The punishment of presumed innocents: From the Vatican, and Afghanistan, cautionary tales for our times

Excerpt

Pope Benedict’s former butler, on trial for stealing papal documents, told a Vatican court on Tuesday that during the first weeks of his detention he was held in an isolation room so small he couldn’t stretch out his arms and with light on constantly.

Domenico Giani, the head of the Vatican police, issued a statement saying the room conformed to “standards used by other countries in similar situations”.

The Case of Paolo Gabriele, the Pope’s Butler

From the Vatican, we receive news that the impact of “standards used by other countries in similar situations” include holding suspects presumed to be innocent in sooms so small they cannot extend their arms. Reuters reports,

VATICAN CITY (Reuters) – Pope Benedict’s former butler, on trial for stealing papal documents, told a Vatican court on Tuesday that during the first weeks of his detention he was held in an isolation room so small he couldn’t stretch out his arms and with light on constantly.

Paolo Gabriele said that during those weeks he had suffered damage to his eyesight and had felt under psychological pressure. On the first night in the room in the Vatican’s police station, “even a pillow was denied me”, he said.

A judge ordered an investigation of the police force after Gabriele, speaking confidently and smiling often, made the assertions on the second day of a trial that has embarrassed the Vatican.

Gabriele, who is accused of passing to a journalist documents alleging corruption in the Vatican, pleaded not guilty to charges of aggravated theft.

Asked by his lawyer Cristiana Arru if it was true that for the first weeks after his arrest on May 23 he was held in a room so narrow he could not stretch out his arms, he said: “Yes.”

In answer to a question by the judge, Gabriele said:

“For the first 15-20 days the light was on 24 hours a day and there was no switch. As a result my eyesight was damaged.”

He said he was subjected to what he and his lawyer called psychological pressure.

Domenico Giani, the head of the Vatican police, issued a statement saying the room conformed to “standards used by other countries in similar situations”.

It said the light had been kept on for general security reason, to keep Gabriele from harming himself and that the prisoner had been given an eye mask. He denied that Gabriele had not been given a pillow and said Gabriele was later moved to a larger room in the Vatican police station.

–Reuters, “Vatican Orders Investigation of Police for Abuse of Butler After Arrest”, New York Times, October 2, 2012.

“Standards Used by Other Countires in Similar Circumstances”

In 1764, Cesare Beccaria wrote in his seminal work entitled, Of Crimes and Punishments (published in Italian), the following words regarding torture:

Of Torture.

The torture of a criminal during the course of his trial is a cruelty consecrated by custom in most nations. It is used with an intent either to make him confess his crime, or to explain some contradictions into which he had been led during his examination, or discover his accomplices, or for some kind of metaphysical and incomprehensible purgation of infamy, or, finally, in order to discover other crimes of which he is not accused, but of which he may be guilty.

No man can be judged a criminal until he be found guilty; nor can society take from him the public protection until it have been proved that he has violated the conditions on which it was granted. What right, then, but that of power, can authorise the punishment of a citizen so long as there remains any doubt of his guilt? This dilemma is frequent. Either he is guilty, or not guilty. If guilty, he should only suffer the punishment ordained by the laws, and torture becomes useless, as his confession is unnecessary, if he be not guilty, you torture the innocent; for, in the eye of the law, every man is innocent whose crime has not been proved. Besides, it is confounding all relations to expect that a man should be both the accuser and accused; and that pain should be the test of truth, as if truth resided in the muscles and fibres of a wretch in torture. By this method the robust will escape, and the feeble be condemned. These are the inconveniences of this pretended test of truth, worthy only of a cannibal, and which the Romans, in many respects barbarous, and whose savage virtue has been too much admired, reserved for the slaves alone.

–Cesare Beccaria, Of Crimes and Punishments (1764), Chapter “On Torture”.

The presumption of innocence is well-established in the constitutions of the world and international human rights law including the International Covenant on Civil and Political Rights (1966, in force 1976).

Article 14(2) of the Covenant provides: “Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.”

Article of 1(1) of the U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984, in force 1987) defines “torture” as follows:

Article 1

1. For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

The Convention also provides, in Article 16 the following with respect to treatment that does not rise to the level of torture:

Article 16

1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture or references to other forms of cruel, inhuman or degrading treatment or punishment.

2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibit cruel, inhuman or degrading treatment or punishment or which relate to extradition or expulsion.

Observations

The rough treatment of suspects “presumed to be innocent” has become rather commonplace in the United States and other countries.

From the “perp walk” arrested suspects are forced to undergo when entering the courthouse in many jurisdictions in the United States, to the treatment of John Walker Lindh, “the American Taliban”, when he was first captured and held in Afghanistan in 2001, from the CIA’s use of so-called “harsh interrogation techniques” (in violation of the Torture Convention) to the conditions in which suspects have been held in Guantánamo and Bagram prisons, the presumption of innocence seems to have frayed around the edges.  The use of various forms of pressure on suspects, including interrogation techniques banned by the Torture Convention, international human rights law, and the laws of war seems to have become widespread, even if the most egregious of those techniques have now been banned by President Barack Obama by Executive Order.

The Treatment of John Walker Lindh While Detained in Afghanistan

A second case which throws light on contemporary practice regarding the presumption of innocence is that of John Walker Lindh, the so-called American Taliban. The following descriptions detail the conditions under which John Walker Lindh was detained in Afghanistan in 2001:

December 8-9, 2001: John Walker Lindh Kept in Metal Box for Two Days, Denied Medical Treatment According to government papers, later quoted by defense lawyers for captured “American Taliban” John Walker Lindh (see Late morning, November 25, 2001), “A Navy physician present at Camp Rhino recounted that the lead military interrogator in charge of Mr. Lindh’s initial questioning told the physician ‘that sleep deprivation, cold, and hunger might be employed’ during Mr. Lindh’s interrogations.” This interrogator later says, “he was initially told to get whatever information he could get from the detainee. However,… once it was determined from their initial questioning of Lindh that he was an American, which was done within an hour or so, [the military interrogator] informed a superior and was told they were done questioning him.” Lindh nevertheless is subjected to “sleep deprivation, cold, and hunger.” The metal container Lindh is kept in has no light or heat source. Only two small holes in the sides of the container allow some light and air to enter, through which military guards frequently shout swearwords at Lindh and discuss spitting in his food. According to his defense attorneys, “Mr. Lindh’s hands and feet remained restrained such that his forearms were forced together and fully extended, pointing straight down towards his feet. The pain from the wrist restraints was intense. Initially, Mr. Lindh remained fully exposed within the metal container, lying on his back; after some time had passed, one blanket was placed over him and one beneath him. While in the container the first two days, Mr. Lindh was provided minimal food and little medical attention. He suffered from constant pain from the plastic cuffs on his wrists and the bullet wound in his thigh. Because the metal container was placed next to a generator, the loud noise it generated echoed within the container. According to government disclosures, Mr. Lindh repeatedly said he was cold and asked for more protection from the weather. When Mr. Lindh needed to urinate, his guards did not release him from the restraints binding him to his stretcher, but instead propped up the stretcher into a vertical position. Due to hunger, the cold temperature, the noise, and the incessant pain caused by his wounds and the position in which he was restrained, Mr. Lindh was unable to sleep. Mr. Lindh was held under these conditions continuously for two days.” [United States of America v. John Walker Lindh, 6/13/2002 ]

–History Commons, War in Afghanistan, John Walker Lindh

Lindh’s father describes these conditions of confinement as follows:

On December 7 John was flown to Camp Rhino, a U.S. Marine base approximately 70 miles south of Kandahar, where he was taunted and threatened, stripped of his clothing, and bound naked to a stretcher with duct tape wrapped around his chest, arms, and ankles. It was winter in Afghanistan, and John shivered uncontrollably in the bitter cold. Still blindfolded, he was placed in a metal shipping container that sat on the desert floor. It was especially cold at night, and the pain from plastic restraints that had been tightened about his wrists was severe.

After two days in the container, he was taken into a building at Camp Rhino. When his blindfold was removed, John found himself in front of a man who identified himself as an FBI agent and then read from an advice-of-rights form. When the agent reached the part that concerned right to counsel, he said, “Of course, there are no lawyers here.” John was not told that his parents had retained an attorney for him who was ready and willing to travel to Afghanistan. Worried that he would be returned to the container if he did not sign the form, John signed the waiver.

A two-day interrogation followed, after which U.S. military personnel put John back in the metal shipping container, although this time his leg- and handcuffs were loosened and he was no longer bound by duct tape or blindfolded. On December 14 he was placed on board the USS Peleliu, where Navy physicians observed that he was suffering from dehydration, hypothermia, and frostbite, and that he could not walk. On December 15 the bullet was finally removed from his leg in a surgical procedure conducted more than two weeks after he had been transferred to the custody of the U.S. military.

–Frank R. Lindh, “The Crimeless Crime: The Prosecution
of John Walker Lindh,” DC Bar, Taking the Stand, May 2005.

Analysis and Further Observations

What are we witnessing when we see something like the “perp walk” of Dominique Strauss Kahn in New York when he was arrested for sexual assault in New York in 2011, but before he was found guilty by a court? In this New York case, in fact, he was never found criminally guilty by a court.

What does it mean when we see John Walker Lindh taped naked to a table in a container bin in Afghanistan, in freezing conditions, before he has been convicted of any crime? He was, of course, later convicted. The point, however, is that he had not been convicted at the time, and in any event the conditions of his confinement almost certainly represented a violation of the laws of war.

Are we witnessing a kind of militarization of the criminal justice process, where those who are arrested are treated as if they were guilty by the authorities, just as suspected terrorists may be treated, or even killed by drones in the infamous “signature strikes” where they are convicted by perceptions of their patterns of activity without even knowing their names?

Just what does the presumption of innocence mean today, in the United States, the Vatican and other countries? Does it mean, legally, that the accused are to be treated as if they are innocent?

That seemed to be the original idea, going all the way back to Cesare Beccaria. Where do we as a society, as an international community, stand with respect to that idea today?

What happened?

The Trenchant Observer

About the Author

The Observer
"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.