators from torturing confessions out of suspects and forces them to rely only on the mind games they have created.
Though the difference between Guantanamo Bay and the United States criminal justice system is important to note, one can observe an overarching theme between the two when studying their similarities. Together the similarities between the two comprise a pattern of cruel treatment towards prisoners. Though these programs were supposedly designed to eradicate the problems which created them ("War on Terror," "War on Drugs," etc.), they have failed in several respects (Rhodes). The United States has twenty-five percent of the world's prison population despite only possessing five percent of the world's population (Liptak). Increasing the number of people incarcerated has not quelled the amount of crime occurring in the United States. Also, incarcerating numerous men and boys who have been sold into United States custody has not turned the tide in the "War on Terror." The treatment of those imprisoned in both systems is deplorable. These men are forced to sit alone in cells as their minds slowly spiral out of control, starved for human contact and some semblance of normalcy outside of the cold machine of incarceration. By using informants and pitting prisoners against one another, the systems are fostering an environment encouraging lies and deceit-unhelpful tools to those attempting to uncover the truth. In using mind games to manipulate suspects and witnesses, interrogators are wasting their own time. Creating a suspect is not the same as catching the real criminal. While investigators are busying themselves by twisting a story to put away someone they think they can get convicted, the real killer or burglar or rapist is running free.
What should those at Guantanamo Bay and those a part of the criminal justice system do to cope with these issues? Fixing these problems requires a determined change of focus for both of these groups. For the United States criminal justice system change will require an increased focus on rehabilitation and providing prisoners with programs to help them successfully transition into the outside world. This would include educational and work programs designed to provide them with the opportunity to learn life and work skills. It would also be beneficial to provide them with counseling to help them deal with unresolved issues in their lives, or at least provide them with some means of expressing themselves-whether it be an art class or giving prisoners journals that they were allowed to keep private. This would allow inmates who are guilty of a crime to work through the actions of their past, potentially leading them to see the error of their ways and leading them to contemplate what changes are necessary in their lives. Also, using methods which place prisoners in control of what they create or write and allowing them to maintain control over these creations prevents them from falling into the state of learned helplessness that can occur when one is imprisoned (Mayerfeld).
At Guantanamo Bay it is necessary that those running the camp alter their focus to truly sorting out who does and who does not belong in the camp in a safe and humane manner. This will require radical changes not only in the manner in which interrogations are conducted, but the entire culture surrounding the detention at Guantanamo Bay. Instead of treating the detainees as guilty before proven innocent, the military needs to accept that both they and the detainees sold to them may have been taken advantage of by those trying to cash out on the bounties promised for members of al Qaeda and the Taliban. There is no shame in accepting the fact that they are functioning on limited intelligence and that it is difficult to work in an unfamiliar place with people who speak an entirely different language and have a completely different culture. Mistakes can occur and as difficult as it may be, it is not a sin to admit that. To deal with this problem the military needs to remain aggressive in its search for information on the ground. Once people are captured, however, the military should not torture anyone. As Arthur Emery explained in his presentation to POL S 401, a respectful approach can be far more effective. When the Federal Bureau of Investigation interrogated Abu Zubayda they established rapport with him. As the relationship between Zubayda and his interrogator grew, Zubayda was willing to provide information. Once the Central Intelligence Agency stepped in and started abusing him he shut down and stopped cooperating (Emery). The United States should see this and note how much more productive respectful interrogation can be. The military should refrain from putting the detainees in solitary confinement and let them socialize. Through their use of physical and psychological violence, it should be quite clear to the prisoners that the soldiers are capable of enforcing order. Therefore the soldiers do not need to feel threatened that there will be some sort of uprising, especially if the detainees are treated humanely.
There are numerous similarities between the systems controlling the United States criminal justice system. There are fewer differences. Observation of the patterns of action in place at these institutions draws out the conclusion that these systems possess several negative aspects requiring reform. These changes necessitate a change of focus in both systems. Should they alter their approach to the tasks at hand, both could improve both the interaction they have with those they imprisoned and the impact they have on society. Hopefully our society can learn the lessons offered by these two systems before it is too late. Should we choose to fulfill the opportunities presented by recognizing the need for improvement our nation has a bright future.