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national lawyers guildVolume 66Number 2Summer 2009Call for the rwandan Governmentto drop Charges againstprof. C. peter erlinderNathan GoettingCitizens United and thefetishism of the CorporationDavid GespassCrime and punishmentin private prisonsMatthew Mulchu.s. war Crimes: torture asofficial Bush administration policyAlan Clarketestimony on torture policy beforethe house subcommittee on theConstitution, Civil rights and Civilliberties, house Judiciary CommitteeMarjorie Cohnorganizing—with or without the NlrBHenry M. WillisBook review: The Assassinationof fred hamptonDavid Gespass65667095110115125

editor’s prefaceThis issue is bookended by a pair of short writings by Guild PresidentDavid Gespass. The first is his critique of the Supreme Court’s decision inCitizens United v. FEC, a case that has the power to permanently modifythe American political process and, frankly, is too momentous for this lawreview to ignore.In Citizens United the Court declared unconstitutional that part of theBipartisan Campaign Reform Act of 2002 (aka “McCain-Feingold”) whichbans corporate funding of radio and television campaign ads within 30 daysof a presidential primary and 60 days of the general election, thus openingthe floodgates for rich and powerful corporations to saturate popular mediawith endless amounts of thirty and sixty second campaign commercialsfor their favorite candidates. In “Citizens United and the Fetishism of theCorporation” David Gespass explains that the problem with the Court’sinterpretation of the First Amendment in this case is its failure to recognizeprecisely what corporations are and how their influence is felt in our politicalsystem. It is not so much corporations, themselves mere impersonal andabstract entities, the Court has empowered with its decision in this case asthe particular wealthy and connected individuals forming America’s rulingclass who own and control them.The Court contends that its opinion in Citizens United expands freedomof speech. Instead it imposes censorship. By allowing money to control thevolume of one’s political voice Citizens United enables the ruling class tospeak at decibel levels capable of rendering messages from its natural politicalopponents among the humbler classes, or anyone else for that matter, inau-______________________Continued on page 128National Lawyers Guild Review, formerly Guild Practitioner, is published quarterly by the NationalLawyers Guild, a non-profit institution, at 132 Nassau Street, # 922, New York NY 10038. ISSN 0017-5390.Periodicals postage paid at New York, NY and at additional mailing offices. Subscription rates are $75/yrfor libraries and institutions; $25/yr for lawyers; $10/yr for legal workers/law students; $5/yr for incarceratedpersons; add $5/yr for overseas; $6.50/single copy, and should be sent to: 132 Nassau Street, # 922,New York NY 10038. POSTMASTER: Send change of address to: National Lawyers Guild Review, 132Nassau Street, # 922, New York NY 10038. Address all editorial correspondence and law-related poems,criticisms, articles and essays to: Editor-in-Chief, National Lawyers Guild Review, 830 W. Maple, Adrian,MI 49221. Unsolicited manuscripts will not be returned unless accompanied by return postage. NationalLawyers Guild Review is indexed/abstracted in Westlaw, PAIS-Public Affairs Information Service, TheLeft Index, the Alternative Press Index and in A MATTER OF FACT.Editorial Board: Nathan Goetting, Editor-in-Chief; Robyn Goldberg, Managing Editor; Kathleen Johnson,Book Editor; Britney Berry, Alan Clarke, Marjorie Cohn, Riva Enteen, Peter Erlinder, David Gespass, AnnFagan Ginger, Kelly A. Johnson, Silvia Lopez, Denise R. Oliveira, Melissa J. Sachs, Brenna Sharp, DeborahWillis, Henry Willis, Lisa Wong, Lester Roy Zipris.The opinions expressed in the articles are those of the various authors, and each article is Copyright, 2010,by the author and by National Lawyers Guild Review.Advisory Panel: Elvia Arriola, Derrick Bell, John Brittain, Margaret Burnham, Erwin Chemerinsky, DavidCole, Barbara Dudley, Richard Falk, Lennox Hinds, Sylvia A. Law, Staughton Lynd, Manning Marable, RubenRemigio Ferro, Jitendra Sharma, Kenji Urata, Frank Valdes, Patricia Williams.

Nathan GoettingCall for theRwandan Governmentto Drop Charges AgainstProf. C. Peter ErlinderIn an obvious act of political repression, on May 28, 2010 past GuildPresident Prof. C. Peter Erlinder was arrested by the government of Rwanda,a long-troubled nation that in 1994 was ravaged by monstrous acts of ethnicgenocide by Hutus against Tutsis and dissenting fellow Hutus. Its currentpresident, Paul Kagame, a U.S.–trained soldier and leader of the RwandesePatriotic Front, a Tutsi-led guerrilla fighting force during the genocide thathas since come to dominate the nation’s government, has been accused byesteemed international groups such as Human Rights Watch of serious actsof illegal state violence, including the pre-trial murder of crime suspects. 3The U.S. State Department has criticized Kagame’s “strong presidency,” 4 aswell, acknowledging in its annual 2009 Human Rights Report that “securityforces arrested and detained persons arbitrarily and without due process.” 5Professor Erlinder is the attorney for Victoire Ingabire Umuhoza, a humanrights advocate and reformer who lived in The Netherlands during the genocideand is now competing for the presidency against Kagame. Ms. Umuhozahas been arrested for violating the “genocide ideology law,” a speech crimeadopted by the Rwandan parliament in 2008 that is being used as a pretext forsilencing government critics. For representing Ms. Umuhoza and challengingthe Rwandan government with his activism and in print, Mr. Erlinder, too,has been charged with violating this law. Internal Rwandan politics aside,the National Lawyers Guild opposes attempts by any nation to discouragefree and spirited political speech and believes that every person charged witha crime is entitled to a vigorous defense. That vigor should never be chilledby prosecuting attorneys merely for expressing themselves and working toensure that due process of law is afforded their clients. The time has cometo end this vicious and pathetic tactic, indelibly written in the handbook ofscared and bullying regimes. Our thoughts and, more importantly, our actionsare united in support for Prof. Erlinder.____________NOTES1. Press Release, Human Rights Watch, Rwanda: Police Killings Tarnish Rule of Law(July 24, 2007), at http://www.hrw.org/english/docs/2007/07/23/rwanda16455.htm.2. U.S. Bureau of Democracy, Human Rights, and Labor, 2009 Human Rights Report:Rwanda (Mar. 11, 2010), at http://www.state.gov/g/drl/rls/hrrpt/2009/af/135971.htm.3. Id.

David GespassCITIZENS UNITED AND THEFETISHISM OF THE CORPORATIONThe Supreme Court’s decision in Citizens United v. Federal ElectionCommission 1 is, like so many things, both a threat and an opportunity. It is athreat not just for the obvious reasons that are usually put forth by DemocraticParty functionaries and various liberals trying to raise money by opposingthe decision, but because of its insidious and usually ignored assumptionsabout corporations. Ironically, it is an opportunity for very much the samereasons and because it has been so widely criticized and deplored. A clearunderstanding of exactly what Citizens United stands for allows for real educationacross the whole population. This is a chance for genuine progressivesto reach beyond their usual base and build a movement that goes beyondthe usual suspects and aims at the foundations of economic (and, therefore,political) power in the United States.The usual criticism of the decision is that it gives “corporations” too greatan ability to influence the political process. Of course, by “corporations,”people mean the huge transnational corporations that enjoy perpetual existenceand control billions of dollars. The small, family-owned corporationsdo not really count in the political calculus that the critics of Citizens Unitedare concerned with. The fact is, however, that the decision does not give“corporations” such disproportionate power. It gives people, people whoalready have disproportionate power because of their wealth, that power.That fact is masked by the fetishism of the corporation.What is a fetish? It is an inanimate object that is believed by its worshipersto be imbued with magical qualities. What then is a corporation? Well, let’sstart with what it is not. A corporation is not a living, breathing organism. Ithas no consciousness, it cannot think, feel or even act of its own volition. Itis completely artificial. It is not born or hatched. It has no mother or father.It comes into existence because a few pieces of paper called articles of incorporationare filed with a probate judge somewhere..Yet the Supreme Court has imbued this inanimate invention with humanpowers. So far as the Court is concerned, corporations are not only able tospeak, but have the right to do so. But when corporations “speak,” it is notthe corporation that forms the words but the people who control it. Karl___________________David Gespass practices law in Birmingham, Alabama and is president of the NationalLawyers Guild. He can be reached at ThePasss@aol.com.

citizens united and the fetishism of the corporation67Marx spoke of the fetishism of commodities, explaining that commoditiesappear to have intrinsic value just because they are traded, bought and sold.But whatever value any commodity has that determines its price is the resultof the human labor that went into forming it. A piece of furniture does notemerge full blown from the trunk of a tree. Rather, that trunk is transformedinto a chair or desk through human intervention.Similarly, corporations act only through their shareholders, officers,boards and employees. Most importantly, when a corporation exercises itspresumed “right” to speak, the speech does not reflect the views of the corporation,because the corporation is no more capable of having an opinionthan are the desks and chairs in its office. The opinions expressed are thoseof the people who control and manage the corporation.

68 national lawyers guild reviewAnd who are those people? Presumably, the corporation is governed by itsshareholders, but with each share—not each individual shareholder—entitledto a vote. Those who hold the largest blocs of shares control the “actions” ofthe corporation. In practice, transnational corporations are not controlled bypeople who own a majority of shares, but by people who own enough sharesto have controlling interests. Many ordinary members of the working classand petty bourgeoisie own small numbers of shares through 401(k)’s, IRA’s,mutual funds and the like, but their views and opinions do not control thecorporations. And if those who own the controlling interests choose to havea corporation “speak” to an issue, it makes no difference if the thousands, ifnot millions, of small shareholders disagree.The result is that people with enough money to control corporations can,by virtue of Citizens United, greatly expand their already-outsize influence byusing the investments of these many small shareholders to give voice to the

citizens united and the fetishism of the corporation69corporations they run. There is an old saying that the way one makes moneyis with other people’s time and other people’s money. What Citizens Unitedhas decided is that the way one exercises political influence is also with otherpeople’s money, invested in shares of transnational corporations.Thus, in the end, corporations do not speak, the people who control themdo. But we labor under the misapprehension that corporations somehowhave the capacity to act independently of the people who control them. Thatpresumption —that corporations, like fetishes, are endowed with the magicalability to live and act—is at the heart of why Citizens United makes no sense.After all, if corporations were sentient beings, their right to speak would notonly be sensible, but a fundamental democratic right.So, let us separate ourselves from the liberal criticism that we are giving“corporations” too much power by allowing them unlimited free speechrights. We are giving them no power whatsoever. Rather, we are increasingmanyfold the power and influence of the richest people in the country,who are now able to use our money, invested in corporations, to advocatefor their interests. If we fail to understand this, we have already concededfar too much.________________notes1. Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876 (2010). Does your library haveNational Lawyers Guild Review?Over two hundred law school and county law libraries do. Ifyours does not, take this copy with you and request that your librarysubscribe to National Lawyers Guild Review, now in its 70th year.Issued quarterly. Library subscription rate $75.00 per year, ISSN0017-5390. You may order through the library’s subscriptionagent or directly from: National Lawyers Guild Review,132 Nassau Street, Room 922, New York NY 10038.

Matthew MulchCrime and Punishmentin Private PrisonsI. IntroductionThis article attempts to analyze the relationship between prison privatizationand society’s understanding of punishment and criminal justice theory.Simply put, how are our traditional notions of deterrence, retribution, rehabilitation,incarceration, and restorative justice served when private actors,rather than public institutions, are meting out punishment?Prison privatization has received a great deal of coverage and analysis overthe past decade. The majority of this analysis has focused on the budgetaryquestions. Can privatized prisons help streamline an extremely expensiveindustry? Will competition result in cost cutting, skimping, and dangerousconditions for inmates and prison personnel? And, of course, will privatizationin this sector reduce costs in the long run? Or is it merely a short-termsolution?These issues have been addressed numerous times in a variety of ways.My goal here is to provide a more theoretical analysis of prison privatization.Cost and economic variables will play a role in the analysis; however,the primary goal of this article is to discuss how privatization shapes theconception of the criminal justice system through the eyes of policy makers,inmates, private correctional providers, and society itself. Moreover, thisarticle weighs the economic interests of private prison corporations againstthe effects of this industry on society as a whole. Economic theory and thebottom line will continue to drive the prison privatization debate. Yet, in asociety with a growing number of inmates housed in private facilities it isimportant to ask how our basic conceptions of criminal justice and punishmentare changing with the introduction of new private actors.II. The history and contemporary understandingof prison privatizationFirst, it is crucial to note that the distinctions between a public, government-runinstitution and a private facility are not always clear-cut. 1 Accordingto University of Colorado Professor Ahmed White:To the extent that the state is not ubiquitous, and that the prison is not entirely__________________________Matthew Robert Mulch is a graduate of the University of Denver, Sturm College ofLaw. He is a deputy public defender in Grand Junction, Colorado.

crime and punishment in private prisons71hermetic, some aspects of every prison are always private. From the labor of itsemployees, to provisions for inmates’ subsistence needs, to the land and capitalthat comprise the prison’s physical structure, each exemplifies every prison’sendemically, if partially, private character. In this sense, it is only possible toimagine a fully public prison either in a thoroughly totalitarian society or whenthe prison itself is (and this would negate its quality as a prison) an entirelyself-contained society. 2For the purposes of this article the use of the term privatization willprimarily focus on institutions where principal control rests with a privatecorporation through ownership or leasehold.Prison privatization is often mistakenly viewed as a modern concept,derived from laissez-faire economic theory first espoused towards the endof the 19th century. Interestingly, however, the first privatized prisons 3 predatelaissez-faire theory. 4 According to the Department of Justice, “Duringthe 18th century, the modern prison emerged . . . [and] the use of privatelyoperated facilities became popular.” 5 “Popular” is, of course, a relativeterm, and it should be noted that during this time few institutions resembledmodern prisons or jails. 6 During this period, government officials wouldoften appoint a head jailer in a particular locality. 7 While the jailer held aquasi-public position, it was not uncommon for him to sell the labor of hisinmates. 8 Moreover, jailers often accepted payment in return for preferentialtreatment. 9 Professor White has likened these post-colonial penitentiariesto European houses of corrections: private institutions that acted as jails,poorhouses, and factories. 10After the Civil War, southern prison populations soared, 11 and prison administratorsbegan the institutionalized practice of outsourcing inmate laborin a system called “convict leasing.” 12 According to a Justice Departmentreport “[b]y 1885,states had contracts with private enterprises to lease outprison labor.” 13 These contracts took a variety of forms:At some, companies outside the prison provided raw materials that were refinedin prison workshops and later sold by private companies. At others, prisonsleased their inmates out to private farms or other businesses if they could notproduce salable items within the prison. In a number of states, contractors paidthe prison a fee or a percentage of the profits for the right to employ convicts.. . . Even when prisons were not operated entirely by private entrepreneurs,inmates were used as a cheap source of labor. Prisoners often worked on farms,railroads, and mines, in addition to other public work programs .14Not surprisingly, convict leasing programs were rife with corruption. 15Many of the lessors were government officials. 16 Labor contracts were raucouslydisputed, and the states were often underpaid. 17 Nevertheless, for atime, the leasing system proved lucrative for those involved. 18

72 national lawyers guild reviewAt this time, the criminal justice system in the South heavily disfavoredblacks. 19 According to contemporary civil rights journalist Ida Wells, in 1892,ninety percent of the convicts in Georgia were black, with the huge majorityof them serving disproportionately long sentences. 20Several factors led to the demise of the convict leasing system nearthe end of the 19th century. 21 First, the success of the system created anenvironment where government officials and entrepreneurs expected tosee profitable returns. 22 Prisons, however, require enormous overhead andmaintenance fees. 23 And even the most efficient of the prison administratorsfound themselves struggling to pay for their enterprise and basic inmateamenities. 24 Moreover, the work performed by the leased inmates was notoriouslydangerous. 25 The loss of a life or a limb was a cost borne by bothinmates and administrators. 26Second, opponents of the convict leasing system placed pressure on statelegislatures and public officials. 27 Farmers, manufacturers, and labor groupsattacked the system and the anomalies that it created upon open competition.28 Reformers and religious groups opposed the leasing system on moralgrounds. 29 And newspaper editors and journalists spent decades attackingthe horrible prison conditions. 30 State legislatures eventually buckled and“began investigating alleged incidents of mismanagement and cruelty withinprivatized institutions, resulting in modifications to the leasing system.” 31Third, federal officials began to dismantle the convict leasing system. 32“An executive order signed by President Theodore Roosevelt in 1905 prohibitedthe use of convict labor on federal projects.” 33 Twenty-five yearslater, Congress enacted the Hawes-Cooper Convict Labor Act of 1929,which allowed states to prohibit the importation of convict-manufactured,interstate goods. 34Eventually, by the 1920s, the practice of convict leasing in state-runinstitutions came to an end. 35 After years of statutory reform and optimisticrhetoric, southern states began to move away from the practice. 36 And in anuncertain and piecemeal manner “[t]he operations and administrative functionsin correctional facilities were delegated to governmental agencies,authorized by statute, staffed by government employees, and funded solelyby the government.” 37 During this time, private organizations continued toplay a role within correctional systems, but their involvement was limitedto ancillary services 38 and secondary facilities. 39In the 1970s, government officials again revisited their relationship withthe private sector. 40 The first wave of privatization occurred within the juvenilecriminal justice system. 41 In 1974, Congress passed the Juvenile and

crime and punishment in private prisons73Delinquency Prevention Act. 42 One of the goals of the Act was “to developand conduct effective programs to prevent delinquency, to divert juveniles[sic] from the traditional juvenile justice system and to provide criticallyneeded alternatives to institutionalization.” 43 According to Professors PatrickBayer and David Pozen, this act created an incentive for private entrepreneursand corporations, and “privatization emerged as the primary mechanism fordeinstitutionalization.” 44 Two years later in 1976, RCA Services, a divisionof the Radio Corporation of America, “assumed control of WeaversvilleIntensive Treatment Unit located in North Hampton, Pennsylvania.” 45 Althoughthe Weaversville facility was a juvenile center, it is widely regardedas the first private institution for serious offenders in the modern era. 46 Thesecond institution arrived in 1982, when the Eckerd Corporation, a drugmanufacturer and drug store chain, took over control of the OkeechobeeSchool for Boys in Florida. 47In the mid 1980s the federal government began contracting for the privatedetainment of adult inmates. 48 In 1984, the federal Bureau of Prisons signeda three-year deal with Eclectic Communications, Inc., whereby Eclecticwould house sixty 18- to 26-year-old offenders at Hidden Valley Ranch inLa Honda, California. 49 At the same time, the United States Immigration andNaturalization Service (INS) began contracting with private organizationsto house undocumented non-citizens. 50 “[B]y the end of 1988, the numberof private INS detention facilities had grown to seven, housing roughly 800of the 2,700 aliens in INS custody.” 51The first private state institutions arrived around this time, when theCorrections Corporation of America (CCA) contracted in 1984 for the managementof the Hamilton County jail in Tennessee 52 and in 1985 for the fulloperation of the Bay County jail in Florida. 53 However, the first privatelyowned and operated prison did not arrive until early 1985, when UnitedStates Corrections Corporation opened the Marion Adjustment Center inKentucky, a minimum security prison for inmates nearing parole. 54 Sincethat time, private facilities have continued to multiply, and now roughly120,000 inmates are held in private state or federal facilities. 55This modern shift from public penitentiaries to private facilities did nothappen by accident. The United States has the highest per capita prisonpopulation in the world caused by a boom in incarceration rates throughthe 1970s and 1980s 56 due in large part to the War on Drugs 57 and to longerprison sentences. 58 President Ronald Reagan’s Commission on Privatizationfound that the number of federal and state inmates increased approximately74 percent from 1979 to 1986. 59 From 1970 to 2007, the number of inmatesswelled from 196,000 to 1.5 million, an increase of almost 800 percent. 60

74 national lawyers guild reviewAccording to National Magazine Award-winning author Eric Schlosser,“Since 1980 spending on corrections at the local, state, and federal levelshas increased about fivefold.” 61Statistics show a disproportionate effect upon black and Latino malepopulations. 62 According to projections “[i]f current trends continue, it meansthat a black male in the United States would have about a 1-in-3 chance ofgoing to prison during his lifetime. For a Hispanic male, it’s 1-in-6; for awhite male, 1-in-17.” 63 Though some commentators argue that this racialdisparity is the result of completely legitimate factors, 64 the number of minorityprisoners is increasing. 65 Moreover, the total prison population withinthe United States is escalating with some state incarceration rates growingat an average of 1.9 percent per year from 2000 to 2005, and 2.8 percentbetween 2005 and 2006. 66These increases have caused state and federal agencies to turn to theprivate sector for long-term and stopgap solutions. 67Conflicting interests have created a logjam of sorts, whereby lawmakershave willfully funded the front end of tough on crime bills without consideringthe budgetary concerns caused by new prisoners and the new prisonsneeded to house them. 68 Due in large part to financial costs, from 2000 to2006 “the number of Federal prisoners housed in private facilities increased79 percent; State prisoners, by 15 percent.” 69 Some commentators have alsoargued that the shift has been precipitated by desires to improve innovation,quality, accountability, access to expertise, efficiency, and flexibility. 70These motivations, accurate or not, are clearly subordinate to budgets andbottom lines. 71The private prison industry is still booming. According to a report by theReason Public Policy Institute “[c]orrections is one of the fastest-growingstate budget items. In the last 15 years, state spending on corrections grewmore than 350 percent—compared to 250 percent growth for spending onpublic welfare and 140 percent growth for spending on education.” 72 Withinthis environment, an oligopoly has risen, dominated by CCA and WackenhutCorrections Corporation, now known as the GEO Group. 73 Accordingto a 1997 Bureau of Justice Statistics survey, within the United States, tenprivate companies were in charge of at least one state facility. 74 However,of the sixty-five private state facilities identified in the survey, CCA orWackenhut managed forty-nine. 75 And in total, the same two companieswere under government contracts to manage more than 100 prison facilities, 76accounting for seventy-five percent of all private prison beds. 77 To put thisin perspective, in 2001 there were only twenty-six total private facilitiesoutside of the United States. 78 The current environment is so promising, in

crime and punishment in private prisons75fact, that CCA has been building prisons on spec, with no contract to buildand no prisoners to house. 79 According to an AFSCME report, these specprisons are often sold as economic development projects for the communitiesin which they are built. 80 Under these conditions, the contract biddingprocess is constrained, and prices are often inflated. 81 In spec prisons “[t]heinmates are usually from one or more jurisdictions—often not from the hostjurisdiction. The purchasers of spec bed space are typically governments thatare desperate to relieve overcrowding. When overcrowding reaches a crisisstate, a government will often enter into a sole-source emergency contract ata high per diem rate, generating healthy profits for [the company].” 82It is important to note that crime rates and incarceration rates do not necessarilycorrelate. In other words, a decrease in crime does not necessarily meanthat incarceration rates have recently risen, or that they will decrease in thenear future. 83 Both of these rates are the result of numerous causal factors.And while incarceration rates are shaped by lawbreakers, they are also theresult of agency and legislative choices. According to the Federal Bureau ofInvestigation’s Uniform Crime Reporting Program, property crime offenseshave decreased steadily for the past five years. 84 And while violent crimeoffenses have fluctuated recently, the FBI reports that the violent crime rateshave generally remained steady for the past five years, about sixty percentlower than in the early 1990s. 85It is always a bad idea to predict future happenings from current trends,particularly in the criminal justice system. However, it seems clear from theforegoing that (1) crime rates have remained somewhat steady, and probablywill not drastically increase in the near future, and (2) incarceration rates willcontinue to grow. In this sort of environment, where demand is not lessening,it seems logical to conclude that private prison companies will continue toplay a major role within our criminal justice system. There can be no doubtthat private prison companies are in business to generate profits. It remainsto be seen whether their existence is changing our conception of criminalpunishment.III. Criminal punishment theoryThroughout history social scientists have posited numerous theorieson the underlying purpose of criminal punishment. 86 Historically, criminalpunishment has been rationalized under two general theories: utilitariantheory and retributive theory. 87 Simply put “[r]etributive rationales are essentiallybackward-looking, as they seek to justify punishment on the basisof the offender’s behavior in the past. Utilitarian rationales are essentiallyforward-looking, as they seek to justify punishment on the basis of the goodconsequences it is expected to produce in the future.” 88 These two general

76 national lawyers guild reviewtheories have then led to the development of more specific rationales, primarily:deterrence, retribution, rehabilitation, incarceration, and restorativejustice. 89 Commentators have noted that these specific rationales oftenconflict with one another for a variety of reasons. 90 For instance a theory ofretribution, where punishment is based on the harm caused by crimes, rarelycoincides with a theory of rehabilitation. Practically speaking, if a defendantis simply receiving his “just deserts” for a crime, there is no reason to providetreatment for any mental or emotional disabilities that could have precipitatedthe crime. Additionally, on theoretical grounds a hard-line approachto retribution might preclude the possibility of rehabilitation. As the harmscommitted by certain crimes are simply unimaginable, it stands to reasonthat a punishment based on retributive theory might not leave any room forrehabilitation programs. Anything less than maximum punishment could beseen as forgiveness or mercy. The theories of criminal punishment are manyand will continue to evolve. 91A host of causal factors have shifted emphasis of punishment theoryfrom retribution during its historical genesis, 92 to rehabilitation in the mid1970s, 93 and then back to the idea of just deserts over the past decade. 94 Inthis manner, as social perspectives change over time, so does criminal theoryand justifications for punishment. 95Lastly, it must be noted that communities are not homogenous. 96“[C]ommunities differ from one another in regard to the kinds of behavior thatshould receive criminal sanction. The correspondence between the criminallaw and what is actually condemned may vary considerably from one communityto another.” 97 Additionally, communities by common definition reflecta range of thoughts, ideas, and backgrounds. And it seems not unreasonableto infer that the justification for punishment differs between individualswithin a specific community. For instance, in an emotional domestic crime,a prosecutor might seek punishment under a retributive approach. Contrarily,the victim facing a relentless attacker might be concerned primarily withincapacitation, while the defendant’s family seeks rehabilitation.If there are common understandings to criminal punishment, these understandingsrevolve around the idea of using objective, governmental actors 98 toconfront morally culpable behavior. 99 It stands to reason then that privatizedprisons necessarily raise questions about the current state of criminal justiceand punishment.Corporations exist to make money. To see a return in a growing market, aprofitable prison corporation must either trim inefficiencies, increase inmatenumbers, or do both. In other words, the privatized prison industry has incen-

crime and punishment in private prisons77tives to increase incarceration rates, the length of sentences, worker turnover,and even recidivism rates, all while decreasing expenses. These goals fly inthe face of rational public policy—yet many of this nation’s convicted willspend time in a for-profit prison.In practice, the federal and state prison systems are bureaucratic behemoths,creating hundreds of thousands of jobs and requiring astronomicalbudgets. 100 Yet in criminal law theory, incarceration is often an afterthought.And by applying criminal theory only during the arrest, indictment, andsentencing phases, we are arguably degrading one of the most importantelements of a criminal justice theory: trust. 101 Without consistency and theequal application of law, trust breaks down. And without trust, the morallegitimacy of criminal law and punishment declines. It is therefore imperativethat we ask whether incentives within the private prison industry areharming our notions of criminal justice.The specific rationales for criminal punishment are discussed in turn.(A) DeterrenceAccording to the English jurist Jeremy Bentham, one of the principalrules of punishment is “that the quantity of punishment must not be less . .. than what is sufficient to outweigh the profit of the offence.” 102 To Bentham,it is not the act of punishment itself that deters, but rather the idea ofpunishment that acts upon the mind. 103 In its essence, deterrence is a theoryof criminal punishment based upon the idea that members of society arerational actors capable of making future decisions based on past knowledgeand past stimuli.Modern jurists typically divide deterrence into two subsets: general deterrenceand specific deterrence. 104 General deterrence refers to the idea thatmembers of the public can be deterred from committed crimes by witnessingthe condemnation and punishment of criminals. 105 The public need not actuallywitness the punishment but must be aware of its magnitude. 106Specific deterrence, on the other hand, is the theory that punishment iscapable of deterring criminal behavior within the individual. 107 And whilerecidivism studies are not perfect, 108 they do portray the number of past offenderswho return to the corrections system.A privatized, for-profit prison corporation has no incentive to deter criminalbehavior or support legislation that focuses on deterrence. Accordingto Austin and Coventry, “Firms driven by the profit motive could adverselyinfluence prison population size by lobbying for longer sentences and strictersentencing guidelines.” 109 According to a recent story, CCA and Wacken-

78 national lawyers guild reviewhut were both supporters of the American Legislative Exchange Council,an organization that develops form codes for state legislators. 110 And bothcorporations were on the organization’s Criminal Justice Task Force when itdrafted Pennsylvania’s tough on crime bill and three strikes bill. 111 Anotherreport indicates that private prison corporations paid $1.1 million to Texaslobbyists in 2007, three times more than in 2005. 112It seems axiomatic, in fact, that a prison corporation would have limitedinterest in an effective criminal deterrent scheme. According to Eric Schlosser“[t]he private-prison industry usually charges its customers a daily rate foreach inmate; the success or failure of a private prison is determined by thenumber of ‘man-days’ it can generate.” 113 Effective general deterrence leadsto fewer prisoners. And fewer prisoners lead to lower profits. Now this isnot to say that a corporation would be opposed to all legislation based ondeterrence. Just as criminal punishment is justified by the myriad theoriesof criminal law, so too is legislation. A bill might be justified and sponsoredfor its deterrent effect. Yet, as evidenced by recent three-strike bills, rhetoricdoes not always conform to reality, in that the practical effects of legislationsometimes do not correlate with the proposed rationales. 114Moreover, tough on crime bills illustrate a second problem. Schemesgeared towards reducing recidivism rates by deterring offenders with toughprison sentences, can have the secondary effect of increasing prison termsoverall. 115 In essence then, by trying to address specific deterrence, a statemight actually increase total “man-days” by escalating penalties for theconvicted.All told, successful corporations are those that can maximize utility inthe long term. 116 A rational prison corporation, by definition, would not andshould not seek to reduce total inmate numbers in the majority of circumstances.And yet of all the rationales for criminal punishment, deterrence seemsto be the most laudable. Fewer crimes and fewer incarcerated individualsare goals that virtually everyone can agree are worth working towards.(B) RetributionOften associated with 18th century German philosopher ImmanuelKant, 117 retributive theory states that punishment is something a criminaldeserves and, in fact, is morally required. 118 Under this doctrine, rules areestablished for order and the collective good. 119 And when these rules areviolated, it is necessary for society to address the perpetrator, the victim, andthe crime in an authoritative manner. 120Many jurists have argued that the rationale behind retributive theory isnot entirely clear, as renowned legal theorist H.L.A.Hart explains:

crime and punishment in private prisons79To some critics it appears to be a mysterious piece of moral alchemy inwhich the combination of the two evils of moral wickedness and sufferingare transmuted into good; to others the theory seems to be the abandonmentof any serious attempt to provide a moral justification for punishment. Othercritics still regard it as a primitive confusion of the principles of punishment.. . . In its most interesting form modern retributive theory has shiftedthe emphasis, from the alleged justice or intrinsic goodness of the return ofsuffering for moral evil done, to the value of the authoritative expression, inthe form of punishment, of moral condemnation for the moral wickednessinvolved in the offence. 121Some commentators have argued that retributive theory is little more thanvengeance. 122 Regardless, retribution is, by all accounts difficult to analyze inempirical terms. 123 Professor Banks argues that retribution is akin to censureas the punishment carries expressive or communicative themes. 124 She goeson to explain that “[t]his conception recognizes punishment as comprisingnot merely harsh treatment, but also elements of condemnation, denunciation,and censure.” 125Accordingly, while retributive theory cannot be evaluated in terms ofstatistics and incentives, privatization raises questions as to the commonsense understanding of social condemnation. In response, commentatorshave noted that private prisons are objectionable on moral and normativegrounds. 126 Professor Dan Markel has argued that this normative oppositioncan be expressed under three different theories. 127 He states:First, one might view the use of private prisons as expressing a message of thestate’s indifference to the offense. . . . [Second] using private prisons may appearto commodify inmates in a manner antithetical to a state’s duty to respect thedignity of its citizens . . . [Third] the use of private prisons permits the “stateto offload custodial responsibility for convicted offenders to institutions onlyderivatively committed to the values and obligations of the ethical liberal polity,thus itself constituting a violation of those values and obligations.” 128The second theory highlights the idea that, in practice, inmates are oftenconsidered a resource. 129 While not always acknowledged, crime is abouteconomics and value. 130 And simply put, certain individuals might be worthmore behind prison bars than in the workforce. For better or worse, inmatescreate jobs and new prisons are often sold on the promise of revitalizingcommunities. 131 Given the option, most communities would trade an illicitworkforce for the economic stimuli provided by a new prison.132Markel’s first and third theories 133 directly address the idea of responsibility.Some critics have suggested that the state—as legislator, investigator,and adjudicator—also has the duty to enforce its decisions. State responsi-

80 national lawyers guild reviewbility demonstrates an element of fairness with respect to the inmate. Moreimportantly, public penitentiaries demonstrate state commitment to criminallaw and social accountability. Retribution is based on the idea that actors areresponsible for their actions. 134 However, a state that relies on private corporationsto deliver its retributive messages faces a difficult sell. A state thatprivatizes its facilities compromises its retributive message. Simply put—itappears hypocritical when a state cannot live up to its own responsibilities,and yet attempts to hold individuals responsible for their actions.(C) RehabilitationIn 1949, Justice Hugo Black stated “[r]etribution is no longer the dominantobjective of the criminal law. Reformation and rehabilitation of offendershave become important goals of criminal jurisprudence.” 135 Rehabilitationis a complicated mix of practice and theory. 136 In practice, rehabilitative programsare designed to remedy past problems and addictions and to provideassistance and educational tools for future success. In theory, the doctrineof rehabilitation looks past the immediate choices of criminal behavior, andattempts to question patterns of behavior within individuals, families, andlarger social networks. However, the doctrine of rehabilitation has beenattacked for providing more questions than answers. Since the mid 1970s,the doctrine of rehabilitation has been largely dormant after several commentatorscame to the conclusion that most rehabilitative programs failedto provide adequate solutions. 137In theory rehabilitation is clearly a worthwhile goal. Criminologistshave proposed never-ending lists of the causal factors that lead to crime. 138And a penal system that fails to address causal factors within the individualand within society, will inevitably fail to prevent crime in the long-term.The incentive for the state then, is to provide effective programs for bothdefendants and for the communities in which they live. In many ways, thetheory of rehabilitation lives on the other side of the deterrence coin: providingcarrots, rather than sticks. It is not entirely clear why the private industrywould be interested in reforming and rehabilitating inmates, or supportingalternative sentencing schemes.According to political scientist Katri Sieberg, “To make a profit, normalbusinesses need to attract customers. This is done through advertising andother marketing devices. To make a profit, a prison needs a steady or increasingflow of prisoners. Thus, the incentives exist for private prisons tolobby for increased prison time, rather than alternative sentences, to punishcrimes.” 139 A recent Department of Justice report supports this argument,stating “arguably, it is in the operator’s financial interests to encouragelengthier sentences for inmates to keep bed spaces filled.” 140

crime and punishment in private prisons81Rehabilitation is a goal geared towards the long-term. Effective rehabilitationprograms are costly and often require years of trial and error. 141 Aswould be expected, the private prison industry has cut many rehabilitativeprograms in order to save money. 142 Rehabilitative programs, however, haveboth direct and indirect effects. 143 Studies have shown that in the absence ofrehabilitative programs, inmates receive counseling of another, more sinisterkind from their fellow inmates. 144 According to Sieberg “In this type of acommunity of criminals, with the wrong type of career reinforcement, thereis an understandable increase in recidivism. . . . [B]y eliminating those programsthat are intended to adjust a criminal to an acceptable societal role, weachieve false economic savings.” 145 In addition, Sieberg argues that alternativesentencing schemes would actually reduce government spending, by nearlyeliminating housing and funding costs. 146It is difficult to see how effective rehabilitation schemes would benefitthe prison industry. If we view inmates as resources or commodities, it simplydoes not stand to reason that a corporation would have any incentive togive inmates the tools necessary to escape the prison cycle. Such acts arecontrary to the very idea of capitalism, as they would result in the depletionof resources and increased operating costs.(D) IncarcerationIncarceration serves as both a theory of criminal punishment, and a deviceto implement the theories of deterrence, rehabilitation and retribution. 147As a theory of criminal justice, incarceration serves the public by removingdangerous individuals from the community. Unfortunately, not all criminalsare capable of effective rehabilitation or deterrence. Therefore, incarcerationaims at “isolating dangerous and recidivist criminals from the law-abidingpublic and thereby enhancing public safety.” 148 However, communities donot begin and end at the prison house gates. In light of this, effective incarcerationrequires the removal of dangerous threats from the public at largeand the reduction of similar dangers from within the prison community.“A leading criticism of prison contractors is that they maximize profitsthrough dangerous cuts in staff levels, staff training and staff pay.” 149 AsSieberg explains, the privatized prison industry can hire, move, and terminateworkers quickly, as the companies are not unionized. 150 Not surprisingly, anunderpaid and undertrained prison force can be dangerous for those on theinside as well as the outside.According to Austin and Coventry’s Department of Justice report, “A totalof 45 escapes occurred at 14 private facilities between January 1, 1997, andDecember 31, 1997. The Rate of escapes per 1,000 inmates for the sixty-

82 national lawyers guild reviewtwo private facilities [was] 1.06 percent.” 151 Similarly, a 1999 report by theFederal Bureau of Prisons noted that privately operated facilities used morestaff, had a higher turnover rate, and had “much higher escape rates fromsecure institutions” than the public federal system did. 152 In one of the mostegregious displays of ineffective incarceration, the Northeast Ohio CorrectionCenter in Youngstown, Ohio—a spec CCA prison—witnessed six escapesin its first fifteen months of operation. 153 Five of the six escapees were convictedmurderers, and all of them were maximum-security inmates. 154 Austinand Coventry noted that operational flaws such as escapes “were linked toinexperienced staff, [and] inadequate training.” 155Ineffective incarceration also presents dangers to prison guards, administratorsand inmates. 156 Over the past decade there have been numerous reports detailingviolence and sub-standard prison conditions within the private sector:In 2007, the ACLU filed suit against the Department of HomelandSecurity and CCA, alleging that a federal immigration facility near SanDiego was housing three inmates in two bed cells. 157In Idaho, a recent report indicated that the State’s only privately ownedprison had an inmate violence rate three times higher than that of thepublic facilities. 158A report by the Texas Youth Commission from September 26 to October2, 2007 listed 21 major operational and security issues at the Coke CountyJuvenile Justice Center in Bronte, Texas. 159 The report detailed “flagrant”violations such as double-bunking youths, racial segregation, and aninmate work schedule for hours between 10:00 p.m. and 4:30 a.m. 160In addition to the six escapes, the Northeast Ohio Correction Centersaw seventeen stabbings, numerous assaults on prison personnel, andtwo murders in under a year and a half of operation. 161 Ultimately, thetown of Youngstown filed a successful suit on behalf of the inmatesalleging that the inmates were in danger due to the company’s housingpractices. 162And in 2000, Wackenhut relinquished its contract for a juvenile center inJena, Louisiana after the Department of Justice filed a suit alleging physicaland verbal abuse, and the inappropriate use of pepper spray. 163While shocking, these stories do not appear to be aberrations. Accordingto the Department of Justice, in total there are greater numbers of inmateon-inmateassaults in private prisons (35.1 percent) as compared to publicfacilities (25.4 percent). 164While we often think of incarceration as an end product in criminal lawtheory, for most individuals, incarceration is only temporary. And when a

crime and punishment in private prisons83corporation has incentives to skimp on personnel, infrastructure, and training,it necessarily raises questions as to the effectiveness of criminal isolationand may increase the likelihood of recidivism. Prisons will never be “safe”places. But they also need not be excessively dangerous or uninhabitable.(E) Restorative justiceReferring to the 2008 recession, the President and Chief Operations Officerof Corrections Corporation stated that “[t]here is going to be a largeropportunity for us in the future.” 165 Just as with rehabilitation, one mustquestion how much of an incentive privatized prisons have to follow a theoryof restorative justice. 166 Restorative justice, or restitution, is in many waysa blend of civil and criminal law. Instead of focusing on the perpetratorhimself, a restorative justice approach seeks to mend the harm of criminalactivity by making the victim whole. 167 Not surprisingly, punishment andincarceration are not always the principle aims of restitution.Accordingly, critics have noted that there are several problems witha restorative justice approach. First, a criminal justice scheme based onrestorative principles grants elevated roles to victims and victim advocacygroups. 168 And while it is important for society and juries to see the harmcaused by criminal behavior, it must be weighed with the understanding thatvictims are rarely objective. Second, restitution is not applicable for everycrime. 169 By placing monetary value on criminal behavior, we risk a societywhere all losses can be compensated. Moreover, such a system would favorthe wealthy, and create incentives for calculated criminal behavior in situationswhere the rewards outweighed the risks. In light of this, many feelthat values should take precedence over value, and restorative justice shouldplay only a limited role in the criminal justice system. 170Nevertheless, there are times when restitution may play a more effectiverole in the criminal justice system than incarceration. 171 For instance, withjuvenile offenders it may be more advantageous to society for the young offendersto learn the true value of crime, by working to compensate the victim.Furthermore, some argue that drug crimes, in particular, should be analyzedunder restorative approach rather than a retributive model. 172In addition, some commentators have noted that restorative justice modelsactually aid in the rehabilitation process. 173 For example, certain NativeAmerican communities use peacemaking circles to confront criminal behavior.174 These peacemaking circles “[do] not treat the criminal act as an isolatedincident that demands merely retributive action. Rather, any resolution musttake an inclusive approach, considering the impact of the crime and possibleredress on all parties and the community as a whole.” 175

84 national lawyers guild reviewCommon sense argues that any restorative approach that does not requireincarceration would be inapposite to a business oriented approach to criminaljustice. Victim compensation creates competition. And although the inmatepopulation rate is growing in the United States, 176 it seems reasonable toconclude that the private prison industry would be careful to monitor its onlyresource, and necessarily oppose restitution and alternative sanctions.IV. ConclusionThe economic benefits of prison privatization may or may not exist. Tothe extent they do, they are fleeting. Regardless, focusing only upon thebottom line oversimplifies the subject. Social acceptance of prisons requiresmoral legitimacy within the criminal justice system. A scheme that shiftsresponsibility to the private sector necessarily raises questions regarding theimportance of criminal law and the rationales for punishment. The true valueof any criminal justice system must be measured in terms of the benefitsaccrued by society. Accordingly, when we look at private prisons we mustask if the alleged but highly disputed benefits of efficiency outweigh theburdens, dangers, and doubts that are known to accompany the privatizedprison industry.________________NOTES1. See Geoffrey F. Segal, Reason Public Policy Institute, The Extent,History, and Role of Private Companies in the Delivery of CorrectionalServices in the United States 3 (2002), available at http://reason.org/ps302.pdf (The author divides private prison services into three categories: design andconstruction; ancillary services such as food and medical care; and contract managementor ownership of prison facilities).2. Ahmed A. White, Rule of Law and the Limits of Sovereignty: The Private Prisonin Jurisprudential Perspective, 38 Am. Crim. L. Rev. 111, 121 (2001).3. Id. at 120 (“Neither the term ‘prison’ nor ‘private prison’ has a self-evident meaning.. . . At various points it has contemplated everything from facilities for detainingjuveniles and undocumented immigrants, to ‘halfway’ houses, to city and countyjails housing misdemeanants and those awaiting trial, to the quintessential ‘bighouses,’ huge self-contained edifices brimming over with hardened felons, thatcontinue to dominate the prison landscape.”).4. See James Austin & Garry Coventry, National Council on Crime andDelinquency, Department of Justice, Emerging Issues on PrivatizedPrisons 19 (2001), http://www.ncjrs.gov/pdffiles1/bja/181249.pdf (The authorsargue that the history of privatization in the criminal justice system within U.S.territory can be traced back to the early colonial period, where low-level felonswere granted amnesty in return for their indentured servitude); see also SharonDolovich, State Punishment and Private Prisons, 55 Duke L.J. 437, 450 (2005)(“In colonial America, the meting out of criminal punishment was purely a local

crime and punishment in private prisons85matter and could include any of a range of sanctions, among them fines, flogging,the stockade, banishment, and the gallows—but not imprisonment. As in eighteenth-centuryEngland, jails were merely holding chambers for debtors or for thoseindividuals awaiting trial or punishment.”).5. Austin & Coventry, supra note 4, at 19; see, e.g., Stephen Raher, ColoradoCriminal Justice Reform Coalition, Private Prisons and Public Money(2002), http://www.ccjrc.org/pdf/CostDataReport2002.pdf (“The operation of prisonsfor private gain first surfaced in the United States shortly after the Civil War,when prison populations in southern states skyrocketed and a system of ‘convictleasing’ was devised in order to relieve over crowded prisons and enrich privatemanufacturing concerns.”).6. White, supra note 2, at 124 (arguing that extra-legal punishments and labor shortageslargely prevented the establishment of formal institutions).7. See Austin & Coventry, supra note 4, at 9.8. Id.at 9.9. Id. at 10 (citing Clair Cripe, Legal Aspects of Correctional Management378 (1997)) (“Payments were extracted for special services, such as better meals orother privileges. Some money was given to the jailer (often the sheriff) for basicservices. But it was widely accepted that jailers could charge additional moneyfor virtually any type of special benefit.”).10. White, supra note 2, at 124.11. See Alex Lichtenstein, Twice the Work of Free Labor 60 (1995) (demonstratingthat the number of convicts in the Georgia Penitentiary grew from 385 in1871 to 2558 in 1909, nearly a seven-fold increase).12. Raher, supra note 5, at 4; see Dolovich, supra note 4, at 450-51 (arguing that thefirst prison labor programs were designed to be rehabilitating).13. Austin & Coventry, supra note 4, at 10; see, e.g., White, supra note 2, at 127(“Every southern state after the Civil War, except Virginia, eventually institutedthe widespread leasing of state inmates to private individuals or firms.”).14. Austin & Coventry, supra note 4, at 10-11 (“For most of the correctional historyof the United States, prison labor was expected to generate a profit for the institution.If generating a profit was not feasible, it was incumbent upon the prisoner topay the costs of incarceration and become self-supporting.”).15. White, supra note 2, at 127-30.16. Id. at 129.17. Id. at FN64.18. White, supra note 2, at 128 (“On average, leasing generated revenues several timesthe costs. At one point, for example, Alabama derived six to ten percent of its totalstate revenues from leasing—and this in contrast to the prospect of actually payingfor incarceration.”).19. Ida B. Wells & Frederick Douglass et. al., The Reason Why theColored American is not in the World’s Columbian Exposition,Chapter III (1893), available at http://digital.library.upenn.edu/women/wells/exposition/exposition.html.

86 national lawyers guild review20. Id.; see Dolovich, supra note 4, at 451-52 (illustrating Mississippi’s “Pig Law”which provided a five year sentence for theft of a farm animal, a law aimed at newlyfreed slaves).21. Austin & Coventry, supra note 4, at 11.22. Id.at 11.23. Id. at 11.24. Id.at 11.25. Gilder Lehrman Center, Forced Labor in the 19th Century South, TheStory of Parchman Farm 2, avaiable at http://www.yale.edu/glc/events/cbss/Oshinsky.pdf (last visited Sept. 25, 2009).26. See id. (“At a prison camp of the Greenwood and August Railroad, convicts wereused up faster than South Carolina authorities could supply them. Between 1877 and1879, the G & A ‘lost’ 128 of their 285 prisoners to gunshots, accidents, and disease(a death rate of 45 percent) and another thirty-nine to escapes.”); Matthew Zito,International Foundation for Protection Officers, Prison Privatization:Past and Present (2003), http://www.ifpo.org/articlebank/prison_privatization.html (“In one camp the reported mortality rate of convicts was 10% per month,and at other camps it was even higher.”).27. Austin & Coventry, supra note 4, at 11.28. Id. at 11.29. Id.; see Wells & Douglass et al., supra note 18, Chapter III; see Zito, supranote 26 (noting that “women and children as young as twelve years old . . . werehoused together with hardened criminals, and it was not uncommon for babies tobe born inside the camps.”).30. Matthew J. Mancini, One Dies, Get Another, Convict Leasing in theAmerican South, 1866-1928, at 219 (1996).31. Austin & Coventry, supra note 4, at 11; see also Mancini, supra note 30, at 221(The author notes that some historians have argued that rise of the Democratic partymay have played a contributing factor. This explanation places a heavy emphasison a political rationale, rather than ethical or humanitarian justifications.).32. Austin & Coventry, supra note 4, at 11.33. Id. at 11.34. Id.; Whitfield v. Ohio, 297 U.S. 431, 434 (1936) (citing the Hawes-Cooper Act,49 U.S.C. § 60 (1929) (no longer in force)) (“All goods, wares, and merchandisemanufactured, produced, or mined, wholly or in part, by convicts or prisoners, exceptconvicts or prisoners on parole or probation, or in any penal and/or reformatoryinstitutions, except commodities manufactured in Federal penal and correctional institutionsfor use by the Federal Government, transported into any State or Territoryof the United States and remaining therein for use, consumption, sale, or storage,shall upon arrival and delivery in such State or Territory be subject to the operationand effect of the laws of such State or Territory to the same extent and in the samemanner as though such goods, wares, and merchandise had been manufactured,produced, or mined in such State or Territory, and shall not be exempt therefromby reason of being introduced in the original package or otherwise.”).

crime and punishment in private prisons8735. White, supra note 2, at 133 (The author notes, however, that convict leasing remainedat the county level until well into the civil rights era).36. Mancini, supra note 30, at 222 (noting that Alabama, Arkansas, and Mississippicontinued to allow convict leasing decades after legally prohibiting the practice).37. Austin & Coventry, supra note 4, at 11. But see Lichtenstein, supra note11, at 185 (arguing that in many instances the public chain gang replaced convictleasing, not necessarily, the more modern public penitentiary).38. Austin & Coventry, supra note 4, at 11 (noting such services as food preparation,vocational training, inmate transportation, medical care, dental care, and mentalhealth care).39. Nicole B. Casarez, Furthering the Accountability Principle in Privatized FederalCorrections: The Need for Access to Private Prison Records, 28 U. MichiganJ.L. Reform 249, 253-54 (1995) (describing juvenile homes, halfway houses, andfederal pre-release community treatment centers).40. Austin & Coventry, supra note 4, at 12.41. Id. at 12.42. Juvenile and Delinquency Prevention Act of 1974, Pub. L. No. 93-415, 88 Stat.1109.43. Id. § 102(B)(2).44. Patrick Bayer & David E. Pozen, Economic Growth Center, TheEffectiveness of Juvenile Correctional Facilities: Public Versus PrivateManagement 4 (2003), available at http://www.econ.yale.edu/growth_pdf/cdp863.pdf.45. Austin & Coventry, supra note 4, at 12.46. Id. at 12; see Charles H. Logan, Private Prisons 18 (1990) (stating that thefacility housed 15-18 year old males who had committed crimes such as “burglary,robbery, assault, sex offenses, weapons offenses, arson, vandalism, and theft”).47. Austin & Coventry, supra note 4, at 12; Logan, supra note 41, at 18 (theauthor notes that the Okeechobee school housed 400 to 450 boys, far more thanWeaversville’s 22 inmates).48. See Logan, supra note 46, at 21.49. Id. at 21.50. Id.at 21.51. Austin & Coventry, supra note 4, at 12.52. Id. at 12; Logan, supra note 46, at 31; see also Judith Greene, Comparing Privateand Public Prison Services and Programs in Minnesota: Findings from PrisonerInterviews 1 (1999), available at http://archive.epinet.org/real_media/010111/materials/greene.pdf(stating that CCA unsuccessfully attempted to contract for theentire Tennessee system for 250 million dollars).53. Logan, supra note 46, at 24-25 (CCA did officially gain title to the jail until 1986).From 1987 to 1997, CCA’s revenue stream increased thirty fold, while its bedsgrew from 1,715 to 52,890. See Austin & Coventry, supra note 4, at 12.54. Austin & Coventry, supra note 4, at 12.

88 national lawyers guild review55. See Office of Justice Programs, United State Department of Justice,Bureau of Justice Statistics, Prisoners in 2006, at 5 (Dec. 2006), availableat http://www.ojp.usdoj.gov/bjs/pub/pdf/p06.pdf.56. Judith Greene, Banking on the Prison Boom, Prison Profiteers 3 (2007), 4 (TaraHerivel & Paul Wright ed., 2007).57. Gary Hunter & Peter Wagner, Prisons, Politics, and the Census, Prison Profiteers80 (2007), 81 (Tara Herivel & Paul Wright ed., 2007).58. JFA Institute, Unlocking America, Why and How to Reduce America’sPrison Population 8 (2007), available at http://www.jfa-associates.com/publications/srs/UnlockingAmerica.pdf;see also Franklin E. Zimring, GordonHawkins, & Sam Kamin, Punishment and Democracy 6 (2003) (analyzingCalifornia’s three strike rule for habitual offenders, a ballot initiative).59. Casarez, supra note 39, at 254.60. JFA Institute, supra note 58, at 6; see also Public Safety PerformanceProject, Pew Charitable Trust, Public Safety, Public Spending,Forecasting America’s Prison Population 2007-2011, at 4-5 (2007), availableat http://www.pewcenteronthestates.org/uploadedFiles/Public%20Safety%20Public%20Spending.pdf (The organization predicts a prison rate increase of 192,000people over the next five years, nearly matching the total population in 1970. Theorganization further forecasts that western states such as Colorado, Montana, andWyoming will see total rate increases of more than 25 percent.).61. Eric Schlosser, The Prison-Industrial Complex, The Atlantic, Dec. 1998, http://www.theatlantic.com/doc/print/199812/prisons.62. Gail Russell Chaddock, US Notches World’s Highest Incarceration Rate, ChristianScience Monitor, Aug. 18, 2003, http://www.csmonitor.com/2003/0818/p02s01-usju.html.63. Id.; see Human Rights Watch, Backgrounder: Incarcerated America (April,2003), http://www.hrw.org/backgrounder/usa/incarceration/ (Noting that in twentystates, the percentage of blacks within the prison population was at least five timesgreater than the total percentage of their state resident population. Strangely, themajority of these states, including Colorado, were in upper West and Midwest.South Dakota, Vermont, and West Virginia lead the nation with ratios over ten.).64. See William Wilbanks, The Myth of a Racist Criminal Justice System(1987), available at http://www.radford.edu/~tburke/Burke/The%20myth%20of%20a%20racist%20criminal%20justice%20system.pdf.65. See Prisoners in 2006, supra note 55, at 7 (The study notes that while the totalnumber of black prisoners has increased from 2000 to 2006, the actual rate hasdropped. Both the white and Hispanic rates increased).66. Id. at 1 & 14 (Federal incarceration rates experienced an average annual growthrate of 5.8% from 2000 to 2005, and 2.9% from 2005 to 2006). For the purposeof this article, it is also important to note that roughly 4.3 million former prisonerslive outside the criminal justice system. And whether our focus is upon theory orhard evidence, such as recidivism rates, it is important that we note the thousandsof individuals existing in private prisons every year. Chaddock, supra note 62.

crime and punishment in private prisons8967. See Segal, supra note 1, at 2.68. Id. (needs to be more clear, need to find page to reference, I can’t find it)69. See Prisoners in 2006, supra note 55, at 5.70. See Segal, supra note 1, at 6-10.71. Id. (citing Keon Chi and Cindy Jasper, Council of State Governments,Private Practices: A Review of Privatization in State Government 8(1998) (noting that the rationales were rated as reasons for privatization in about20% of the agencies surveyed)).72. See Segal, supra note 1, at 2.73. Austin & Coventry, supra note 4, at 40.74. Id. at 39.75. Id. at 40. A 1999 report by the American Federation of State, County andMunicipal Employees puts the number of private corporations at twelve. AFSCME,Publications, The Industry (2008), http://www.afscme.org/publications/2558.cfm.76. Kelly Patricia O’Meara, Prison Labor is a Growth Industry, Insight onthe News, May 24, 1999, available at http://findarticles.com/p/articles/mi_m1571/is_19_15/ai_54736555.77. AFSCME, supra note 75.78. Austin & Coventry, supra note 4, at ix (these prisons were housed in the UnitedKingdom, Australia, and South Africa).79. Schlosser, supra note 61.80. See AFSCME, supra note 75.81. See id.at 75.82. Id.at 75.83. See Justice Policy Institute, Violent Crime Fell in 2007; Prison andJails Experienced Less Growth than Previous Years: Areas with LowerIncarceration Rates Experienced Greater Crime Reductions, http://www.justicepolicy.org/images/upload/08-09_FAC_FBIUCR2007_AC-PS.pdf (last visitedSept. 26, 2009).84. Federal Bureau of Investigation, Property Crime, Crime in the UnitedStates 2007, available at http://www.fbi.gov/ucr/cius2007/offenses/property_crime/index.html.85. Federal Bureau of Investigation, Crime in the United States 2007, Table1, available at http://www.fbi.gov/ucr/cius2007/data/table_01.html.86. John W. Suthers, No Higher Calling, No Greater Responsibility, AProsecutor Makes his Case 43 (2008) (“Arguments about the purpose of punishmentare as old as civilization.”).87. Sanford H. Kadish et al., Criminal Law and Its Processes 79 (8th ed. 2007);Cyndi Banks, Criminal Justice Ethics 105 (2004).88. Kadish, supra note 87, at 79.89. Banks, supra note 87, at 104-05; Suthers, supra note 86, at 43-54.

90 national lawyers guild review90. See Banks, supra note 84, at 104.91. Id. at 104.92. See id. at 105.93. Kadish, supra note 87, at 99.94. See Banks, supra note 87, at 104.95. Id.at 104.96. Richard Quinney & A. Javier Trevino, The Social Reality of Crime 115(2001).97. Id.at 115.98. Kadish, supra note 87, at 1.99. Peter Arenella, Convicting the Morally Blameless: Reassessing the Relationshipbetween Legal and Moral Accountability, 39 UCLA L. Rev. 1511, 1528 (1992).100. See Federal Bureau of Prisons, Budgetary Summary, available at http://www.usdoj.gov/jmd/2009summary/pdf/bop-bud-summary.pdf (requesting justover $12 billion for the 2009 year); Colorado Department of Corrections,FY 2009-10 Budget Cycle 8, available at http://www.colorado.gov/cs/Satellite?blobcol=urldata&blobheader=application%2Fpdf&blobkey=id&blobtable=MungoBlobs&blobwhere=1227051791486&ssbinary=true (requesting $824 milliondollars for the 2009-2010 fiscal year, up from $761 million).101. See generally, Associate Attorney General Daniel Marcus, Building Trust andConfidence in the Criminal Justice System, Remarks to the 203rd Federal Bureauof Investigation Academy Class (Oct. 17, 2000), http://www.usdoj.gov/archive//aag/speeches/2000/cp_fbi_marcus_remarks.htm.102. Jeremy Bentham, An Introduction to the Principles of Morals andLegislation 189 (A New Ed., 1907).103. Id. at 193.104. Mark C. Stafford & Mark Warr, A Reconceptualization of General and SpecificDeterrence, in Contemporary Criminological Theory 26, 26 (Peter Cordella& Larry J. Siegel ed., 1996).105. See id.at 26.106. See Bentham, supra note 102.107. See id. at 102.108. See generally Australian Institute of Criminology, Problems Associatedwith Measuring Recidivism, available at http://www.aic.gov.au/publications/rpp/17/problems.pdf (last visited Dec. 13, 2008).109. Austin & Coventry, supra note 4, at 17.110. Sarah Posner, Security for Sale, The American Prospect, Dec. 18, 2005, availableat http://www.prospect.org/cs/articles?articleId=10750.111. Id.112. Lauren Reinlie, Lax Oversight Plagues Private Prisons in Texas, 1.9 Watch YourAssets 5, Feb. 6, 2008, http://www.tpj.org/watchyourassets/prisons/prisons.pdf.113. Schlosser, supra note 61.

crime and punishment in private prisons91114. Zimring, Hawkins, & Kamin, supra note 58, at 85 (noting that California’s threestrikerule seems to deter felonious crime by only 0-2%).115. See generally Paul Gendreau et al., Solicitor General Canada, TheEffects of Prison Sentences on Recidivism (1999), available at http://www.prisonpolicy.org/scans/gendreau.pdf.116. See Milton Friedman & Steven Medema, Price Theory 280 (New ed.,2007).117. Robert Cryer et al., An Introduction to International Criminal Lawand Procedure 19 (2007).118. See Banks, supra note 87, at 109.119. See id. at 109.120. See id. at 110.121. H. L. A. Hart, Punishment and Responsibility 234-35 (1968), available athttp://www.stephankinsella.com/texts/hart_punishment-responsibility.pdf.122. See Kadish, supra note 87, at 85.123. See Developments in Law, III. A Tale of Two Systems: Cost, Quality, andAccountability in Private Prisons, 115 Harv. L. Rev. 1868, 1871-72 (2002) (notingthat space constraints preclude the moral debate).124. Banks, supra note 87, at 110; see Andrew Von Hirsch, Censure and Sanctions9 (2003).125. Banks, supra note 87, at 110-11.126. See Austin & Coventry, supra note 4, at 16 (“As a policy matter, opponentsto privatization . . . claim it is inappropriate to operate prisons based on a profitmotive.”); Jody Freeman, The Contracting State, 28 Fla. St. U. L. Rev. 155, 188(2000) (““the private interest in maximizing profits may conflict with the publicinterest in sound correctional policies”).127. Dan Markel, Are Shaming Punishments Beautifully Retributive? Retribution andthe Implications for the Alternative Sanctions Debate, 54 Vand. L. Rev. 2157,2234 (2001).128. Id. (quoting Sharon Dolovich, The Ethics of Private Prisons (1999) (anunpublished document)).129. See Hunter & Wagner, supra note 57, at 82. The authors present an interestingargument regarding the usage of inmates to expand rural census counts. Regardingthe 2000 U.S. census, they state “there are twenty-one counties where a least 21 percentof the reported census population is actually incarcerated people from outsidethe county. In 173 counties, more than half of the African American populationreported in the census is incarcerated.”130. See Clarence Darrow, Crime and Criminals, An Address to the Prisonersin the Chicago Jail (1919).131. Schlosser, supra note 61 (“Prison jobs have slowed the exodus from small towns,by allowing young people to remain in the area. . . . The job brings health benefitsand a pension.”).132. However, as Schlosser notes, the economic transference is typically geographicalas well across sector. Id.

92 national lawyers guild review133. Markel, supra note 127, at 2234.134. Banks, supra note 87, at 109.135. Williams v. New York, 337 U.S. 241, 248 (1949).136. See Banks, supra note 87, at 116.137. Id. at 117; Kadish, supra note 87, at 99.138. See generally Stephan Hurwitz & Karl O. Christiansen, Criminology 1(1983).139. Katri K. Sieberg, Criminal Dilemmas 45 (2001).140. Austin & Coventry, supra note 4, at 16.141. See generally Sieberg, supra note 138, at 10.142. Id. at 10; see also Freeman, supra note 126, at 188 (“Private prison officials andprivate guards exercise discretion over every aspect of the prisoners’ daily experience:meals, health care, recreation, cell conditions, transportation, work assignments,visitation, and parole. Private prison officials determine when infractionsoccur, impose punishments and, perhaps most significantly, make recommendationsto parole boards. Their discretion affects prisoners’ most fundamental liberty andsecurity interests.”). But see Austin & Coventry, supra note 1, at 55 (notingthat inmates in private facilities had greater degrees of participation in educationalprograms, vocational programs, drug and alcohol counseling courses).143. See Sieberg, supra note 139, at 10 (using the terms “positive” and “negative”influences).144. Id. at 10.145. Id. at 10.146. Id. at 12.147. See John J. Dilulio, Jr., Prisons are a Bargain, by Any Measure, N.Y. Times, Jan.16, 1996, in Kadish, supra note 87, at 102.148. Suthers, supra note 86, at 52.149. Reinlie, supra note 112, at 4; Austin & Coventry, supra note 1, at 16 (“Laborcosts are controlled by reducing one of more of the following personnel cost factors:(1) number of staff, (2) wages, or (3) fringe benefits. . . . Prisons are extremelylabor intensive, with approximately 65 to 70 percent of the costs of operating aprison going to staff salaries, fringe benefits, and overtime. Controlling these costsis more difficult to achieve with unionized government workers.”).150. Sieberg, supra note 103, at 38.151. Austin & Coventry, supra note 4, at 47.152. Scott D. Camp & Gerald G. Gaes, Federal Bureau of Prisons,Growth and Quality of U.S. Private Prisons: Evidence from aNational Survey 435 (2006), available at http://www3.interscience.wiley.com/cgi-bin/fulltext/118964088/PDFSTART.153. Austin & Coventry, supra note 4, at 49.154. Camp & Gaes, supra note 153, at 430.

crime and punishment in private prisons93155. Austin & Coventry, supra note 4, at 49; Camp & Gaes, supra note 153, at 432(finding problems in “inadequate numbers of staff, inexperienced staff, insufficientlytrained staff . . . and physical plant deficiencies”).156. See Freeman, supra note 126, at 188 (“the relative invisibility and low moral statusof the prison population makes prisoners especially vulnerable and heightens theneed for accountability”).157. ACLU Signs Off on Otay Mesa Detainee Overcrowding Deal, San Diego 6,http://www.sandiego6.com/news/local/story.aspx?content_id=c4ca75a4-e665-4535-8cb0-44070322f2e3&gsa=true (last visited Sept. 26, 2009).158. Associated Press, Idaho Private Prison has Triple Assault Rate, KTVB.com, Nov.10, 2008, http://www.ktvb.com/news/crime/stories/ktvbn-nov1008-private_prison_assaults.19d675fe6.html.159. Dimitria D. Pope, Texas Youth Commission, Coke County JuvenileJustice Center Audit 7 (2007), available at http://privateci.org/private_pics/tyc_CokeCounty_AuditReport[1].pdf.160. Id.161. Austin & Coventry, supra note 4, at 36 (“The U.S. District Court . . . grantedpreliminary approval of a $1.6 million settlement on behalf of the District inmateswho claimed that they were abused, denied adequate medical care, and not properlyseparated from other inmates.”).162. The Sentencing Project, Prison Privatization and the Use ofIncarceration 3 (2004), http://www.sentencingproject.org/Admin/Documents/publications/inc_prisonprivatization.pdf.163. Id.164. Austin & Coventry, supra note 4, at 46.165. Interview with Damon Hininger, in Stephanie Chen, Larger Inmate Population isBoon to Private Prisons, Wall St. J., Nov. 18, 2008, available at http://online.wsj.com/article/SB122705334657739263.html.166. It should be noted that many states have restorative schemes whereby inmates“pay” back their victims from work performed within the penitentiary. Certainlya private prison corporation would have an incentive to see such legislation passed.However, for the purposes of this section, I am discussing only those restorativejustice schemes that exist as alternatives to prison terms.167. Banks, supra note 87, at 118.168. Id. at 119.169. Suthers, supra note 86, at 46 (“Restitution should play a very important role insentencing in many cases and virtually none in others.”).170. See id. at 46.171. See id.at 46.172. Eleanor Hannon Judah & Michael Bryant, Criminal Justice: Retributionv. Restoration 58 (2004). And see Corrections Corporation of America 2005Annual Report, reprinted in Greene, supra note 56, at 1 (“[P]ossible growth dependson a number of factors we cannot control. . . . [A]ny changes with respect to

94 national lawyers guild reviewdrugs and controlled substances or illegal immigration could affect the number ofpersons arrested, convicted, and sentenced, thereby potentially reducing demandfor correctional facilities to house them.”).173. Jessica Metoui, Returning to the Circle: The Reemergence of Traditional DisputeResolution in Native American Communities, 2007 J. Disp. Resol. 517, 526(2007).174. Id. at 527.175. Id.at 527.176. See supra text accompanying note 66.Subscribe toNational Lawers Guild ReviewFree to NLG members. Membership information atwww.nlg.org or at address below.1 Year (4 issues) Non-member Lawyer,Law Office or Business . . . . . . . . . . . . . . $55.001 Year (4 issues) Non-member Student orLegal Worker . . . . . . . . . . . . . . . . . . . . . . $30.001 Year (4 issues) Jailhouse Lawyer/IncarceratedPerson . . . . . . . . . . . . . . . . . . . . . . . . . . $10.00(Outside the U. S., add $5.00/year to above rates.)name________________________________________________________________________address_________________________________________________________________city____________________________________state__________zip________________E-mail__________________________________________________________________Please send with check or money order to: NLG Review,132 Nassau Street, Suite 922, New York, NY 10038.Email: communications@nlg.org

Alan ClarkeU.S. War Crimes: Tortureas Official BushAdministration PolicyIntroduction: Torture as a U.S. war crimeAmericans accept that the United States tortured people in its war againstterror and has sent others to places doing worse. 1 Moreover, the United Statesadmits to waterboarding suspects, 2 and a “majority of Americans considerwaterboarding a form of torture.” 3 Former Bush administration officialsstoutly deny using torture and claim that everything done by the administrationhas been lawful. Notwithstanding these denials, robust evidence pointsto an intentional policy reinstituting torture as an interrogation technique.The United States has both directly tortured people on administration ordersand sent people to countries where grotesquely medieval torture is routinelyinflicted. The orders for torture came from the President and other high-levelofficials, including the Vice President and members of the Cabinet. Theseare war crimes, illegal as well as immoral. This paper reviews this country’sinstitution of torture as official policy during the Bush administration anddiscusses the consequences.The issue is a hot one, prompting domestic 4 and international 5 astonishmentat the claimed lawfulness of such practices. Manfred Nowak, who isboth a law professor and the UN Special Rapporteur on Torture, said, “I’mnot willing any more to discuss these questions with the US government,when they say this [waterboarding] is allowed. It’s not allowed.” 6Prior to the current Bush administration, American courts and othertribunals consistently branded waterboarding “torture.” 7 The United Statesprosecuted members of the Japanese armed forces after World War II, inpart because they used waterboarding as a form of torture. 8 Moreover, itsown courts have called waterboarding torture when used by domestic lawenforcement. 9 The United States even court-martialed at least one of its ownmilitary officers for employing waterboarding during the occupation of thePhilippines at the beginning of the twentieth century. 10_____________________Alan W. Clark is Professor of Integrated Studies at UtahValley University. This articleis an updated and shortened version a longer piece called Creating a Torture Culturein 32 Suffolk Transnational Law Review 1 (2008) and was also published inthe Proceedings of the 11th Annual Conference by the Faculty at UtahValley University (2009).

96 national lawyers guild reviewMore importantly, such a narrow focus on waterboarding may distractfrom other harsh interrogation techniques. Many of these other “alternativeinterrogation techniques” have equally profound effects on their victimsand justly deserve the name “torture.” Some victims of U.S. interrogationpractices at Guantanamo have become delusional. 11 During interrogation,one detainee was seen, chained hand and foot on the floor in the fetalposition, beside a pile of his hair that he had pulled out over the course ofthe night. 12According to one of the leading authorities on the subject, “torture lite”victims can suffer “depression, excessive anxiety, post-traumatic stress disorderand sometimes full-blown psychosis.” 13 Moreover, these symptomscan persist for twenty or thirty years and are extremely difficult to treat. 14According to a study of nearly three hundred persons from the former Yugoslavia,the degree of stress reported by those who suffered “clean” torturedid not differ from that of those subjected to psychical torture. Both groupsshowed “equally high levels of post-traumatic stress disorder.” 15 “‘Clean’methods of interrogation might appear more sanitized and therefore moreacceptable than those that leave physical scars. But don’t be fooled. Theyare just as brutal, crude—and pointless—as ever.” 16One may reasonably ask why techniques that cause such long-lastinganguish are not torture. While waterboarding may be the most obvious exampleof a practice constituting torture, it is not the sole technique, as tortureencompasses a range of physically and mentally debilitating practices. Manyof the authorized alternative interrogation techniques are ill-disguised by theeuphemisms currently in vogue. 17Finally, regardless of whether the U.S. government counts these techniquesas torture, others do. For example, a Spanish judge recently droppedextradition requests of the United Kingdom for two alleged members ofal-Qaeda. 18 Both were determined incompetent to stand trial because ofsevere mental and physical stress caused by detention at Guantanamo andin Afghanistan. 19Torture and its near cousin, rendition to torture, are war crimes practicedby the United States as a matter of official policy. These practices, however,are strongly contested internationally, and this in turn imposes significantcosts on the United States. International human rights norms generally, andinternational laws more specifically, inform the backlash against the UnitedStates’ use of torture and cruel, inhuman, and degrading interrogation techniques,and this criticism by the international community works to curtailthe practice.

u.s. war crimes: torture as official bush administration policy97Understanding torturePsychology teaches that people everywhere are capable of great crueltyjust as they are also capable of great kindness. Much turns on the situation,which can bring out the worst in anyone. Institutionalized torture comesabout from otherwise ordinary people, who, when caught up in situationsthat seemingly demand it, abuse their fellow humans. As both StanleyMilgram’s 20 and Phillip Zimbardo’s 21 experiments have taught, otherwisenormal people can do surprisingly harsh things.We like to think that horrific human rights abuses are limited to narrowhistorical circumstances like those occurring in the Third Reich, and thatnormal, everyday humans do not act in such a manner. Milgram’s experimentsteach us that most individuals will do things that they would neverhave guessed themselves capable of. As historian Alfred W. McCoy reports,“one subject, a military veteran … recalled feeling like ‘an emotional wreck’… from the realization ‘that somebody could get me to do that stuff.” 22Philip Zimbardo’s prison experiments showed how groups of averagepeople can, when given arbitrary power (and a perceived need), severelyabuse others without remorse or concern for the consequences. Thus,Zimbardo’s experiment adds an understanding of the group dynamic thatcan lead normal people to abuse others.Sociologist Martha Huggins demonstrates a large, real world applicationof Milgram and Zimbardo’s findings. Her study of police torture in Brazilidentifies six conditions that are associated with systemic torture:1. Unchecked and arbitrary excessive rule;2. Ideology of war against evil (or communism, etc.);3. Secrecy of interrogation locations and procedures;4. Hidden identities of interrogators and those interrogated; 5. A social control division of labor giving plausible deniability andobscured perpetrator’s relationship to the violence; 6. A public rendered impotent by fear. 23Each of these factors has been present to some degree in the current waron terror. However, Brazil was, for the period in which many abuses occurred,an authoritarian junta. We know, however, that democracies, alsotorture. Why is this?Political scientist Darius Rejali explains that while democracies arenot as bad as totalitarian regimes, they not only engage in torture but also are“the real innovators in twentieth century torture. It might make Americans

98 national lawyers guild reviewuncomfortable, but the modern repertoire of torture is mainly a democraticinnovation.” 24 The difference between democratic torture and that of theGestapo has been the search for “clean” techniques that leave no mark: “associeties have become more open, the art of torture has crept undergroundand evolved into the chilling new forms – often undetectable – that definetorture today.” 25 The shift to clean techniques is a response to public pressure.Because the torturer is susceptible to public pressure, “[g]overnmentsthat continue to use torture have moved to techniques that leave little trace. . . Strange as it may seem, torturers and their apologists really do care.” 26Thus, torture can thrive in a democracy if it can be hidden; which depends ona closed system with a lack of accountability and lack of access to courts.Rejali notes that torture may arise because security bureaucracies overwhelmthose assigned to monitor them. Thus, where there is a lack of accountability,democracies will also torture—the main difference is the extentto which they will go to try to hide it. 27We are told that the War on Terror is a “different kind of war” with “[n]ogeographic limitations [a]nd no end in sight.” 28 President Bush says that ourenemies are “evil-doers” 29 outside of the law and undeserving of legal protection.30 We inhabit a world of “us” against “the evil doers” which permitsa torture culture to take hold. Al-Qaeda becomes equated with pirates andslave traders to be dealt with or extirpated at will. As one prominent legaldefender of the administration puts it:Why is it so hard for people to understand that there is a category of behaviornot covered by the legal system? What were pirates? They weren’t fighting onbehalf of any nation. What were slave traders? Historically, there were peopleso bad that they were not given protection of the laws. There were no specificprovisions for their trial, or imprisonment. If you were an illegal combatant,you didn’t deserve the protection of the laws of war. 31In this context, with suspects demonized and placed outside of law, theBush administration’s statements sound uncomfortably similar to GeneralWilhelm Keitel’s Nuremburg testimony:The main theme [of Hitler’s instructions] was that this was the decisive battlebetween two ideologies, and that this fact made it impossible to use in this warmethods as we soldiers knew them and which were considered to be the onlycorrect ones under the International Law. The war could not be carried on bythese means. In this case completely different standards had to be applied.This was an entirely new kind of war, based on completely different argumentsand principles. 32Plainly, Huggins’ conditions of a “war against evil,” and a “public immobilizedby fear,” are met in the war on terror. The point is not that the

u.s. war crimes: torture as official bush administration policy99United States is close to becoming another Nazi Germany, whose excessesfar outstrip the evils of almost any imagined comparison. The reasoningunderpinning the current abusive practices in the War on Terror is the sameas the reasoning underpinning Nazi aggression in Europe. We cannot demonizethe enemy, and simultaneously raise fears among the public, withoutpaying a price.The teachings of modern psychology, sociology, and history suggest thatwhen faced with systemic, widespread torture and cruel treatment, one shouldlook, not to a “few bad apples” but rather to failures of command and control;failures that go to the top. This suggests that one should be skeptical of theadministration’s “few bad apples” theory. From this perspective, Abu Ghraib,extraordinary rendition, secret prisons, and the abusive treatment of prisonersat Guantanamo Bay, was the foreseeable result of a culture of secrecy andunaccountability . 33U.S. tortureDuring the Cold War, the CIA and other intelligence services becameinterested in forceful interrogation tactics that would not leave telltale marks,so-called “torture lite” or, as Darius Rejali puts it, “clean” torture. 34 Suchclean torture, when combined with sensory deprivation and drugs, became thenew torture. Typically, these methods, include sleep deprivation, exposureto heat or cold, the use of drugs to cause confusion, rough treatment (slapping,shoving or shaking), forcing a prisoner to stand for days at a time orsit in uncomfortable positions, and playing on his fears for himself and hisfamily. Although excruciating for the victim, these tactics generally leaveno permanent marks and do no lasting physical harm. 35In 1994, The Baltimore Sun newspaper used the Freedom of InformationAct to seek the long suppressed truth about American use of torture. As aresult, the CIA declassified and released two key manuals. Through theirefforts, we learned that the United States was searching for interrogationtechniques that left no physical or emotional mark since the early 1950s, 36resulting in a 128 page how-to manual, called KUBARK, written in 1963. 37The newspaper also pried loose a 1983 Human Resource ExploitationManual, which, while based on the earlier KUBARK manual, updated CIAinterrogation techniques.Both manuals explicitly contemplate torture. For example, KUBARKstates that “the electric current should be known in advance, so that transformersor other modifying devices will be on hand if needed.” 38 Under theheading “threats and fear” KUBARK goes on to recommend that, “[t]hethreat to inflict pain, for example, can trigger fears more damaging than the

100 national lawyers guild reviewimmediate sensation of pain. In fact, most people underestimate their capacityto withstand pain.” 39 Similarly, KUBARK explains, “threats deliveredcoldly are more effective.” 40 Finally, “resistance is likelier to be sapped bypain which [the person interrogated] seems to inflict upon himself.” 41The CIA’s commitment to permitting and regulating torture is spelled outin the KUBARK section on legal and policy considerations which, amongother things, requires “prior Headquarters approval” before 1) “bodilyharm is to be inflicted” or 2) “medical, chemical, or electrical methods ormaterials are to be used”; the third item on the list requiring headquartersapproval is redacted, leaving one to wonder what more an interrogator mightdo. 42 Plainly, the United States moved towards “clean” torture techniquesthat leave no mark, but leave pain, stress, and extreme discomfort to be thetorturer’s tools.The Human Resource Exploitation Manual (1983 Manual) followedKUBARK twenty years later in 1983. KUBARK and Army field manualsof the 1960’s heavily influenced the 1983 Manual. 43 After Congressionalinvestigators threatened to expose the 1983 Manual, editors hand alteredpassages “that appeared to advocate coercion and stress techniques,” addingthat these methods were “prohibited by law” and were “neither authorized norcondoned.” 44 These alterations make clear that the government understoodthe illegal and immoral nature of these practices—practices that continue intoday’s war on terror. 45 Both of these manuals make clear that much of thetorture and torture training that went on in Vietnam, Latin America, Iran,and the Philippines was the result of deliberate U.S. policy. 46Spreading the culture of torture requires more than manuals and experimentation.Dissemination of torture techniques requires schools. During theCold War, the United States government sought to understand the communistinterrogation techniques, in part to see if ways to resist could be developedand taught. As a result, survival, evasion, resistance, and escape (SERE)schools were developed in 1947 to, among other things, train military personnelto resist enemy interrogation techniques. 47 Simply by going throughSERE training, graduates indirectly learned how to stress and abuse victimswithout ordinarily causing permanent physical harm. SERE instructors, includingpsychologists, devised programs that could be “reverse engineered”and then used at Guantanamo Bay. 48 Torture thus had two paths to leak outinto the broader war: through graduates who could improvise interrogationson the spot in war zones, and through SERE instructors who could bring thesemethods to bear in secret and not-so-secret prisons in Afghanistan, Iraq, andEastern Europe, and at Guantanamo Bay. 49

u.s. war crimes: torture as official bush administration policy101That these training techniques involve torture cannot be doubted. Onegraduate of such survival training describes being waterboarded as “realdrowning that simulates death.” 50 He continued,The questions (What is your unit? Where are you from?) were asked by oneman. But we were not supposed to talk. I remember that the blindfold washeavy and completely covered my face. As the two men held me down, oneon each side, someone began pouring water onto the blindfold, and suddenlyI was drowning. The water streamed into my nose and then into my mouthwhen I gasped for breath. I couldn’t stop it. All I could breathe was water, andit was terrifying. I think I began to lose consciousness. I felt my lungs beginto fill with burning liquid.Pulling out my fingernails or even cutting off a finger would have been preferable.At least if someone had attacked my hands, I would have had to simplytolerate pain. But drowning is another matter. 51One more case serves to demonstrate that the United States uses torture asa matter of official policy—the case of Dan Mitrione, who brought wholesalecruelty to Latin America. Mitrione was an Indiana police chief who becamea police advisor for a CIA front organization; his role was “to teach interrogationmethods . . . [which] included instructions in torture” first in theDominican Republic, then Brazil, and finally Uruguay, where he was murderedby Tupamaro guerrillas. 52 Mitrione, who sought to “professionalize” 53and make torture “scientific,” 54 apparently tortured to death innocent beggarsduring his classroom teaching sessions. 55 His philosophy of interrogation isa chilling reminder of just how far some people will go:When you receive a subject, the first thing to do is to determine his physicalstate, his degree of resistance, through a medical examination. A prematuredeath means a failure by the technician.Another important thing to know is exactly how far you can go given thepolitical situation and the personality of the prisoner. It is very important toknow beforehand whether we have the luxury of letting the subject die. . .Before all else, you must be efficient. You must cause only the damagethat is strictly necessary, not a bit more. We must control our tempers inany case. You have to act with efficiency and cleanliness of a surgeon andthe perfection of an artist. 56Mitrione introduced electrified needles manufactured by the CIA andimported in diplomatic pouches. These needles varied in thicknesses andcould be inserted in a victim’s fingernails and even between teeth. 57 Americanagents trained the dreaded Iranian Savak to the torturers of the Philippinemilitary. There is a direct line from American practices in the past to AbuGhraib and Guantanamo.

102 national lawyers guild reviewWhat the Administration claims to be lawful interrogation, most peoplewould characterize as torture. For example, an unnamed FBI agent observedactivities at Guantanamo Bay and reported:On a couple of occassions [sic], I entered interview rooms to find a detaineechained hand and foot in a fetal position to the floor, with no chair, food, orwater. Most times they had urinated or defacated [sic] in themselves, andhad been left there for 18-24 hours or more. On one occassion [sic], the airconditioning had been turned down so far and the temperature was so coldin the room, that the barefooted detainee was shaking with cold. When Iasked the MP’s what was going on, I was told that interrogators from the dayprior had ordered this treatment, and the detainee was not to be moved. Onanother occassion [sic], the A/C had been turned off, making the temperaturein the unventilated room probably well over 100 degrees. The detainee wasalmost unconcious [sic] on the floor, with a pile of hair next to him. Hehad apparently been literally pulling out his own hair throughout the night.On another occassion [sic], not only was the temperature unbearably hot,but extremely loud rap music was being played in the room, and had beensince the day before, with the detainee chained hand and foot in the fetalposition on the tile floor. 58In another case, an FBI agent reported that he asked a marine whathad caused a detainee at Guantanamo Bay, who was being interrogated,to grimace:The marine said Sgt. Lacey [the interrogator] had grabbed the detainee’sthumbs and bent them backwards and indicated that she also grabbed hisgenitals. The marine also implied that her treatment of that detainee wasless harsh than her treatment of others by indicating that he had seen hertreatment of other detainees result in detainees curling into a fetal positionon the floor and crying in pain. 59Moreover, not only has the United States directly tortured detainees, ithas also sent captured prisoners to other countries to interrogate them usingmedieval torture. Binyam Mohammed provides one of many such examples.Picked up in Pakistan, the United States sent this innocent man to Moroccowhere interlocutors broke his bones, sliced his penis with a scalpel, and gavehim mind-altering drugs. The U.S. even attempted to prosecute him for crimescarrying the death penalty long after it was obvious that there was no goodcase against him because he was, in fact, innocent. 60How high did the torture culture reach?We now know that President Bush personally approved his cabinetminister’s micromanagement of high-value detainee interrogations, whichincluded the use of torture and that the White House had formally approvedwaterboarding for al-Qaeda suspects. 61 Open admission of White House ap-

u.s. war crimes: torture as official bush administration policy103proval of waterboarding radically changes the torture debate. 62 Given thatapprovals came from the highest possible level within the U.S. government,prosecution of anyone within the U.S. has become virtually impossible.Exercise of universal jurisdiction by foreign governments becomes politicallymuch harder. It seems reasonable that the admissions detailed belowwere not inadvertent, but were, rather, a determined effort to staunch thecalls for investigation into, and prosecution of, abusive interrogation at thehands of the CIA.For several years we have known that former Secretary of Defense, DonaldRumsfeld, was directly involved with torture; that he set down techniques,including chaining to the floor, stripping, hooding, and the use of dogs atGuantanamo and Abu Ghraib and that he was personally involved in Mohamedal-Qahtani’s case, 63 where “[I]nterrogators subjected him to eighteento twenty hours per day of aggressive interrogation for forty-eight days overa fifty-four day period. During this time, his body temperature fell to ninetyfivedegrees on two occasions, and his pulse dropped to a life-threateningthirty-five beats per minute.” 64Al-Qahtani’s treatment has been well documented using an official interrogationlog obtained by Time Magazine, 65 but unlike the treatment of some ofthe other detainees it is not a matter of taking the word of the victim over officialdenials. The administration could not plausibly respond in al-Qahtani’scase (as it so often did) that members of al-Qaeda are trained to claim thatthey have been tortured and therefore, those claims are not believable.What we did not know until ABC News broke the story in 2008 was justhow far into the White House the orders to torture went; we now know thatthe authorization to torture al-Qaeda suspects reached the highest levels ofthe White House. 66 According to ABC News’s report, senior administrationofficials held dozens of meetings in the White House Situation Room specificallyto approve the precise techniques used against individual detainees.Chaired by then National Security Advisor, Condoleezza Rice, a meetingincluding Vice President Dick Cheney, Defense Secretary Rumsfeld, Secretaryof State Powell, CIA director Tenet, and Attorney General Ashcroftdecided the minutiae of torture down to the specific number of times thatCIA agents could use a specific tactic such as pushing, slapping, sleep deprivationor waterboarding.President Bush knew that these officials were meeting to discuss theseinterrogations and approved. According to an ABC News Report on April11, President Bush said, “[w]ell, we started to connect the dots in order toprotect the American people,” continuing to the ABC News team, “yes, I’maware our national security team met on this issue. And I approved.” 67 Thus,

104 national lawyers guild reviewwe now know what was heretofore only suspected—that orders to torturewent all the way to the top.At the time, only John Ashcroft expressed reservations—not to thewisdom of the policy of aggressive interrogations, but rather about whether“White House advisors should . . . be involved in the grim details,” asking“[W]hy are we talking about this in the White House? History will not judgethis kindly.” 68 These meetings continued after the withdrawal of the infamousBybee torture memo. Even as Secretary Powell expressed concerns that theprogram was hurting the United States’ image abroad, National SecurityAdvisor Rice told the CIA: “This is your baby. Go do it.” 69The reason for making decisions on the minute details of interrogationsat such a high level stemmed from the CIA’s need for protection. Older CIAagents recalled the agency’s public tarring after the exposure of its PhoenixProgram, which involved torturing and killing thousands of Viet Cong andtheir sympathizers. 70 Field agents worried about potential prosecution 71 andexposure to civil suits. 72 Thus, agents have been buying insurance to protectthemselves from litigation costs and liability arising from the use of harshinterrogation techniques. 73Could the officials who ordered the use of torture be prosecuted underthe War Crimes Act? 74 Law Professor Jack Balkin points out that sections8 and 6(b) of the Military Commission Act of 2006 “insulate[s] these officialsfrom liability for many of the violations of the War Crimes Act” 75 andProfessor Marty Lederman also points out that no Justice Department wouldlikely prosecute persons who reasonably relied on a prior Justice Departmentopinion. 76 Finally, the political cost to any succeeding administrationwould likely be too high—such prosecutions would likely sour any attemptto pursue bipartisan legislation. Thus, prosecution would have to come fromanother country exercising universal jurisdiction over a former official whohappened to travel to that country.However, no such domestic prosecution is likely. Moreover, no nationis likely to want to prosecute high-ranking U.S. officials on its own usinguniversal jurisdiction as the predicate. The risk of affronting what remainsthe world’s most powerful nation would be enormous. The Obama administrationis not likely to want to see such a precedent set and is likely to resistany such attempt at exercising universal jurisdiction. It is in both the UnitedStates’ and the international community’s interest to pursue closer and betterrelations after January 20, 2009. Prosecution of high Bush administrationofficials would not help in this respect.Any trial of a former administration official would lead directly to a formerpresident of the United States. How likely would any future president,

u.s. war crimes: torture as official bush administration policy105regardless of party, allow such a prosecution to go forward without vigorousand meaningful protest? How likely is it that any government in theworld will want to open that debate? Thus, it is no surprise that the Obamaadministration has refused to prosecute any former officials of the Bushadministration, preferring to limit its investigation to those CIA agents whowent far beyond the official directives of the former administration, and it isno surprise that foreign interventions have, thus far, gone nowhere.With regard to lower-level officials, such as CIA interrogators, the analysischanges a bit, but the result remains the same. The instrumental defense “toprotect the American people” has not changed, but the effectiveness of thatdefense has changed. Any domestic prosecution will have to surmount thepractical hurdle that the President of the United States authorized these interrogations.While it is true that Nuremburg put an end to the “just followingorders” defense, it is difficult to imagine that a U.S. court would find ordersapproved by a sitting President, with support of the entire National SecurityCouncil, including the Attorney General, to be so “manifestly unlawful” 77 thata person following them would be criminally liable under the War Crimes Actor any other law. This explains why the current Attorney General has limitedinvestigations into allegations of torture to instances where agents plainlywent beyond what had been authorized by the former Bush administration.Even there, successful prosecution remains questionable.Similarly, any foreign nation attempting to exercise universal jurisdictionwill have to confront the inconvenient political fact that prosecution ofany U.S. official, at whatever level, directly drags a former president of theUnited States into the case. This is not impossible, but it becomes far moredifficult. Moreover, while foreign courts may not be subject to precisely thesame political constraints as domestic courts, nonetheless they would likelyhesitate under such circumstances. One cannot be certain, but the safe betis that no one beyond a few scapegoats following Abu Ghraib will ever beprosecuted.Thus, the Administration may have achieved what it set out to do fromthe beginning—insulate both itself and lower level officials from criminalprosecution for torture. One cannot avoid the conclusion, speculative as itmay be, that these revelations, coming when and as they did, were calculatedto end the torture debate by insulating all who participated. About the worstthat can happen has happened. Anthony Lewis says that for him, GeorgeBush will always be “the Torture President.” 78We can heap on the opprobrium, as that is all that is left. Whether disgracesuffices remains an open question. Except, given the international and

106 national lawyers guild reviewdomestic concerns, one can hope that we have seen the high tide of Americantorture and that international human rights law will begin to bite._________________notes1. See The Harris Poll #93, Majorities of Public Believe that Torture, “Rendition”and the Use of Secret Prison Camps Outside U.S. are Sometimes Justified, HarrisInteractive, (Dec. 21, 2005), at http://www.harrisinteractive.com/harris poll/index.asp?PID=621(citing American adults’ opinion on whether United States usestorture).2. Id.3. Poll Results: Waterboarding is Torture, CNN.com, at http://www.cnn.com/2007/POLITICS/11/06/waterboard.polllindex.html.4. William Glaberson, 6 at Guantanamo Said to Face Trial in 9/11 Case, N.Y. Times,Feb. 9, 2008, at Al [hereinafter Glaberson, Trial in 9/11 Case].5. Tactic Called Torture, N.Y. Times, Feb. 9, 2008, at A8.6. Martin Hodgson, US Censored for Waterboarding, The Guardian (London), Feb.7, 2008.7. Evan Wallach, Drop by Drop: Forgetting the History of Water Torture in U.S.Courts, 45 Colum. J. Transnat’l L. 468, 472 (2007).8. Id. at 477-94.9. Id. at 502-04.10. Id. at 499.11. Joseph Margulies, Guantanamo and the Abuse of Presidential Power86, 178 (2006), at 6.12. In re Guantanamo Detainee Cases, 355 F. Supp.2d 443, 474 (D. D.C. 2005).13. Ian Robbins, We Have Ways . . . How Do Interrogators Bend People to Their Will?,New Scientist, Nov. 20, 2004, at 44.14. Id.15. Editorial, Modern Barbarity; The Idea That Torture Can Be ‘Clean’ Needs Refuting,New Scientist, Feb. 23, 2008, at 3.16. Id.17. The Bush Administration chooses coercive techniques that would conventionallybe thought of as straightforwardly torturous, including water-boarding, false burial,‘Palestinian hanging’ (where the prisoner is suspended by his arms, manacledbehind his back), being left naked in a cold cell and doused with cold water, andbeing made to stand for forty hours while shackled to a cell floor. Christopher Kutz,Torture, Necessity and Existential Politics, 95 Cal. L. Rev. 235, 235-36 (2007).18. Katerina Ossenova, Spain Judge Drops Extradition Request for UK ResidentsReleased from Guantanamo, Jurist, Mar. 6, 2008, at http://jurist.law.pitt.edu/paperchase/2008/03/spain-judge-drops-extradition-request.php.19. Id.20. Stanley Milgram, Obedience to Authority: An Experimental View(2004).

u.s. war crimes: torture as official bush administration policy10721. Phillip Zimbardo, The Lucifer Effect: Understanding How Good PeopleTurn Evil (2007).22. Alfred W. Mccoy, A Question of Torture: CIA Interrogation, From theCold War to the War on Terror 48 (2006).23. Martha K. Huggins, Moral Universes of Brazilian Torturers, 67 Alb. L. Rev. 527,527-28 (2003). These factors were taken directly from her article.24. Darius Rejali, Torture, American Style – The Surprising Force Behind Torture:Democracies, Boston Globe, Dec. 16, 2007, at D1.25. Id.26. See id.27. Darius Rejali, Torture and Democracy 46 (2007).28. Bill Lambrecht, A War-Torn Document, St. Louis Post-Dispatch, Sept. 16, 2007,at B1.29. The term “‘evil-doers,’ [is] a term often used by President Bush to describe binLaden and Al Qaeda.” Anthony Shalid, Saudis Promise Stronger Role in Right onTerror, Boston Globe, Dec. 2, 2002, at A1.30. See generally John Yoo, Transferring Terrorists, 79 Notre Dame L. Rev. 1183(2004).31. Jane Mayer, Outsourcing Torture, New Yorker, Feb. 14, at 106 (quoting phoneinterview with John Yoo).32. George I. Annas, Human Rights Outlaws: Nuremberg, Geneva, and the GlobalWar on Terror, 87 B.U. L. Rev. 427, 431 (2007).33. Matthew B. Stannard, Stanford Experiment Foretold Iraq Scandal, S.F. Chron.,May 8, 2004, at A15.34. Rejali, supra note 27 46 (2007), at 554-56.35. Mark Bowden, The Dark Art of Interrogation, Atl. Monthly, Oct. 2003, at 55-56.36. James Hodge & Linda Cooper, Roots of Abu Ghraib in CIA Techniques: 50 Yearsof Refining, Teaching Torture Found in Interrogation Manuals; The U.S. andTorture; Cover Story, Nat’l Catholic Rep., Nov. 5, 2004, at 11.37. See, Prisoner Abuse: Patterns from the Past, at http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB122/ (providing KUBARK manual and 1983 Human ResourcesExploitation Manual). The term “KUBARK” is “a cryptogram, KU a randomdiptych and BARK the agency’s code word for itself.” Tim Weiner, Word forWord/Interrogation CIA Style, The Spy Agency’s Many Mean Ways to LoosenCold-War Tongues, N.Y. Times, Feb. 9, 1997, at 7.38. KUBARK Counterintelligence Interrogation 46 (Central IntelligenceAgency 1963).39. Id. at 90.40. Id. at 91.41. Id. at 94.42. Id. at 8.43. Human Resource Exploitation Training Manual (Central Intelligence Agency1983).

108 national lawyers guild review44. Prisoner Abuse: Patterns from the Past, supra note 37.45. Id.46. See McCoy, supra note 22, at 11.47. According to the US Air Force SERE Specialist Website, the first SERE trainingprogram began in 1947 at Marks AFB, Alaska. See Gosere.com, at http://www.gosere.com/medium.html (last visited Nov. 9, 2008). However, according toMichael Otterman, training to “inoculate soldiers against the stress of torture” beganin 1953, and was exported to allies in South-East Asia by the late 1950s. MichaelOtterman, American Torture: From the Cold War to Abu Ghraib andBeyond 71 (2007), at 11-12.48. See Jane Mayer, The Experiment: The Military Trains People to WithstandInterrogation. Are Those Methods Being Misused at Guantanamo?, New Yorker,July 11, 2005, at 60.49. Documents obtained by the American Civil Liberties Union quotes the formerchief interrogator saying “[w]hen I arrived at GTMO my predecessor arranged forSERE instructors to teach their techniques to the interrogators at GTMO. . . Theinstructors did give some briefings to the Joint Interrogation Group interrogators.”Plainly, SERE instructors were instrumental in transferring the knowledge of “clean”torture to Guantanamo Bay. Mark Benjamin, Torture Teachers, Salon, June 29,2006, at http://www.salon.comlnews/feature/2006/06/29/torture/.50. Richard E. Mezo, Why It Was Called ‘Water Torture,’ Wash. Post, Feb. 10, 2008,at B7.51. Id.52. A.J. Langguth, Torture’s Teachers, N.Y. Times, June 11, 1979, at A19 [hereinafterLangguth, Torture’s Teachers]; see A.J. Langguth, Hidden Terrors 25(Pantheon 1978) [hereinafter Langguth, Hidden Terrors]; Alexander Cockburn,The Wide World of Torture, Counterpunch, Nov. 9, 2001, available at http://www.counterpunch.org/torture2.html.53. See Cockburn, supra note 52.54. See Langguth, Hidden Terrors, supra note 52, at 286.55. See Otterman, supra note 47, at 76.56. See Langguth, Torture’s Teachers, supra note 52.57. See Langguth, Hidden Terrors, supra note 52, at 251-53.58. In re Guantanamo Detainee Cases, 355 F.Supp.2d 443, 474 (2005), vacated anddismissed, Boumediene v. Bush, 2007 U.S. App. Lexis 3682 (D.C. Ci., Feb 20,2007), cert. granted, 127 S.Ct. 1478, 167 L.Ed. 578 (June 29, 2007), decided 128S.Ct. 2229 (June 12, 2008).59. Margulies, supra note 11, at 5-6.60. Binyam Mohammed’s case is more fully discussed in, Alan W. Clarke, Renditionto Torture, a Critical Legal History, 62 Rutger’s L. Rev. (2009).61. Caitlin Price, White House Memos to CIA Approved Waterboarding: WashingtonPost, Jurist, Oct. 15, 2008, at http://jurist.law.pitt.edu/paperchase/2008/10/whitehouse-memos-to-cia-approved.php.Two classified memos sent from the BushAdministration to the CIA in 2003 and 2004 explicitly sanctioned the use of water-

u.s. war crimes: torture as official bush administration policy109boarding. Joby Warrick, CIA Tactics Endorsed in Secret Memos: WaterboardingGot White House Nod, Wash. Post, Oct. 15, 2008, A1.62. Jan Crawford Greenburg, Howard L. Rosenberg & Ariane de Vogue, BushAware of Advisers’ Interrogation Talks, ABC News, Apr. 11, 2008, [hereinafterBush Aware of Adviser’s Interrogation Talks] at http://abcnews.go.com/TheLaw/LawPolitics/story?id=4635175&page=1.63. Amy Goodman, On Visit to France, Donald Rumsfeld Hit with Lawsuit for Ordering,Authorizing Torture, Democracy Now, Oct. 26, 2007, http://www.democracynow.org/2007/10/26/on_visit_to_france_donald_rumsfeld.64. Jonathan H. Marks, Interrogational Neuroimaging in Counterterrorism: A “No-Brainer” or a Human Rights Hazard?, 33 Am. J.L. & Med. 483, 496 (2007).65. Adam Zagorin & Michael Duffy, Inside the Interrogation of Detainee 063, TimeMagazine, June 12, 2005, at 26.66. Jan Crawford Greenburg, Howard L. Rosenberg & Ariane de Vogue, Sources: TopBush Advisors Approved ‘Enhanced Interrogation,’ ABC News, Apr. 9, 2008,http://abcnews.go.com/TheLaw/LawPolitics/story?id=4583256&page=1.67. Bush Aware of Adviser’s Interrogation Talks, supra note 62.68. Id.69. Id.70. Id.71. Stephen Gillers, The Torture Memo, The Nation, Apr. 9, 2008, available athttp://www.thenation.com/doc/20080428/gillers.72. Scott Shane, The Question of Liability Stirs Concern at the C.I.A., N.Y. Times,Sept. 16, 2006, at A12.73. Jeffrey Smith, Worried CIA Officers Buy Legal Insurance; Plans Fund Defense inAnti-Terror Cases, Wash. Post, Sept. 11, 2006, at A1.74. 18 U.S.C. § 2441 (2006).75. Jack Balkin, War Crimes Prosecutions in the U.S.? Dream On, at Balkinization(Apr. 9, 2008), http://balkin.blogspot.com/2008/04/war-crimes-prosecutions-inus-dream-on.html(indicating that government officials will not be prosecuted forviolating War Crimes Act).76. Marty Lederman, A Dissenting View on Prosecuting the Waterboarders,Balkinization (Feb. 8, 2008) at http://balkin.blogspot.com/2008/02/dissentingview-on-prosecuting.html.77. A person following orders is not responsible, even if the orders prove unlawful, solong as they are not “manifestly unlawful.” The Nuremburg principle is not a trapfor the unwary but is rather a rule that one cannot commit an obviously criminalact and then claim that one was merely following orders. David Luban, Liberalism,Torture, and the Ticking Bomb, 91 VA. L. REV. 1425 (2005), in THE TORTUREDEBATE IN AMERICA 35, 71 (Karen J. Greenberg ed., (2006), at 55.78. Froomkin, Bush OK’d Torture Meetings, Washington Post.com, Apr. 14,2008, quoted in Anthony Lewis, The Terror President, 55 N.Y. Rev. Books7 (May 1, 2008).

Marjorie CohnTestimony on TorturePolicy before the Subcommitteeon the Constitution, CivilRights and Civil Liberties, HouseJudiciary committee, on May 6, 2008What does torture have in common with genocide, slavery, and wars ofaggression?They are all jus cogens. Jus cogens is Latin for “higher law” or “compellinglaw.” This means that no country can ever pass a law that allowstorture. There can be no immunity from criminal liability for violation of ajus cogens prohibition.The United States has always prohibited the use of torture in our Constitution,laws executive statements and judicial decisions. We have ratified threetreaties that all outlaw torture and cruel, inhuman or degrading treatment orpunishment. When the United States ratifies a treaty, it becomes part of theSupreme Law of the Land under the Supremacy Clause of the Constitution.The Convention Against Torture and Other Cruel, Inhuman or DegradingTreatment or Punishment, says, “No exceptional circumstances whatsoever,whether a state of war or a threat of war, internal political instability or anyother public emergency, may be invoked as a justification for torture.”Whether someone is a POW or not, he must always be treated humanely;there are no gaps in the Geneva Conventions. He must be protected againsttorture, mutilation, cruel treatment, and outrages upon personal dignity, particularlyhumiliating and degrading treatment under, Common Article 3. InHamdan v. Rumsfeld, the Supreme Court rejected the Bush administration’sargument that Common Article 3 doesn’t cover the prisoners at Guantánamo.Justice Kennedy wrote that violations of Common Article 3 are war crimes.We have federal laws that criminalize torture.The War Crimes Act punishes any grave breach of the Geneva Conventions,as well as any violation of Common Article 3. That includes torture,____________________Marjorie Cohn is a professor at Thomas Jefferson School of Law. At the time shegave this testimony before the Subcommittee on the Constitution, Civil Rights andCivil Liberties, House Judiciary Committee, on May 6, 2008, she was the presidentof the National Lawyers Guild.

testimony on torture policy111willfully causing great suffering or serious injury to body or health, andinhuman, humiliating or degrading treatment.The Torture Statute provides for life in prison, or even the death penaltyif the victim dies, for anyone who commits, attempts, or conspires to committorture outside the United States.The U.S. Army Field Manual’s provisions governing intelligence interrogationsprohibit the “use of force, mental torture, threats, insults, or exposureto unpleasant and inhumane treatment of any kind.” Brainwashing, mentaltorture, or any other form of mental coercion, including the use of drugs,are also prohibited.Military personnel who mistreat prisoners can be prosecuted by courtmartialunder provisions of the Uniform Code of Military Justice. Theseinclude conspiracy, cruelty and maltreatment, murder, manslaughter, maiming,sodomy, and assault.In Filartiga v. Peña-Irala, the Second Circuit declared the prohibitionagainst torture is universal, obligatory, specific and definable. Since then,every U.S. circuit court has reaffirmed that torture violates universal andcustomary international law. In the Paquete Habana, the Supreme Court heldthat customary international law is part of U.S. law.The Constitution gives Congress the power to make the laws and thePresident the duty to carry them out. Yet on February 7, 2002, PresidentBush, relying on memos by lawyers including John Yoo, announced thatthe Geneva Conventions did not apply to allegedTaliban and Al Qaeda members. Bush said, however, “As a matter ofpolicy, the United States Armed Forces shall continue to treat detainees humanelyand, to the extent appropriate and consistent with military necessity,in a manner consistent with the principles of Geneva.” But torture is neverallowed under our laws.Lawyers in the Department of Justice’s Office of Legal Counsel wrotememos at the request of high-ranking government officials in order to insulatethem from future prosecution for subjecting detainees to torture. In memosdated August 1, 2002 and March 18, 2003, former Deputy Assistant AttorneyGeneral John Yoo (Jay Bybee, now a federal judge, signed the 2002 memo),advised the Bush administration that the Department of Justice would notenforce the U.S. criminal laws against torture, assault, maiming and stalking,in the detention and interrogation of enemy combatants.The federal maiming statute makes it a crime for someone “with the intentto torture, maim, or disfigure” to “cut, bite, or slit the nose, ear or lip, or cut

112 national lawyers guild reviewout or disable the tongue, or put out or destroy an eye, or cut off or disable alimb or any member of another person.” It further prohibits individuals from“throwing or pouring upon another person any scalding water, corrosive acid,or caustic substance” with like intent.Yoo said in an interview in Esquire that “just because the statute says --that doesn’t mean you have to do it.” In a debate with Notre Dame ProfessorDoug Cassell, Yoo said there is no treaty that prohibits the President fromtorturing someone by crushing the testicles of the person’s child. In Yoo’sview, it depends on the President’s motive, notwithstanding the absoluteprohibition against torture in all circumstances.The Torture Convention defines torture as the intentional infliction ofsevere physical or mental pain or suffering. The U.S. attached an “understanding”to its ratification of the Torture Convention, which added the requirementthat the torturer “specifically” intend to inflict the severe physical ormental pain or suffering. This is a distinction without a difference for threereasons. First, under well-established principles of criminal law, a personspecifically intends to cause a result when he either consciously desires thatresult or when he knows the result is practically certain to follow. Second,unlike a “reservation” to a treaty provision, an “understanding” cannot changean international legal obligation. Third, under the Vienna Convention on theLaw of Treaties, an “understanding” that violates the object and purpose of atreaty is void. The claim that treatment of prisoners which would amount totorture under the Torture Convention does not constitute torture under the U.S.“understanding” violates the object and purpose of the Convention, whichis to ensure that “no one shall be subjected to torture or to cruel, inhuman ordegrading treatment or punishment.” The U.S. “understanding” that adds thespecific intent requirement is embodied in the U.S. Torture Statute.Nevertheless, Yoo twisted the law and redefined torture much more narrowlythan the definitions in the Convention Against Torture and the TortureStatute. Under Yoo’s definition, the victim must experience intense pain orsuffering equivalent to pain associated with serious physical injury so severethat death, organ failure or permanent damage resulting in loss of significantbody functions will likely result.Yoo wrote that self-defense or necessity could be used as a defense to warcrimes prosecutions for torture, notwithstanding the Torture Convention’sabsolute prohibition against torture in all circumstances. There can be nojustification for torture.After the exposure of the atrocities at Abu Ghraib and the publication ofthe August 1, 2002 memo, the Department of Justice knew the memo couldnot be legally defended.

testimony on torture policy113That memo was withdrawn as of June 1, 2004. A new opinion, authoredby Daniel Levin, Acting Assistant Attorney General Office of Legal Counsel,is dated December 30, 2004. It specifically rejects Yoo’s definition oftorture, and admits that a defendant’s motives to protect national securitywill not shield him from a torture prosecution. The rescission of the August2002 memo constitutes an admission by the Justice Department that the legalreasoning in that memo was wrong. But for the twenty-two months it was ineffect, it sanctioned and led to the torture of prisoners in U.S. custody.John Yoo admitted the coercive interrogation “policies were part of acommon, unifying approach to the war on terrorism.” Yoo and other Departmentof Justice lawyers, including Jay Bybee, David Addington, WilliamHaynes and Alberto Gonzalez, were part of a common plan to violate U.S.and international laws outlawing torture. It was reasonably foreseeable thatthe advice they gave would result in great physical or mental harm or deathto many detainees. Indeed, more than 100 have died, many from torture.ABC News reported last month that the National Security Council PrincipalsCommittee consisting of Dick Cheney, Condoleezza Rice, DonaldRumsfeld, Colin Powell, George Tenet, and John Ashcroft met in the WhiteHouse and micromanaged the torture of terrorism suspects by approvingspecific torture techniques such as waterboarding. Bush admitted, “yes, I’maware our national security team met on this issue. And I approved.”These top U.S. officials are liable for war crimes under the U.S. WarCrimes Act and torture under the Torture Statute. They ordered the torturethat was carried out by the interrogators. Under the doctrine of commandresponsibility, used at Nuremberg and enshrined in the Army Field Manual,commanders, all the way up the chain of command to the commander in chief,can be liable for war crimes if they knew or should have known their subordinateswould commit them, and they did nothing to stop or prevent it.The Bush officials ordered the torture after seeking legal cover fromtheir lawyers.But Yoo and the other Justice Department lawyers who wrote the enablingmemos are also liable for the same offenses. They were an integral part of acriminal conspiracy to violate our criminal laws. Yoo admitted in an Esquireinterview last month that he knew interrogators would take action based onwhat he advised.The President can no more order the commission of torture than he canorder the commission of genocide, or establish a system of slavery, or wagea war of aggression.

114 national lawyers guild reviewA Select Committee of Congress should launch an immediate and thoroughinvestigation of the circumstances under which torture was authorizedand rationalized. The high officials of our government and their lawyerswho advised them should be investigated and prosecuted by a Special Prosecutor,independent of the Justice Department, for their crimes. John Yoo,Jay Byee, and David Addington should be subjected to particular scrutinybecause of the seriousness of their roles in misusing the rule of law and legalanalysis to justify torture and other crimes in flagrant violation of domesticand international law.Give Back to the GuildFor information about opportunities to support the National Lawyers Guildthrough planned giving, contact Marjorie Suisman, Esq. at (617) 589-3836.Bequests: Include the National Lawyers Guild in your will or estate plan and leavea legacy of defending civil rights and civil liberties to future generations. Requestinformation on making gifts of life insurance, retirement plan benefits, stock,property, cash or proceeds from a charitable trust.Stock Gifts: Save on capital gains taxes and make your contribution withstock or mutual fund shares instead of cash. If you have appreciated securitiesworth more than you paid for them, you gain a charitable deduction for the fullfair market value of the shares and avoid capital gains tax.Charitable Gift Annuity: Establish a charitable gift annuity and you, orsomeone you choose, will receive fixed income for life. You can use your incomepayments for current financial needs, or defer them until you retire, and you qualifyfor an income tax deduction the year you make the gift.Do you value the work that the National Lawyers Guild does?Has a Guild attorney helped you or someone you know?Please help the Guild continue its work—work it has been doing for over 65 years and,with your support, will continue doing.As long as we are needed, we will be there.

Henry M. WillisORGANIZING—WITH OR WITHOUTTHE NLRB: The Short-TermProspects for RestoringWorkers’ Right to OrganizeThe National Labor Relations Act came into being 75 years ago,at a time when workers had no legally protected right to organize and theonly way to win union recognition for most industrial workers was to strikefor it. The year before the passage of the Act had seen massive strikes overthe right to union representation that sometimes resembled insurrections, asgovernors imposed martial law while strikers fought strikebreakers and thepolice. 1 Congress hoped to bring that sort of economic warfare within limitsby encouraging collective bargaining as a means of resolving labor disputesand by giving workers a peaceful, effective method to choose whether theywanted union representation. 2Has the Act succeeded? Twenty-five years after passage of the Act, itappeared to have delivered both stable labor relations and mature collectivebargaining relationships, at least in the most organized areas of the economy. 3By the fiftieth anniversary of the Act, however, that optimism had almostentirely disappeared as the rate of unionization had dropped steadily, while aRepublican filibuster had stopped the first serious effort by labor to strengthenthe NLRA’s protections for wrongly fired employees. 4And now, on the seventy-fifth anniversary of the NLRA, both the Actand the NLRB look less relevant than ever. The shortcomings of the Actare clearest when it comes to protecting workers’ right to organize: as onerecent study finds, employers made illegal threats of plant closures in morethan half of organizing drives and fired union supporters in more than a thirdof them. 5 These problems are even more acute in those low-wage industriesin which a large number of workers are undocumented. 6The Board has no effective remedies for most of these violations: Gissel7 bargaining orders typically come years after the original campaign hasbeen defeated, while appeals to the Board and the courts can force firedworkers to wait years for reinstatement and backpay. Not surprisingly, thenumber of NLRB-conducted elections has dropped precipitously in the past_________________Henry Willis is a labor lawyer practicing in Los Angeles and a former co-editor of theNational Lawyers Guild Employee and Union Member Guide to Labor Law.

116 national lawyers guild reviewseveral decades, from 7,733 elections in 1970 to 1510⎯less than one fifthas many⎯in 2007.The recess appointments of two new Board members promise changesin a number of recent Board decisions, particularly those in which the lastBoard raised new obstacles to organizing. 8 But even a wholesale reversalof all of the unfavorable decisions of the last decade would not address thefundamental problems that are making the Board and the Act irrelevant.So where do we go from here? There have been any number of proposalsfrom labor and its allies for revitalizing labor law over the past severaldecades; this note offers a short survey of those that propose to change therules governing organizing, from the mechanics of choosing a representativeto the ways that the law is enforced.A. More vigorous enforcement of the ActThe labor law reform package that Senator Hatch and others filibusteredin 1978 would have forced the NLRB to take an employer’s unlawful dischargeof employees during a union organizing drive as seriously as a union’ssecondary boycott activity, while awarding double backpay to unlawfullyfired employees. While that effort died more than thirty years ago, the Boardstill has the power to seek the extraordinary remedies—and, in particular,Section 10(j) injunctions—that Congress has already given it. 9The limitations of this strategy are obvious: while a court order requiringan employer to reinstate unlawfully fired employees goes a long way towardrestoring the status quo, it does not fully erase the message that the originalunlawful termination conveyed. 10 Similarly, a Gissel order compelling theemployer to bargain with the union, brings with it its own problems: it turnsemployees’ right to union representation into a claim, subject to being forfeitedif that claim ends up in front of a hostile court. 11B. The Employee Free Choice ActCard checks are nothing new—the UAW’s first collective bargainingagreement with General Motors, which gave it the right to represent itsmembers in the grievance procedure, enabled the union to obtain recognitionthroughout GM’s assembly plants by proving that it represented a majority ofworkers. Other unions, such as the United Food and Commercial Workers,have used card checks for the last thirty years to bring new stores under thecoverage of a multi-store contract. 12More recently, however, unions have negotiated card check agreementswith employers as an alternative to conventional NLRB election campaigns.Unions not only win roughly 75 percent of all card check campaigns, 13 but

organizing—with or without the nlrb117can avoid the years of delay and uncertainty that come with conventionalNLRB elections. 14The Board’s 2007 decision in Dana Corp., however, turns voluntary recognitioninto an invitation to a decertification petition. The Board had, untilDana Corp., given unions an irrebuttable presumption of majority status fora reasonable period of time after receiving voluntary recognition in order togive the parties time to negotiate a collective bargaining agreement. 15 TheBoard reversed that in Dana Corp. by requiring the parties to post a noticethat invites employees to file a decertification petition within 45 days. Ifthe parties do not post the notice then not only is there no presumption ofmajority support while the parties bargain, but any contract that the partiesnegotiate will not enjoy the protection of the contract bar rule.It is hard to overstate the perverseness of that decision’s logic. Years ofdealing with an NLRB that was unable to protect workers from anti-unionretaliation have driven down the number of NLRB-conducted elections bymore than 80 percent over the past forty years. None of that experience madeany impression on the Board that decided Dana Corp.; on the contrary, itrelied on the Supreme Court’s decision in Linden Lumber v. NLRB, 16 tohold that its election procedures were so superior to all other methods forgauging employees’ desire for union representation that the employees whohad asked their employer to recognize the union must be allowed the rightto a secret ballot election, even though the employer (1) waived any right toask for an election and (2) lawfully granted recognition. ILGWU v. NLRB(Bernhard-Altmann Texas Corp.), 17 And the type of election that the DanaBoard thought was the preferred method for testing employees’ desire forunion representation? A decertification election.The Employee Free Choice Act would not only reverse Dana Corp. butextend the card check procedure to all employers, not just those that hadagreed to neutrality or card check agreements. It would also reduce theincentive for employers to bargain in bad faith in the negotiations for a firstcontract by providing for interest arbitration if the parties could not reachagreement.EFCA is, for the time being, on the back burner, and is likely to stay therefor the foreseeable future in a mid-term election year. We are more likelyto see Congress debate the issue if and when the new Board reverses DanaCorp. than a debate about EFCA itself.C. Instant electionsProfessor Weiler has made a similar proposal: hold the election as soonas possible after the union files its petition so that employees are not sub-

118 national lawyers guild reviewjected to the sort of unlawful threats and promises that Bronfenbrenner’sstudy shows are now par for the course. 16 Weiler’s proposal would, bynecessity, take the employer out of the administrative hearings that lead upto the election and, to a great extent, the campaigning in the days before thevote. That would mean that the employer not only does not get to weigh inon the appropriateness of the unit sought by the union or the supervisory ormanagerial or confidential status of any particular employee, but would nothave the opportunity to intimidate employees with threats of plant closureor timely discharges of union supporters. 17Either of these changes would go a long way toward the goal of allowingemployees to make up their own minds in an atmosphere free from coercion.We have, however, been down this road before: the 1977 labor law reformbill originally proposed a fifteen day timetable, which the proponents of thebill then extended to twenty-five, then thirty, and finally thirty-five days tomeet their opponents’ complaint that there was something unfair about notallowing the employer the right to voice its full-throated opposition to theunion by every lawful means available to it. 18 They used the rhetoric of theFirst Amendment and democracy to argue that there was something unfairabout not allowing the employer to use its free speech rights to communicatewith workers—roughly the same arguments that the opponents of EFCA areraising now when arguing that there is something inherently suspect abouta card check rather than a secret ballot election.The opponents of quick elections start from a false premise: the ideathat the employer should have an equal say in the Board’s definition of theunit that the union proposes to represent. There is no principled reason, totake a familiar example, why an employer’s preference for a multi-locationbargaining unit should make a difference if the union is seeking a singlelocationunit; the Board should accept the union’s proposed unit, so long asit does not offend any statutory restrictions, 19 and leave any individualizedissues, such as the supervisory status of particular employees, to be resolvedthrough the challenged ballot procedure.Employers couple their argument that the employer must be given a voicein the definition of the bargaining unit with an equally dubious proposition:that the First Amendment not only bars the NLRB from preventing themfrom speaking to their employees about the merits of unionization, 20 but thatit requires the NLRB to make sure that they have enough time to drive thosepoints home. Employers are not, on the other hand, asked to make the samesorts of concessions to unions: on the contrary, unions are not allowed ontothe employer’s property to campaign, 21 much less allowed the right to attendthe employer’s captive audience meetings with employees.

organizing—with or without the nlrb119But while quick elections would cure many of the problems with thecurrent state of the law, the Board has become so accustomed to allowingemployers to thrust themselves into these issues that the habit of accommodatingtheir interests has become part of the NLRB’s DNA and changingthis would require rewriting the Board’s rules and regulations from scratch. 22Which would probably be a good thing in and of itself, if for no other reasonthan to rouse the Board out of its current malaise.D. Privatizing the ActFinally, there are some commentators would shake up the current systemeven further by eliminating the NLRB’s exclusive jurisdiction to enforceSection 8(a)(3) and allowing private suit instead. 23 In addition to shiftingresponsibility for enforcement of that part of the Act to the District Courts,these reformers would also give the courts the power to award tort remedies,attorneys’ fees and punitive damages.This proposal has the least likelihood of passage of all of the proposedreforms—none of which, we should remember, have actually been enacted inthe past fifty years. It is also the most dubious: the courts are, if the experienceof the last seventy-five years is any guide, more conservative than theBoard on almost every issue, from finding retaliatory motives to developingthe substantive law in this area. The Board, with all its faults, is still betterthan the courts, for nearly the same reasons as 75 years ago. 24In addition, while opening up the field to plaintiffs’ employment lawyerswould benefit some workers, it would also run counter to the basic premisesof the Act. The lawyer representing a victim of discrimination is often moreinterested in recovering damages than in winning reinstatement. 25 Thatindividualistic approach to litigation of these claims might develop somegood case law and might give employers a real incentive not to discriminateagainst union activists, but it will not help workers exercise the rights thatthe NLRA promises.E. Starting OverIn the days after the catastrophe at the Massey Energy mine in WestVirginia that killed 29 miners, news outlets ran the story of the Mine Workers’three failed organizing drives at that mine. The Union lost each ofthem, despite having support from a majority of the miners according toMine Worker officials, when the Employer threatened to close the mine ifit went union. 26It does not take a change in the law to make that sort of threat unlawful.It should not take a change in the law to get the Board to force the employer

120 national lawyers guild reviewto do more than post a notice or submit to a rerun election for threateningworkers’ jobs. Unions should not have to wait for the Board to rediscoverthe basic purposes it was created to enforce.But the fact is that the Board has lost its ability to compel employers torespect the law, based on the minimal remedies and long delays that workerscan expect when they turn to the NLRB. While labor law reform couldchange those calculations by eliminating the opportunities for delay andintimidation that employers have become experts at exploiting, we mustrelearn the methods that unions used to organize without relying on theBoard—building alliances within the communities where our members live,using economic action when it will do the most good and taking the fight toemployers wherever they are vulnerable. There is, of course, no cookbookfor what works and what doesn’t—and those topics are for another, muchlonger paper.___________________NOTES1. Of the hundreds of histories of this era, Irving Bernstein’s The Turbulent Yearsoffers perhaps the most accessible account of not only the general strikes in Toledo,Minneapolis and San Francisco in 1934, but also the hundreds of smaller battlesin other industries that helped bring about the passage of the Wagner Act. IrvingBernstein, The Turbulent Years: A History of the American Worker,1933-1941 (1970).2. As Representative Connery of Massachusetts, Chair of the House Labor Committeeand a sponsor of the House version of the bill that eventually became the WagnerAct, said on the floor of the House:Mr. Speaker, a labor man in whom I have the greatest confidence said to me2 days ago, “You have seen Toledo, Minneapolis, and San Francisco. That ismild. You have not yet seen the gates of hell opened, and that is what is goingto happen from now on unless the Congress of the United States passes laborlegislation to cure the evils which are existing in industry and which are drivingthese workers to desperation.78 Cong. Rec. 9888 (May 29, 1934).3. Professor Michael Gottesman, looking back a third of a century later, describedthat time as “the halcyon days, [when] [u]nion density was near its all-time high,[and] [t]he Steelworkers Trilogy had just been decided, in which the SupremeCourt waxed romantic about collective bargaining and labor arbitration. . . . Ithought the National Labor Relations Act . . . , and the system of collective bargainingit established and fostered, an unqualified triumph.” Michael Gottesman,In Despair, Starting Over: Imagining a Labor Law for Unorganized Workers,69 Chi.-Kent L. Rev. 59 (1993). The Hon. Joseph Grodin, former Justice of theCalifornia Supreme Court, similarly recalls how he expected, when he beganrepresenting unions more than fifty years ago, that the percentage of private sectorunion members would double, not decline, in the decades to follow. Joseph

organizing—with or without the nlrb121Grodin, Labor and Employment Law—The Next Twenty-five Years, 22 Cal. Lab.& Emp. L. 1 (2008).4. Paul Weiler, Promises To Keep: Securing Workers’ Rights To Self-OrganizationUnder The NLRA, 96 Harv. L. Rev. 1769 (1983).5. Kate Bronfenbrenner, No Holds Barred: The Intensification of Employer Oppositionto Organizing, Economic Policy Institute (2009) at http://www.epi.org/publications/entry/bp235/.As Bronfenbrenner’s study indicates, things appear to be gettingworse: while employers continue to use “softer” tactics, such as promises to improvewages, harsher tactics are becoming more commonplace. Id. at 2, 13-15.6. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 122 S.Ct. 1275, 152L.Ed.2d 271 (2002) effectively bars any backpay remedy for undocumented workersfired in violation of the NLRA. The employers covered by Bronfenbrenner’sstudy threatened to call ICE in more than half of organizing campaigns in whichundocumented workers made up more than half of the workforce. Bronfenbrenner,supra note 5 at 12.7. NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1968).It can take years for the Board to issue a Gissel order, even without allowing for theyears it can take to exhaust all of her possibilities. See, e.g., American DirectionalBoring, Inc., 353 NLRB No. 21 (2008) (Board issues Gissel order to remedy unfairlabor practices committed during 2003 election). And unions that obtain Gisselbargaining orders not only face years of delay in obtaining court enforcement ofthe Board’s order, but may have any bargaining order taken away from them onappeal on the ground that employee turnover or the passage of time has destroyedthe original justification for a bargaining order. See, e.g., Overnite TransportationCo., 280 F.3d 417 (4th Cir. 2002); and see Jonbil, Inc., 332 NLRB 652 (2000)(bargaining order justified, but rejected as counterproductive in light of substantialdelays in Board’s handling of the case at the administrative level).8. One of the first decisions likely to be reconsidered by the new Board will be theBush Board’s decision in Brown University, 342 NLRB 483 (2004), which foundthat graduate students employees were not “employees” within the meaning of theAct; the UAW has announced that it intends to use the Regional Director’s dismissalof its petition to represent the graduate student employees as the vehicle to seekreversal of the decision in Brown. (Available at http://www.nlrb.gov/shared_files/Press%20Releases/2010/R-2748.pdf) Other decisions relating to organizing likelyto be reconsidered by the new Board include:Dana Corp., 351 NLRB 434 (2007). Dana does not bar voluntary recognition ofunions on a showing of majority support, but treats it as inherently suspect, requiringthe parties to notify both employees and the Board of the agreement and allowingdecertification petitions to be filed within the forty-five days of that posting.St. George Warehouse, 351 NLRB 961 (2007). St. George Warehouse reversesthe rule that failure to mitigate is an affirmative defense, which requires proof bythe employer that an employee has failed to make reasonable efforts to seek work,by shifting the burden to the employee and the General Counsel.Toering Electric Co., 351 NLRB 225 (2007) and Oil Capitol Sheet Metal, 349 NLRB1348 (2007). Toering starts from the premise, rejected by the Supreme Court in

122 national lawyers guild reviewNLRB v. Town & Country Electric, 516 U.S. 85, 116 S.Ct. 450, 133 L.Ed.2d 371(1995), that “salts” who apply for work are by definition disloyal, and therefore notentitled to the protection of the Act if they did not intend to take the job if offered.Oil Capitol adopts a different rule for calculating salts’ backpay that would allowemployers to treat an unfair labor practice charge for firing a salt as if it were aparking ticket.9. Scott v. Stephen Dunn & Associates, 241 F.3d 652 (9th Cir. 2001).10. As Professor Weiler points out, reinstatement does not make the unlawfully vindictiveemployer any less hostile to that employee or the right to organize. Only 40percent of eligible workers take the offer of reinstatement; of those 80 percent aregone within five years. Weiler, supra note 4 at 1791-92. Any delay on the Board’spart only drives those numbers down further.11. And neither a Board order nor a court order can overcome the paradox at the heartof any Gissel order: if these employees are not resolute enough to face up to theemployer’s violations of the Act, then are they resolute enough to strike when theemployer bargains in bad faith? Weiler, supra note 4 at at 1794-95.12. See, Houston Division, Kroger Co., 219 NLRB 388 (1975).13. Adrienne E. Eaton and Jill Kriesky, Union Organizing Under Neutrality and CardCheck Agreements, 55 Industrial and Labor Relations Rev. 42, 51-52 (2001).Unions win approximately 50% of elections conducted by the NLRB, not countingthose campaigns that end without the filing of a petition. Id. at 55.14. According to one study, unions lose 2.5 percent of their support for every monthbetween the filing of a petition and the holding of an election solely as a consequenceof delay. Weiler, Promises to Keep, 96 Harv. L. Rev. at 1777. Unions face evenlonger delays following their election victories when employers file objections withthe NLRB and challenge union victories in the courts.15. Keller Plastics Eastern, Inc., 157 NLRB 583, 587 (1966).16. Linden Lumber v. NLRB,419 U.S. 301, 95 S.Ct. 429, 42 L.Ed.2d 465 (1974).17. ILGWU v. NLRB (Bernhard-Altmann Texas Corp.), 366 U.S. 731, 81 S.Ct. 1613,6 L.Ed.2d 762 (1961).16. Weiler, supra note 4 at 1811-16.17. Kate Bronfenbrenner’s research indicates, moreover, that employers are increasinglylaunching their opposition campaigns—and, judging from the Board’s records, theirunlawful tactics—before the union even files its petition. Bronfenbrenner, supranote 5 at 20-21.18. Weiler, supra note 4 at 1812.19. See, e.g., NLRA § 2(3) (statutory definition of employee excludes supervisors,farm workers, domestic workers and some relatives of the employer) § 9(b)(1)(professionals may only be included in a unit with non-professional employees ifallowed to vote separately for inclusion); § 9(b)(3) (guards may not be included inunit with non-guards or represented by a union that represents non-guards);20. NLRB v. Virginia Electric & Power Co., 314 U.S. 469, 62 S.Ct. 344, 86 L.Ed. 348(1941).21. Lechmere, Inc. v. NLRB, 502 U.S. 527, 112 S.Ct. 841, 117 L.Ed.2d 79 (1992).

organizing—with or without the nlrb12322. The Board has the power to define appropriate units by regulation, something ithas done in the case of acute care hospitals. American Hospital Association v.National Labor Relations Board, 499 U.S. 606, 111 S.Ct. 1539, 113 L.Ed.2d 675(1991) (approving 29 CFR § 103.30). While the hospital has the right participatein the hearing, and can ask for a full-blown pre-election hearing on unit issues ifit can show that there are extraordinary circumstances that require modificationof one of the standard eight units, it no longer has the opportunity to turn thesehearings into marathons lasting months or years, as some employers did before thepromulgation of the rule.23. Cynthia Estlund, The Ossification of American Labor Law, 102 Colum. L. Rev.1527, 1527-28 (2002).24. While there are innumerable reasons why the NLRB finds the facts differently thancourts and draws different conclusions from them, one important considerationis the sheer volume of cases that the Board sees. The NLRB has, over the years,developed a body of law on issues such as animus and pretext based on thousandsof cases that have come before it.That constant exposure to all of the varieties of anti-union discrimination and thejustifications offered it by employers not only gives the Board a practical expertisethat district courts simply do not have, but even has a bearing on the way that appellatejudges decide labor law cases. As Brudney, Schiavoni, and Merritt note intheir study of over 1200 labor law cases decided by the circuit courts from 1986through 1993,appellate judges with experience as a management-side attorney inNLRA matters were more likely to side with unions, even to the extent of reversingthe NLRB, than their colleagues with employment law experience that did notinclude NLRA. James J. Brudney et al., Judicial Hostility Toward Labor Unions?Applying the Social Background Model to a Celebrated Concern, Ohio St. U. L. J.,1675 (1999) available at http://www.bna.com/bnabooks/ababna/nlra/2000/judhos.pdf.25. Indeed, as Weiler points out, even the individual remedy of reinstatement falls shortof undoing the harm that discharging a union activist can do to an organizing drive.Weiler, supra note 4 at 1788-89.26. Art Levine, Missing Lesson From the Mine Tragedy: Union-Busting = Death,Truthout, April 12, 2010, at http://www.truth-out.org/missing-lesson-frommine-tragedy-union-busting-death58501.

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David GespassBook Review: TheAssassination ofFred HamptonThe Assassination of Fred Hampton: How the FBI and the ChicagoPolice Murdered a Black Panther by Jeffrey Haas; Chicago:Lawrence Hill Books, 2009. 424 pages.Fred Hampton was twenty-one years old in 1969, but already a leader inhis Chicago community. At the time of his death, he was chairman of theIllinois Black Panther Party and an organizer of the Panthers’ free lunchprogram and medical clinic. He taught political education classes daily andhad negotiated a non-aggression pact among Chicago’s street gangs. His accomplishments,his oratorical gifts and his implacable hatred of exploitationand oppression made him a target of the FBI’s counter-intelligence program(COINTELPRO), which did far more than gather intelligence. It utilizedagents provocateurs to foment antagonism and to disrupt the activities ofradicals and leftists. When those efforts failed, it engaged in political assassinations,including that of Fred Hampton, murdered while he slept —likelyhaving been drugged—by the FBI and Chicago police agents who broke inhis door, shot him and Mark Clark, and then claimed they were defendingthemselves in a shootout. Their claims began to fall apart almost immediately,as supporters got to his apartment before evidence had been removed anddemonstrated, among other things, that virtually all the bullet holes that thestate’s attorney claimed proved the police were shot at were caused by shotsfired into the apartment from outside. Regardless, no police agent was everprosecuted criminally for the killings. The only measure of justice for thefamilies of Hampton and Clark came, ten years later, from a law suit initiatedby Chicago’s newly-formed People’s Law Office. Jeff Haas, one of the PLO’sfounders, tells the story in his book, “The Assassination of Fred Hampton:How the FBI and the Chicago Police Murdered a Black Panther.”I read Jeff’s account in November 2009, just after Imam Luqman AmeenAbdullah was killed in an FBI raid. So, while I am old enough to recall FredHampton’s death, Jeff’s account, riveting as it is, did not strike me simply asa story from a bygone era where J. Edgar Hoover’s FBI was exempt from thescrutiny of civilization and free to trample on the rights of citizens. Rather,___________________David Gespass practices law in Birmingham, Alabama and is president of the NationalLawyers Guild. He can be reached at ThePasss@aol.com.

126 national lawyers guild reviewit is a cautionary tale of just how far elements in the government will goin their attempts to assassinate not just people, but ideas. The old saying isthat you can kill the revolutionary, but you can’t kill the revolution. You canhowever, as Hampton’s death reminds us, certainly impede the revolutionby killing the revolutionary.Fred Hampton was a remarkable figure, already a nonpareil leader andorganizer when he was killed at age twenty-one. He had, before his death,accomplished more than most of us do over decades. At a time when EldridgeCleaver was saying the only position for women in the revolution was prone,he defended the dignity of Panther women in Chicago and insured that theircontributions were real and appreciated. He was principally responsible forbuilding a thriving and vigorous organization in Chicago that both served thepoor and organized them to free themselves. In the last few years, the federalgovernment and various local governments have paid millions upon millionsof dollars in damages for violating the rights of protesters at various demonstrations.In fact, St. Paul required the Republican National Committee hadto get a $10 million insurance policy to pay any post-convention judgments,demonstrating (as it were) with crystal clarity that payment of those judgmentsis, as far as the government is concerned, just a cost of doing business. Theidea is to keep numbers of protesters down with threats of prosecution whileseparating those first being roused to protest from the veterans.The government did not expect to be exposed when it executed FredHampton, but its intent was the same – to limit resistance. In that, it succeeded.His death resulted in the effective quashing of the Panthers in Chicago.Only a cynic would imply that another difference is that the people whoare being arrested and are recovering damages are mainly white and oftenfrom relatively privileged backgrounds, while Fred Hampton grew up aworking class African-American who organized in the ghetto. Only a cynicwould think it more than coincidence that Imam Abdullah was also African-American and was working in a city ravaged by the economic crisis. Andonly the most cynical of cynics would speculate that John Burge’s reign ofterror and torture in Chicago, bore any relationship to the FBI assassinationof Fred Hampton.So, let us turn from such wild speculation that we may not be such a“post-racial” society as the mass media have proclaimed after the electionof Barack Obama and that there are people in this country who should fear,rather than respect and rely on, the police. Rather, let us discuss the story Jefftells. It is a legal drama worthy of Scott Turow, John Grisham or RichardNorth Patterson, full of plot twists, intrigue, even a little oblique sex and,

the assassination of fred hampton127if not exactly a surprise ending, a somewhat unexpected one which reallysums up the whole sordid tale.What distinguishes it, of course, that it is a true story told by one of theprincipals. The attorneys of the People’s Law Office were barely out oflaw school when they filed suit on behalf of the families of Fred Hamptonand Mark Clark. When the case settled more than a decade later, they wereexperienced—and brilliant—lawyers. Thomas Edison said that genius isone percent inspiration and ninety-nine percent perspiration. The PLO addsanother element, commitment to its clients and to a better society. Its commitmentto exposing the criminal acts of the FBI and Chicago police wascombined with painstaking research, review of every record laboriouslyuncovered and a refusal to give up. Jeff’s account of the struggle is told withall the skill of the best authors of legal thrillers, but it has an ingredient theylack. It also inspires. For those of us who were around back then, it rekindlesour youthful ardor. For those who were not, it still can light a fire. Guild Notesis the quarterly organizational and programmaticpublication of the NATIONAL LAWYERS GUILD.ISSN 0148-0588. Free to members. Subscriptionrates to non-member individuals $50 per year; tolibraries and institutions $75.00 per year.Order through your subscription agent or directfrom:GUILD NOTES132 Nassau Street, Suite 922, New York, NY 10038email: nlgno@nlg.orgweb: www.nlg.org

editor’s preface continueddible and impotent. In this way Citizens United scorns democracy and furthertilts the table toward an already strong and expanding corporate plutocracythat, by dint of sheer wealth, will now be even more capable of dominatingAmerican political discourse in favor of its own economic interests. Withthis decision the Court has interpreted the First Amendment as the right ofthe people to whisper among the throng at one of the two parties’ nationalpolitical conventions while corporate wealth and its flunkeys orate onstagebehind the din of bought-and-paid-for microphones. This issue closes withMr. Gespass’ review of Jeffrey Haas’ detailed exposé of one of twentiethcenturyAmerica’s most notorious and dispiriting acts of political murder,The Assassination of Fred Hampton.The second feature in this issue addresses the troubling trend toward theprivatization of the U.S. prison system. In America putting people in prisonis big business and, when it comes to contracts for building and operatingour houses of correction, is often open to the highest bidder. One of the morevexing moral perversities of U.S. state capitalism is that certain powerful privatecompanies, capable of influencing government, benefit financially whenthe state imprisons its own people. This mercenary incentive to constantlybuild and expand prison facilities and inmate populations while discouragingnon-punitive ways to reduce crime is nothing new. Prisons have beencontracting with private enterprise for goods and services in this country forcenturies. Whenever a judge’s gavel falls somewhere a wallet gets fatter.However, the social and ethical faults stemming from the artificial union ofpunishment and profit known as the prison-industrial complex have recentlyreached an alarming crescendo with the proliferation of fully privatized, forprofitprisons. In “Crime and Punishment in Private Prisons,” Matt Mulch, adeputy public defender in Colorado, chronicles the lengthy history of privateprisons in the United States in an effort to explain the profound economicand moral consequences concomitant with turning our prison system into acommercial enterprise.On April 16, 2009 President Obama uttered the falsest words of his youngpresidency when, announcing his administration’s refusal to investigatethe state torture program of his predecessor, he claimed “[N]othing willbe gained by spending our time and energy laying blame for the past. Ournational greatness is embedded in America’s ability to right its course inconcert with our core values, and to move forward with confidence.” 1 Thepresident fails to recognize that when the government violates its own lawsby instituting a political strongman’s buffet of inhumane military and intelligenceprograms repugnant to our values we are compelled to reexaminewhat America’s core values in fact are.

editor’s preface continuedFor this a meaningful investigation is required and, if one of those valuesis going to continue to be the rule of law, prosecutions must occur when thefacts compel them. Professor Marjorie Cohn, immediate past Guild Presidentwas correct in her 2008 testimony before the House Subcommittee onthe Constitution, Civil Rights and Civil Liberties, that torture is, along withgenocide, slavery, and aggressive war, a violation of jus cogens, the highestand most basic species of international law. 2 Professor Cohn’s completestatement to the House Subcommittee is included in this issue.When it comes to issues fundamental to the moral and political identityof a nation, like what to do with those who have contorted America’s foundingcharter, the Constitution, to allow for war crimes and torture, the U.S.cannot “right its course” without first dealing rightly with those who haveperpetrated such bold and terrible wrongs. And we cannot “move forwardwith confidence” when failing to redress these wrongs makes plain to theworld that our core values are still an open question. With the next featurein this issue, “U.S. War Crimes: Torture as Official Bush AdministrationPolicy,” Guild member and Utah Valley University Professor Alan Clarkecontinues this law review’s effort to understand the origin, details and legalramifications of U.S. interrogation policy during the “war on terror.”After decades of rancorous and often violent labor disputes and in themidst of the Great Depression, in 1935 congress passed the National LaborRelations Act. The new law was meant to redefine the relationship betweenworkers and management, confirming and codifying the rights of workers toorganize and bargain collectively with their employers. It was at the time seenas a watershed moment in the history of workers’ rights. Seventy-five yearslater, with union-allergic Wal-Mart as America’s largest private employer,and our political discourse dominated by thoroughly corporatized news mediathat gives little attention to the values of organized labor, the struggle tobring anything like genuine democracy to the American workplace remainsdaunting and, for workers seeking to vindicate their rights, is often paid forat great personal cost. In the next feature, “Organizing—With or Without theNLRB,” labor attorney Henry M. Willis reflects on the unfulfilled promiseof the NLRA.—Nathan Goetting, editor-in-chief_______________NOTES1. Dahlia Lithwick, Over It, Slate, Apr. 17, 2009, at http://www.slate.com/id/2216323.2. Congressional Testimony of Marjorie Cohn on Torture Policy, available at http://www.marjoriecohn.com/2008/05/congressional-testimony-of-marjorie.html (May6, 2008, 22:56 EST).

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