The Wages of 9/11

I felt a surge of shame earlier this week when I read an account of the 5-to-4 U.S. Supreme Court decision authorizing prison officials to strip-search any of the 13 million people arrested every year. The case was brought by Albert W. Florence, who had been mistakenly arrested for failing to pay a court fine which he had, in fact, paid — and then was forced to squat naked and cough in front of guards. The infraction could have been even flimsier: Justice Stephen Breyer pointed out that one person had been subjected to this humiliating invasion of privacy after "riding a bicycle without an audible bell." Justice Anthony Kennedy, who wrote the majority decision, rebutted this objection by noting that "people detained for minor offenses can turn out to be the most devious and dangerous criminals."

Florence was not, of course, a suspected terrorist, but the case was a reminder of how America’s crackdown on crime over the last generation has converged with the atmosphere of fear and suspicion produced by 9/11 to make the United States a terribly harsh and forbidding place for anyone who falls afoul of the law. Indeed, the Washington Post noted that the court’s decision "continued a trend that began after the Sept. 11, 2001 attacks of giving jailers more leeway in searching those picked up even for the most minor offenses." And Kennedy’s reasoning — better to subject an entire population to degrading treatment than to overlook one dangerous actor — is precisely the logic that led the Bush administration to detain vast numbers of perfectly innocent people on suspicion of terrorist activity after 9/11, or to subject millions of visitors to the United States to an exhaustive grilling by customs officials lest a terrorist slip through the net.

As a candidate, Barack Obama insisted that the United States was paying a heavy reputational price for violating international standards of human rights. "We will again set an example for the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary," he promised in one campaign speech. Obama is not, of course, responsible for the Supreme Court’s conservative majority, which carried the day on Florence. But he has not, with a few exceptions, changed the practices, or the underlying logic, that make the United States such an outlier in the West. Obama has not done nearly as much as he expected, and his supporters hoped, to restore the damage incurred by the Bush administration. This has been one of the great failures of his time in office.

I asked Alison Parker, director of U.S. programs for Human Rights Watch, how she graded the Obama administration on reforming abusive human rights practices at home. On criminal justice matters, she said, Obama deserves credit for reducing mandatory sentences for crimes involving crack cocaine, where the defendants are mostly black, which had been far longer than those for powder cocaine, where they are mostly white. On the treatment of immigrants, she said, "It’s been mostly a steady state from what we experienced under Bush." And on counterterrorism, it’s more mixed: The administration has banned torture; promised to end the practice of transferring prisoners captured on the battlefield to countries that might torture them (but is still relying on dubious official assurances from those allies); and has failed to close Guantánamo, end military tribunals, or prohibit indefinite detention. What’s more, the Obama administration, like its predecessor, has refused to grant the U.N. Rapporteur on Torture access to Guantánamo. It would be a middling record, and perhaps defensible — if Obama hadn’t promised such a decisive break.

There is of course no crisp answer, mathematical or metaphysical, to the question of how far the state may deprive an individual of his or her dignity, or even selfhood, in the name of protecting the larger community. But the balance in the United States is very different from what it is elsewhere in the West. The New York Times recently ran an eye-opening article noting that the United States has imposed solitary confinement on at least 25,000 prisoners, and perhaps many more, often for years or even decades at a time. And that doesn’t even include Guantánamo, where some detainees are held in solitary for years on end.

In a 2011 report, Juan Mendez, the U.N. Special Rapporteur on Torture, noted that prolonged solitary confinement has become a favored instrument of the war on terror around the globe. Mendez detailed the psychological devastation wrought by even short spells of solitary, and concluded that any period exceeding 15 days increased the risk of grave harm "that may constitute cruel, inhuman, or degrading treatment or punishment, or even torture." Countries like Kazakhstan figured prominently in the report — as, of course, did the United States. Fine company, indeed. Perhaps this helps explain why the Obama administration has refused to grant Mendez unimpeded access to the prisoners at Guantánamo.

The United States is exceptional not only in the use of solitary confinement, but in the willingness to subject juveniles to this excruciating form of punishment. A recent Human Rights Watch report on the 2,570 youth offenders currently serving life sentences without the chance of parole — yes, you read that right — found that many are placed in "segregation" units, sometimes for years. One prison official explained the logic: "When you come in at a young age with life without [parole], there’s not a whole lot of light at the end of the tunnel." The initial abuse of life without parole, that is, provokes behavior that in turn leads to the subsequent abuse of segregation. International law prohibits the imposition of life sentences on minors, and Mendez declared that the imposition of solitary confinement of any duration on juveniles constitutes "cruel, inhumane, or degrading treatment."

Oh, and one more thing: The United States and Somalia are the only two countries to have failed to ratify the U.N. Convention on the Rights of the Child. In 1995, when the United States signed the treaty, conservatives argued that it would allow children to sue their parents for mistreatment, and objected to a clause prohibiting capital punishment for minors. President Bill Clinton never submitted the treaty for ratification. In a 2008 debate, Obama said, "It’s embarrassing to find ourselves in the company of Somalia" and promised to "review" the decision. That review is apparently still pending. And it’s still embarrassing to find ourselves in the company of Somalia.

Mitt Romney, Obama’s likely opponent in November, often alleges that the president does not believe in "American exceptionalism." It’s a specious claim, but the truth is that America is exceptional — in some ugly as well as admirable ways. Obama wanted, in effect, to restore the true American exceptionalism by putting an end to its uglier forms. Like so many of his other aspirational goals — like "changing the culture of Washington" — this has proved much harder than he thought. It is easier to argue that America under Obama has become a better citizen of the international community than it is to argue that it has become a more rights-regarding nation at home.

Of course, Obama inherited a conservative Supreme Court, Supermax prisons, Gitmo, and a politics infused with what he once called "the color-coded politics of fear." He inherited all that in the same way that he inherited two wars and something close to a depression. If he’s made winding down the wars and warding off economic catastrophe rather than signing U.N. conventions his priority — well, for that we can forgive him. But let’s hope that setting an example to the world of treating your own citizens with the dignity they deserve will make it on to his list of things to do in his hypothetical second term. So yes, we can cut the president some slack on this one. But let us not forget how shameful it is to be classed with Kazakhstan, not to mention Somalia.