Did Solitary Confinement Make UndieBomber 1.0 Incompetent to Represent Himself?

But, in fact, the FBI do a great job as far as eliciting information after they’re Mirandizing them, and so they can get information as part of that type of negotiation with them, let them know they can in fact languish forever, or we can in fact have a dialogue about it intelligently.

— John Brennan, describing the way the FBI gets suspects to talk after Mirandizing them

Here’s something you may not know: Umar Farouk Abdulmutallab, the first UndieBomber, is appealing his conviction and sentence.

He’s doing so on several grounds, including that his confession made during public safety questioning while on fentanyl should not have been admissible at trial. But the most interesting issue — and the one that takes up the bulk of his appeal — argues Abdulmutallab was not competent to represent himself. (His appeal, as well as the government response and his reply only recently got unsealed by the Circuit Court.)

As the appeal notes, back in August 2011, after he had been in custody almost 20 months, his standby counsel Anthony Chambers submitted a motion requesting a competency hearing, one the judge rejected.

His standby counsel filed a motion requesting a competency hearing, noting that Abdulmutallab suffered “mental lapses,” engaged in “bizarre behaviors,” and sometimes seemed interested in presenting a defense while at other times he seemed indifferent to his defense. Abdulmutallab also demonstrated indifference toward his defense in front of the district court. The district court denied the motion for a competency examination based largely on Abdulmutallab’s own equivocal and rambling profession of competency. The failure to hold the competency examination cannot be cured after the fact and requires a new trial so that a “concurrent determination” of competency can be made. Abdulmutallab’s guilty plea did not waive the competency issue because a person whose competence is in doubt cannot knowingly, voluntarily, and intelligently waive a right or plead guilty.

The appeal cites consistent difficulties Abdulmutallab and attorneys tied to his case had with the Milan Correctional Facility, where he was being held in solitary confinement with communication restrictions. At almost every status hearing (save the one where he fired his court appointed lawyers), Abdulmutallab complained about the communication restrictions placed on him at Milan. (“Milan” is pronounced My-lin.)

At a status conference on April 13, 2010, his attorney’s reported that security restrictions at Federal Correctional Institute Milan (“Milan”) had severely limited their ability to meet with him to review discovery and other matters. He was held in solitary confinement under constant 24-hour manned observation.

[snip]

[In January 2011] Standby counsel informed the district court that he had difficulty in communicating with and meeting with Abdulmutallab at Milan.

[snip]

The next pretrial conference took place on April 7, 2011. After discussing various scheduling matters, Abdulmutallab informed the district court that restrictions at Milan, such as his inability to make a phone call to standby counsel and the opening of his mail from standby counsel, were severely limiting his defense. Despite being a pretrial inmate, he was housed in Milan’s Special Housing Unit.

[snip]

On July 7, 2011, the district court held a hearing on various motions, including the motion to define the role of standby counsel. After a lengthy discussion regarding the role of standby counsel, the district court addressed Abdulmutallab. He expressed satisfaction with his standby counsel but he complained that Milan would not allow him to receive certain documents he needed to prepare for trial, including an example of a trial transcript.

[snip]

[On August 17, 2011, the date on which the judge had a colloquy with Abdulmutallab on whether he was competent] After denying the Motion, the district court discussed the restrictions Milan continued to impose on Abdulmutallab. Abdulmutallab wanted various magazines and reports covering the incident on the airplane so he could understand the press coverage, which would help him in jury selection. Milan would not allow him to have these materials. The district court stated that it would order Milan to allow him access to media articles and the trial transcript to use as an example but otherwise he would be subject to Milan’s general policy, which prohibited him from having a radio or magazines. [citations removed]

While the appeal doesn’t make the case as strongly as it could, ultimately Abdulmutallab’s current counsel is arguing the solitary confinement made him increasingly incompetent to represent himself as time wore on.

Pending trial he was held in solitary confinement and placed under constant watch in conditions that would strain the mental health of anyone. His treatment vastly differed from that of most pretrial inmates and his frequent reports of troubles with Milan coincided with his declining interest in mounting a defense.

Now, whether or not this appeal should work, I’m all but certain it won’t.

I’m not even sure it would work for a non-terrorist defendant, but for an Islamic extremist who tried to blow up a plane, judges will almost certainly defer to the government on Abdulmutallab’s appropriate treatment and they’re not going to risk a terrorism conviction based on this appeal.

All that said, these details on his treatment (the references from the competency motion itself are newly unsealed, the complaints about Milan are just compiled from all the hearings) do raise real issues whether, before Abdulmutallab pled guilty, he had been driven incompetent to do so — to say nothing of his competence to represent himself generally.

It also raises one more issue, as my quotation of John Brennan’s invocation of “languishing forever” suggests. The government clearly repeatedly tried to get Abdulmutallab to implicate Anwar al-Awlaki and even submitted questionably framed documents after the fact to insist he had done so. Some of the interrogations in which the government claimed he had implicated Awlaki came during the period — leading up to the April 13, 2010 hearing — when his attorneys complained they had gotten inadequate access to him.

I get the need to ensure Abdulmutallab remained in secure confinement (I lived 19 miles away from Milan for the first eight months or so he was there). But given the government’s extensive use of isolation as an interrogation tactic, given that Abdulmutallab was the first detainee the High Value Interrogation Group interrogated (they got involved after the court assigned him lawyers), it seems likely his solitary confinement — and the mental damage his standby attorney claimed it caused — was by design, part of an attempt to get him to provide evidence justifying Anwar al-Awlaki’s assassination.

I’m almost certain it won’t jeopardize his conviction, but it sure raises questions of whether or not it should. And whether an American citizen should have been assassinated based on his isolation induced confession.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

10 replies
  1. orionATL says:

    he was pretty clearly mentally ill before becoming a terrorist.

    placing an already convicted terrorist in solitary, in chains, under 24-hr supervision would seem clearly to constitute “cruel and unusual punishment”.

    there is also the very important question:

    what is the point of treating him, or any other terrorist, this way?

    what is the gain to the society or the nation’s security?

    do we treat serial murderers or rapists this way?

    i thought solitary was reserved for exceptionally violent inmates – to protect the jailers and other prisoners.

  2. Chris Harries says:

    “..what is the point of treating him, or any other terrorist, this way?”

    Not pour encourager les autres, that’s certain. It’s done to cheer up the bozos in the cheap seats, not to mention the sadists in the luxury boxes.

  3. Jeff Kaye says:

    The US government has known for a long, long time of the deleterious effects of isolation of a prisoner. The following is from an earlier draft of my paper, “Isolation, Sensory Deprivation, and Sensory Overload: History, Research, and Interrogation Policy, from the 1950s to the Present Day,” published in the National Lawyers Guild journal, Guild Practitioner (Spring, 2009). The earlier draft is easier to access online but makes the same points. It originated as a talk I was invited to give at the Summer 2007 APA convention. (I subsequently resigned from APA over its interrogation-torture policies.)

    In his article for the book The Manipulation of Human Behavior (Biderman 1961), Lawrence Hinkle, Jr. (1961) described how isolation and sensory deprivation could produce a state of disordered brain function (DBF) similar to that produced by disturbance of brain homeostasis through fever, hypothermia, dehydration, blood abnormalities, shock, hemorrhage, vomiting, and starvation. Individuals with DBF experience thinking difficulties, along with “illusions, delusions, hallucinations, and projective or paranoid thinking” (p. 26).

    Hinkle concluded:

    It is well known that prisoners, especially if they have not been isolated before, may develop a syndrome similar in most of its features to the “brain syndrome” [see also (Grassian 1983)]… They become dull, apathetic, and in due time they become disoriented and confused; their memories become defective and they experience hallucinations and delusions…. their ability to impart accurate information may be as much impaired as their capacity to resist an interrogator…

    From the interrogator’s viewpoint it has seemed to be the ideal way of “breaking down” a prisoner, because, to the unsophisticated, it seems to create precisely the state that the interrogator desires: malleability and the desire to talk, with the added advantage that one can delude himself that he is using no force or coercion…. However, the effect of isolation on the brain function of the prisoner is much like that which occurs if he is beaten, starved, or deprived of sleep.

    Hinkle is identified as a doctor who worked for the Defense Department in this 2007 Scott Shane article in the New York Times. According to the National Security Archive and the documentary filmmakers who made “Torturing Democracy,” Hinkle, and his sometimes partner Harold Woolf, were “contract psychologists” for the CIA. The book, Manipulation of Human Behavior, lists him as an “Associate Professor of Clinical Medicine in Psychiatry, New York Hospital — Cornell Medical Center.”

    I had an article about his talk at a 1957 meeting of the Group for the Advancement of Psychiatry in which he was a “discussant” on the topic of “Methods of Forceful Indoctrination”:

    “The essential feature of these methods is isolation and repetitive interrogation, the use of much personal history material; all of this carried out in an atmosphere productive of fatigue, sleep loss, and the various forms of physiological disturbance which can be produced by hunger, cold, unusual positions and the like. Prominent features of the reactions of the prisoner are anxiety, uncertainty, and intolerable discomfort. If this regimen is carried forward long enough it usually leads to mental dulling, confusion, loss of discrimination and despondency, associated with an intense desire to escape from the situation; and the ultimate result of this type of pressure is a state of delirium, associated with hallucinatory and delusional experiences.”

    Nothing has been discovered in the medical field since those times to change these conclusions one iota.

  4. thatvisionthing says:

    @Jeff Kaye: I’m trying to think, isn’t there a whole section on sensory deprivation and isolation and sleeplessness as ways to break people down into nothingness in Rory Kennedy’s movie on Abu Ghraib? (maybe another film?) Just saying, I’ve seen the psychology history of this in a documentary. Canada prof/experiments? Isn’t this something the ICRC cares about? Why does Milan get away with it?

  5. bell says:

    solitary confinement is a type of torture which is why the usa admin likes to use it i guess.. i know it depends on the temperament of the individual, but generally that is what solitary confinement is as i see it.

    i think if more people/countries/etc defined solitary confinement this way, it would be one small step forward for mankind..

  6. thatvisionthing says:

    @thatvisionthing: Rory Kennedy’s Ghosts of Abu Ghraib had Milgram experiment about following orders despite conscience, Alex Gibney’s Taxi to the Dark Side had Hebb’s experiments on sensory deprivation:

    Taxi to the Dark Side

    NARRATOR: At McGill [University, Quebec], experiments by famed psychologist Donald O. Hebb caught the eye of CIA researchers. Dr. Hebb found that he could induce a state akin to acute psychosis in 48 hours. All he did was he had student volunteers sit in a very pleasant air-conditioned cubicle with goggles, gloves and ear muffs. Actually, you know what they looked just like? The Guantanamo detainees. If you see those outfits that the Guantanamo detainees have, where they have the gloves, the goggles and the ear muffs? Now everybody thinks, “Oh, that’s security.” No, no, no. That’s sensory breakdown. Within a day, there would be hallucinations, within two days, breakdown.

    DR. DONALD O. HEBB: I began to think, while we were doing our experiments, that it’s possible that something that involves physical discomfort, or even pain, might be more tolerable than simply the deprivation conditions that we studied.

    PROFESSOR ALFRED McCOY, Author of “A Question of Torture”: The CIA was fascinated by this. They jumped on it immediately.

    article
    By BRIAN CAHILL

    …”Once you have cut these (external stimuli) all off, and cut them off long enough that the person is completely disoriented and disorganized, then if you feed back in information you want this person to have and this is the only information he gets, slowly or sometimes not so slowly, he begins to incorporate this into his thinking and it becomes like actual logical thinking because this is the only feed-in he gets,” Dr. Felix said.

    “You can break down anybody with this. I don’t care what their background is or how they have been indoctrinated. I am sure you can break down anybody with this,” he declared.

  7. Jeff Kaye says:

    @thatvisionthing: Yes, but Hebb’s experiment couldn’t be easily replicated. It turned out that a lot had to do with the mental set of person subjected to sensory deprivation, at least in the short experimental times contemplated. What they discovered was that the more you added uncertainty and fear to the situation, the more disordered response you got. And of course, that’s exactly what happens under conditions of arrest or incarceration.

  8. thatvisionthing says:

    @Jeff Kaye: Thank you, I knew you’d know. …”couldn’t be easily replicated”… Now why do I imagine Rumsfeld trying and trying and trying… ? Wait, not imagining, it’s what I saw in Taxi to the Dark Side:

    All he did was he had student volunteers sit in a very pleasant air-conditioned cubicle with goggles, gloves and ear muffs. Actually, you know what they looked just like? The Guantanamo detainees. If you see those outfits that the Guantanamo detainees have, where they have the gloves, the goggles and the ear muffs? Now everybody thinks, “Oh, that’s security.” No, no, no. That’s sensory breakdown. Within a day, there would be hallucinations, within two days, breakdown.

Comments are closed.