The author of the 2002 Bush torture memo that condoned waterboarding, sleep deprivation, and other extreme treatment has now authored a federal appeals court opinion rejecting a torture lawsuit by a California prisoner.
Jay Bybee, who was appointed by Bush to become a federal appeals court judge before the memo became known, voted to overturn a trial court’s ruling that a prisoner alleging cruel and unusual punishment could take his case to trial. Plaintiff Rex Chappell filed suit to challenge his treatment while held in isolation on“contraband watch” for almost seven days with continuous bright lighting, shackled to a concrete bed with no mattress and forced to eat like a dog. Bybee described the conditions this way:
Contraband watch, also known as a “body cavity search,” is a temporary confinement during which a prisoner is closely monitored and his bowel movements searched to determine whether he has ingested or secreted contraband in his digestive tract. Under prison procedures, the prisoner is first searched and then dressed so as to prevent him from excreting any contraband and removing it from his clothing. … The prisoner is then placed in waist chain restraints, which are handcuffs that are separated and chained to the side of the prisoner’s waist. […]
When the prisoner needs to defecate he must notify the prison staff who will bring him a plastic, moveable toilet chair. Once he uses the chair, the staff will search the waste to determine if it contains contraband.
In addition to these procedures, Chappell claims that he was also placed in ankle shackles, and chained to the bed. He complains that the waist restraints were not loosened for meals, forcing him to “eat [his] food like a dog; the temperature in the cell was very high; the cell was unventilated; and the lights were “very bright.” Chappell alleged that the conditions “did in fact torture [him] mentally” and he felt like he “deteriorat[ed] mentally” during contraband watch.
After having three bowel movements that did not reveal contraband, Chappell was released from contraband watch on May 6, 2002.
Bybee held that federal officials were immune from lawsuit because the type of treatment Chappell alleged had never before been deemed unconstitutional. He rejected the district court judge’s conclusion that the conditions were ones that “any reasonable officer would know comprised unconstitutional conditions of confinement.”
In dissent, Clinton appointee Marsha S. Berzon lamented:
If new facts alone triggered qualified immunity, then officials would rarely if ever be held accountable in cases involving ‘fact-driven’ claims, such as the Eighth Amendment claim at issue here … A reasonable officer would have known that, in combination, the twenty-four-hour bright light, the absence of a mattress, and the extensive bodily restraints risked depriving Chappell of sleep, in violation of the Eighth Amendment.
It is, of course, unsurprising that the man who has continued to defend his memo authorizing waterboarding as ”legally correct” would not find these conditions legally objectionable. By finding the officers immune from lawsuit entirely, however, he took the case one step further to prevent Chappell from ever having the opportunity to make his case at trial, unless the decision is reconsidered by a full Ninth Circuit panel or the Supreme Court.
In his appeal, Chappell’s lawyer quoted the prison guard monitoring Chappell as saying, “Man, this is wrong. I have sat on many potty watches and they have never treated nobody like they are treating you.” Even under normal conditions, “contraband watches” are a form of solitary confinement, which has been deemed torture and cruel and unusual punishment by several human rights organizations. Just this week, Sen. Dick Durbin (D-IL) announced that the federal Bureau of Prisons will take a closer examination of widespread U.S. use of the controversial practice that has been found to have dramatic psychological effects on inmates.
Joining Bybee in upholding the treatment was Reagan-appointed senior District Judge James L. Graham, sitting on the Ninth Circuit on assignment. If this case shows anything, it is that who sits on our courts matters. Thanks to President Bush, a judge who sanctioned torture is now deciding allegations of mistreatment on what is, for most people, the court of last resort.