Vol. 12, No. 18	Covering Cases Published in the Advance Sheets through May 2, 2005

Booker

• The already torrid pace of Booker-related decisions actually revved up a notch last week, as the lower courts produced another of 120 new decisions - raising the total since January 12, 2005 to an astonishing 1143 reported Booker decisions (both published and unpublished). Among the week’s most noteworthy new Booker developments was the filing by the Justice Department of a Petition for a Writ of Certiorari in an Eleventh Circuit case, urging the Supreme Court to resolve the multiple split among the Circuits that has developed on the issue of whether an unpreserved Booker error warrants relief under the plain error standards enunciated by the Supreme Court; and a growing debate about the burden of proof that is required for sentencing enhancements.
  

Supreme Court

• In Deck, the Supreme Court held, by a vote of 7-to-2, that "it is unconstitutional to require an individual, appearing before a jury for a possible death sentence, to be restrained by shackles and handcuffs throughout the proceeding." Justices Thomas and Scalia dissented, arguing principally that, once a defendant has been convicted of a dangerous crime, jurors would not be influenced by the sight of such restraints.
  
  
• In Medellin, by a vote of 5-to-4, the Supreme Court dismissed, as "improvidently granted," a major test case on whether rulings by the World Court on American death penalty cases must be applied in U.S. courts. The Court said any review of the claim by the petitioner, a Mexican on death row in Texas, that he had improperly been denied legal help from his consulate in violation of international law was now premature since President Bush recently directed the Texas courts to revisit the issue - a directive that Texas has challenged.
  
  

The Precarious State of Prison Health Care

• Two cases this past week highlight the next looming crisis in America’s prisons: the inability of the prisons to deal with the medical needs of their burgeoning populations of ever-aging inmates. In Plata, Judge Henderson of the N.D.Cal. took preliminary steps to appoint a receiver to manage the health care system for all the prisons operated by the California Department of Corrections, after finding that the existing system was “highly dysfunctional,” “largely decrepit,” “overly bureaucratic,” and in a “blatant state of crisis.”
  
  
• In Pineyro, Judge Gertner granted a downward departure after concluding that the Bureau of Prisons had not “remotely met” its burden of showing that it could provide the defendant with the medical care he needed to treat his complex and rare medical condition (heterotopic ossification) - a ruling that is the first we can ever remember seeing that questions the BOP’s habitual assertion that it can provide adequate medical treatment for any ailment that exists.

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The next issue of Punch and Jurists will be published in two weeks.

U.S. v. Booker - Update

The pace of lower court decisions interpreting the Supreme Court’s landmark sentencing decision in U.S. v. Booker, 125 S.Ct. 738 (Jan. 12, 2005) continues to reach epic proportions. Last week there were 120 new Booker-related decisions (published and unpublished) - bringing the total to 1,143 since Jan. 12, 2004. We continue to maintain a complete listing of all those cases (in alphabetical order) on our special Booker Resource Center, together with links to the full text and summaries of all the significant Booker decisions for each Circuit, listed separately by Circuit.

Among the week’s most significant new Booker-related developments was the filing, by the Solicitor General, of a Petition for a Writ of Certiorari in U.S. v. Rodriguez, 398 F.3d 1291 (11th Cir. Feb. 4, 2005) (Rodriguez I) and 2005 U.S. App. LEXIS 6629 (11th Cir. Apr. 19, 2005) (Rodriguez II). The Solicitor General urged the Supreme Court to intervene to halt the growing disparity of positions among the Circuits, stating:

“The Government acknowledges the need for certiorari in this case, and offers three compelling reasons in support of that conclusion: (1) ‘There is a clear and deep multi-circuit conflict on the proper analysis of plain Booker error’; (2) the eleven circuits to address the issue ‘have adopted three different broad approaches, with further variations within each broad category’; and (3) ‘[s]ome of the differences among the courts of appeals illuminate basic disagreements about the proper approach to plain-error review’ that will potentially recur in other contexts.”

Accordingly, the Solicitor General asked the Supreme Court to answer the following question:

“Whether the imposition, prior to United States v. Booker, 125 S. Ct. 738 (2005), of a sentence under the United States Sentencing Guidelines that exceeded the maximum sentence supported by the facts found by the jury or admitted by the defendant may presumptively be corrected on review for plain error, or whether such an unconstitutional sentence is reversible plain error only in the rare case in which there is affirmative evidence, such as a statement by the trial court, that the court would have imposed a lighter sentence if not bound by the Guidelines.”

Generally, to obtain relief under Rule 52(b) of the Fed.R.Crim.P., a defendant must show (1) that there was error, (2) that the error was “plain,” (3) that it “affected substantial rights,” and (4) that it “seriously affected the fairness, integrity, or public reputation of judicial proceedings.” While all the Circuits are in general agreement that a Booker error meets the first two prongs of Rule 52(b), different approaches have developed regarding the last two prongs.

The ‘defendant must prove’ plain error standard: The First, Fifth, Eighth and Eleventh Circuits have held that to prove that a Booker error affected substantial rights under the third component of the plain-error standard, the defendant must show a reasonable probability that he would have received a lower sentence under an advisory guidelines regime.

The ‘let’s ask when in doubt’ plain error standard: The Second, Seventh and D.C. Circuits have taken a different approach. While those courts have applied plain-error analysis in the same way to claims of constitutional and non-constitutional Booker error, those courts have held that, in considering whether the error affected substantial rights, pre-Booker cases should generally be remanded to the district court for the court to determine whether it would have imposed a "materially different" sentence under the new advisory guidelines; if so, the defendant will be entitled to resentencing.

The ‘presumption of prejudice’ plain error standard: The Third, Fourth, and Sixth Circuits have drawn a distinction between the plain-error analysis that applies to cases that involve constitutional error and the analysis that applies to cases that involve only statutory Booker error. Where the district court's treatment of the guidelines as mandatory violated the Sixth Amendment, those courts have held that the imposition of a guidelines sentence based on facts found by the district court affects substantial rights and infringes upon the fairness, integrity, and public reputation of judicial proceedings.

The Third and Sixth Circuits have also concluded that even where there is no Sixth Amendment error, imposition of a sentence on the premise that the guidelines are mandatory, rather than advisory, results in error that is presumptively prejudicial.

The ‘no miscarriage of justice’ standard: While most commentators tend to refer to Circuit split as a “three-way” split, the Tenth Circuit has actually adopted a fourth position on the proper plain error standard that should be applied in cases of Booker error. Sitting en banc in a case where no Sixth Amendment violation occurred, the Tenth Circuit held, in U.S. v. Gonzalez-Huerta, 403 F.3d 727 (10th Cir. Apr. 8, 2005), that the district court's "erroneous - although not constitutionally erroneous - mandatory application of the guidelines is not particularly egregious or a miscarriage of justice," and therefore does not satisfy the fourth prong of the plain-error test.

In his brief that was filed with the Supreme Court on May 20, 2005, the Solicitor General stated:

“Petitioner contends that this Court's review is warranted to resolve a conflict in the circuits on the proper application of the plain-error standard to forfeited claims of sentencing error under Booker. The court of appeals in this case correctly held that petitioner was not entitled to relief on his unpreserved Booker claim, and the conflict in the circuits involves a transitional issue that may have limited continuing importance once the cases in which sentences were imposed before Booker have become final. Nonetheless, the multi-circuit conflict on the issue is deep and real, and it implicates issues concerning the proper conduct of Plain-error review that could recur in other contexts. Accordingly, this Court's review is warranted.”

In the Rodriguez case, the defendant had been convicted of a conspiracy to distribute and of possession of methamphetamine. The indictment did not allege a specific amount of the illegal drug involved, and the jury was not asked to decide how much was involved (as Booker now requires of any sentence-enhancing facts.) At sentencing, the Government contended that Rodriguez was responsible for transporting 30,000 pills. The district court made a pre-Booker finding that this was the correct amount for sentencing purposes, and imposed a sentence of 109 months – within a Guideline range of 97 to 121 months. Had Rodriguez been found to have transported no more than 3,050 pills, as the defense contended, the sentencing range would have been only 63 to 78 months.

The Eleventh Circuit acted on Rodriguez’ appeal after Booker was decided, concluding that Rodriguez' sentence did not satisfy Booker because the judge made the factual finding supporting the sentencing range. Finding that it was impossible to tell whether Rodriguez would have received a lesser sentence if the Guidelines had been only advisory, the Eleventh Circuit found a lack of plain error in the sentencing range and the final sentence imposed.

While it is impossible to predict whether the Supreme Court will grant certiorari in Rodriguez (especially after the Solicitor General conceded that the issue he raised will be of “limited continuing importance”), the Eleventh Circuit’s rigid position has led to some unusually blunt criticism from a number of respected jurists. For example, in U.S. v. Paladino, 401 F.3d 471 (7th Cir. 2005), Judge Posner accused the Eleventh Circuit of being stuck in an “epistemic fog”; and, in U.S. v. Pirani, 2005 U.S. App. LEXIS 7445 (8th Cir. Apr. 29, 2005), Judge Heaney argued that the Guidelines’ stated goal of diminishing sentencing disparity “is undermined when circuits apply different standards in determining whether a defendant sufficiently preserved his Sixth Amendment sentencing challenge in the district court, and is further undermined when circuits differ on the question of how to deal with Booker claims on plain error review.”

U.S. v. Magallanez, 2005 U.S. App. LEXIS 8704 (10th Cir. May 17, 2005) (Judge McConnell)
U.S. v. Coleman, 2005 U.S. Dist. LEXIS 9834 (S.D.Ohio May 24, 2005) (Judge Marbley)

These two cases are noted because of their extended (and sometimes conflicting) analyses of the proper standard of proof that is required for sentencing enhancements in the post-Booker world. Megallanez is particularly significant both because it was written by Judge McConnell, who is frequently mentioned as one of the top “stealth” contenders for any vacancy that may occur on the Supreme Court.

In Megallanez, the district court rejected the jury’s special verdict finding that the defendant was responsible for a total of 50-500 grams of methamphetamine; and concluded, based on a preponderance of the evidence standard, that the defendant was actually responsible for 1.21 kilograms of the drug - which resulted in a significantly longer sentence (121 compared with a Guideline sentencing range of 63-78 months that would have been applicable had the district court accepted the lower quantity of drugs found by the jury).

Although defense counsel stated at sentencing that he did not “accept” those findings, he did not point to any specific mistakes or inaccuracies; nor did he raise any Blakley or Booker objections. Accordingly, the Court stated that its review of the sentence was limited to plain error. The defendant’s principal argument was that, under Booker, the district court was required to accept the jury’s special verdict of drug quantity for purposes of sentencing. In response to that argument, Judge McConnell wrote:

“At first blush, there might seem to be force to this argument. . . . But Mr. Magallanez's argument is wrong. Even prior to the Sentencing Reform Act, the Supreme Court held that a sentencing court had broad discretion to consider information concerning the defendant's life and characteristics, including conduct on which he had not been convicted. See Williams v. New York, 337 U.S. 241, 247, 93 L. Ed. 1337, 69 S. Ct. 1079 (1949). After passage of the Sentencing Reform Act, sentencing courts maintained the power to consider the broad context of a defendant's conduct, even when a court's view of the conduct conflicted with the jury's verdict.”

Judge McConnell then cited 18 U.S.C. § 3661 which provides that “[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” He also cited the Supreme Court’s ruling in U.S. v. Watts, 519 U.S. 148 (1997) and concluded:

“Applying the logic of Watts to the Guidelines system as modified by Booker, we conclude that when a district court makes a determination of sentencing facts by a preponderance test under the now-advisory Guidelines, it is not bound by jury determinations reached through application of the more onerous reasonable doubt standard. In this respect, the prior Guidelines scheme is unchanged by the seeming revolution of Booker.”

While much of that language seems contrary to the essential holding of Booker, Judge McConnell did ultimately agree that it was constitutional error for the district court to have increased the defendant’s sentence “beyond the maximum authorized by the jury verdict through mandatory application of the Guidelines to judge-found facts. The district court found by a preponderance of the evidence additional amounts of methamphetamine attributable to the defendant that the jury did not find beyond a reasonable doubt, and sentenced Mr. Magallanez above the top of the range authorized by the jury verdict, pursuant to the then-mandatory Sentencing Guidelines. That is constitutional error under Booker.”

In the end, despite its finding that constitutional error had occurred, the Court concluded that the defendant was not entitled to any relief because the defendant had failed to show that the error seriously affected the fairness, integrity, or public reputation of judicial proceedings, as required under its rigid plain error enunciated in U.S. v. Gonzalez-Huerta, 403 F.3d 727 (10th Cir. Apr. 8, 2005).

In Coleman, Judge Marbley expressed the view that all sentencing enhancements should be determined by proof beyond a reasonable doubt, principally because that standard “reflects the seriousness of the determinations made within the criminal justice system, as opposed to the civil system.” Nevertheless, he also acknowledged that “most courts agree that judicial fact-finding may be made by a preponderance of the evidence so long as the court is operating in an advisory regime.” Accordingly, based on that consensus and dicta from one Sixth Circuit case (U.S. v. Yagar, 404 F.3d 967 (6th Cir. 2005)), he stated that he would continue to review enhancements - “with the exception of those relating to acquitted conduct” - by a preponderance of the evidence.

His decision is particularly noted for its discussion of the proper standard to be used when considering enhancements based on acquitted conduct. He wrote: “At sentencing, acquitted conduct should always be considered using a reasonable doubt standard; otherwise, a defendant's Sixth Amendment right to a jury trial is eviscerated.” (Emphasis added).

In expressing that view, he strongly disagreed with Judge McConnell’s assessment of the continuing validity of the Supreme Court’s decision in U.S. v. Watts. He wrote in part:

“The underlying premises of Booker and its predecessors - Jones, Apprendi, Ring, and Blakely - detract from Watts' continued validity. These cases emphasize that a judge's determination at sentencing must be guided by the jury-authorized verdict. Likewise, the remedial opinion in Booker limits sentences to the jury-authorized statutory maximum, as defined by the United States Code.

“A paradox is thus presented. Apprendi and its progeny, including Booker, have elevated the role of the jury verdict by circumscribing a defendant's sentence to the relevant statutory maximum authorized by a jury; yet, the jury's verdict is not heeded when it specifically withholds authorization. Stated differently, the jury is essentially ignored when it disagrees with the prosecution. This outcome is nonsensical and in contravention of the thrust of recent Supreme Court jurisprudence. The Fifth and Tenth Circuit Courts of Appeal have attempted to reconcile this paradox, thereby upholding Watts' validity, by focusing solely on the narrow remedial holding of Justice Breyer's opinion.

“This Court finds these cases unpersuasive and finds the jury's central role in the criminal justice system is better served by respecting the jury's findings with regard to authorized and unauthorized conduct. To consider unauthorized conduct would be to denigrate wholly the right to a jury trial, which is a ‘fundamental reservation of power in our constitutional structure.’ Blakely, 124 S.Ct. at 2539, 2540 (describing the Sixth Amendment as ‘not a limitation on judicial power, but a reservation of jury power’); Apprendi, 530 U.S. at 479-80 n.5 (recognizing the power of juries, from eighteenth century England through the present, to thwart the prosecution by, e.g., finding guilt of lesser included offenses or acquitting if the jury found the punishment associated with the offense ‘disproportionate to the seriousness of the conduct of the particular defendant’). . . .

“This Court recognizes its power to enhance Defendants' sentence for uncharged conduct, as such conduct was neither authorized nor unauthorized by the jury, but concludes that considering acquitted conduct would disregard completely the jury's role in determining guilt and innocence. . . . Additionally, consideration of acquitted conduct skews the criminal justice system's power differential too much in the prosecution's favor. . . . This ‘second bite at the apple’ allows the government to perfect its case and ready it for re-litigation at the sentencing ‘mini-trial’." (Internal citations and quotations omitted).

Deck v. Missouri, No. 04-5293 (U.S. Sup. Ct. May 23, 2005) (Justice Breyer)

The petitioner in this case, Carman Deck, was convicted of two counts of first-degree murder and four other charges and sentenced to death in Missouri state court. On appeal, his conviction was affirmed but his sentence was vacated and a new sentencing hearing was ordered. From the first day of the new sentencing proceeding, Deck was shackled with leg irons, handcuffs and a belly chain. After he was again sentenced to death, he appealed arguing that the restraints - that were clearly visible to the jury - violated both Missouri law and the Federal constitution. The Missouri Supreme Court denied the appeal, finding that Deck was a potential flight risk and that he did not demonstrate that being kept in restraints prejudiced him.

The Supreme Court granted certiorari to decide whether shackling a convicted offender during the penalty phase of a capital case violates the Federal Constitution. Over the dissents of Justices Scalia and Thomas, it held that “the Constitution forbids the use of visible shackles during the penalty phase, as it forbids their use during the guilt phase, unless that use is ‘justified by an essential state interest’ - such as the interest in courtroom security - specific to the defendant on trial.”

Writing for the majority, Justice Breyer said that shackling during any phase of a trial was “inherently prejudicial.” He then continued: “That statement is rooted in our belief that the practice will often have negative effects, but - like ‘the consequences of compelling a defendant to wear prison clothing’ or of forcing him to stand trial while medicated - those effects ‘cannot be shown from a trial transcript.’ Thus, where a court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury, the defendant need not demonstrate actual prejudice to make out a due process violation. The State must prove ‘beyond a reasonable doubt that the [shackling] error complained of did not contribute to the verdict obtained’." (Internal citations omitted).

The dissenting Justices argued principally that the rules changed once a defendant was convicted of a dangerous crime, stating that “it strains credulity” to think that the jurors would be surprised at the sight of restraints. Writing for the dissent, Justice Thomas said:

“Wholly apart from the propriety of shackling a defendant at trial, due process does not require that a defendant remain free from visible restraints at the penalty phase of a capital trial. Such a requirement has no basis in tradition or even modern state practice. Treating shackling at sentencing as inherently prejudicial ignores the commonsense distinction between a defendant who stands accused and a defendant who stands convicted. . . . The modern rationales proffered by the Court for its newly minted rule likewise fail to warrant the conclusion that due process precludes shackling at sentencing. Moreover, though the Court purports to be mindful of the tragedy that can take place in a courtroom, the stringent rule it adopts leaves no real room for ensuring the safety of the courtroom.”

Plata v. Schwarzenegger, No. C01-1351TEH (N.D.Cal. 05/10/05) (Judge Henderson)

Judge Thelton E. Henderson has never been bashful about exposing and condemning inhuman and unacceptable conditions in the state prisons in California. His brilliant 138-page decision in Madrid v. Gomez, 889 F.Supp. 1146 (N.D.Cal. 01/10/95) is still a classic: it was and is a scathing (and frightening) indictment of the conditions at Pelican Bay - which is supposed to be the pride of the California prison system.

With the same passion and precision, Judge Henderson has now highlighted the health care crisis that exists in the California state prison system. With bold words, he has explained the obvious: as prisons overflow with aging inmates, and state budgets groan under the increasing weight of geriatric health care bills, the quality of health care has declined so precipitously that it is no longer constitutionally adequate or even humane.

The plaintiffs filed this class action lawsuit more than four years ago; and Judge Henderson immediately took charge. He held monthly meetings with the parties; he appointed experts to evaluate the medical care that was available to inmates; he even toured the prisons. In the end, he was horrified by the “widespread evidence of medical malpractice and neglect.” He noted that his experts found 34 deaths that were “highly problematic, with multiple instances of incompetence, indifference, neglect, and even cruelty by medical staff.” In the end, he concluded that the prison health care system in the California prisons was not just broken - it was beyond repair. He explained:

“The prison medical delivery system is in such a blatant state of crisis that in recent days defendants have publicly conceded their inability to find and implement on their own solutions that will meet constitutional standards. The State's failure has created a vacuum of leadership, and utter disarray in the management, supervision, and delivery of care in the Department of Corrections' medical system. . . . [R]oughly 162,000 prisoners are being subjected to an unconstitutional system fraught with medical neglect and malfeasance. Defendants themselves have conceded that a significant number of prisoners have died as a direct result of this lack of care, and it is clear to the Court that more are sure to suffer and die if the system is not immediately overhauled.

“In light of this crisis and defendants' concession that the constitutional violations will not be corrected for a long time to come, the Court is compelled to take it upon itself to construct a remedy that will cure the violations as soon as possible. Having considered the range of options available, the Court believes that the appointment of an interim receiver to manage the CDC's delivery of health care services may be necessary. Therefore, the Court issues this Order requiring defendants to show cause why a receiver is not the appropriate remedy and, if not, why not. Defendants also shall address the issue of contempt, which may be procedurally necessary as a predicate to the appointment of a receiver.”

Unafraid of the political consequences of his words, Judge Henderson attributed the cause of the problem to a “highly dysfunctional, largely decrepit, overly bureaucratic, and politically driven prison system”; and he concluded that the problems have “gone too far to be corrected by conventional methods.”

For a quarter of a century, politicians have done little but ram through “tough on crime” laws designed to put more and more people in prison for longer and longer periods of time - without adequately funding the long terms costs of that “lock ‘em up forever” philosophy. For a quarter of a century, politicians, prison officials, and (sadly) many judges have kept their heads stuck in sand - trying to avoid the inevitable consequences of the rising costs of giving prisoners humane and constitutionally required medical treatment.

While Judge Henderson will probably be pilloried for his ruling in this case, it is a remarkable indictment of the state of medical services in California’s prisons - and probably in a lot of other prisons as well!

U.S. v. Pineyro, 2005 U.S. Dist. LEXIS 9538 (D.Mass. May 18, 2005) (Judge Gertner)

This is an important decision in which Judge Gertner addressed certain aspects of the quality of medical services afforded to inmates by the Federal Bureau of Prisons (BOP). It is also the first decision we can remember seeing in which a Federal court flatly rejected the BOP’s ritual assertion that it has the medical staff and the facilities needed to treat any conceivable ailment - no matter how rare and complex.

The defendant in this case, Robert Pineyro, suffered from a rare medical condition known as heterotopic ossification (“HO”), a painful and immobilizing disease that causes excess bone growth in bones that were previously broken. As a result of this disease, Pineyro’s left arm, shoulder, back and left leg have become immobilized and he is unable to bend. Because the condition is chronic, Pineyro has to be carefully monitored; and he periodically undergoes radiation and physical therapy, and has endured multiple operations to scrape away the excess bone.

Pineyro was charged with being a felon in possession of a firearm - based on a crime he committed more than a decade ago. After he was arrested on that charge, he was detained at the Plymouth House of Correction for some 15 months - until Judge Gertner released him on bail pending trial because his condition began to deteriorate badly due to lack of proper medical treatment. In her decision, Judge Gertner noted:

“There was no doubt that [Pineyro] could not be adequately treated at the Plymouth House of Correction where he was detained. Indeed, the account of the fifteen months that Pineyro spent there -- without pain medication, surgery, therapy, or meaningful care -- while his condition worsened also had an impact on my ultimate sentencing decision. Pretrial detention, when the defendant is presumed to be innocent, is not supposed to amount to punishment; it was plainly punishment here.”

Ultimately, Pineyro pled guilty to the charge against him; and his Guideline sentencing range was 46-to-57 months. Judge Gertner delayed the sentencing, however, “to fully evaluate the nature of Pineyro’s condition and whether the [BOP] was able to provide him with adequate care.” After hearing extensive testimony on that issue, Judge Gertner rejected the BOP’s self-serving claims that it had the staff and the facilities to treat Pineyro. She pointedly wrote:

“Despite the BOP's assurances, which I found to be less than persuasive, I concluded that Pineyro's condition could not be adequately addressed in a BOP facility. The vague promises given by the BOP about what it could do to accommodate Pineyro did not begin to compare with the existing, detailed treatment plan of Pineyro's doctors -- pain medication, psychiatric and physical therapy, and regular surgical interventions. . . .

“The BOP has not remotely met its burden of showing that it can provide the defendant with ‘needed . . . medical care, or other correctional treatment in the most effective manner.’ 18 U.S.C. § 3553(a) (2) (D). It offered no treatment plan whatsoever and surely nothing comparable to what Pineyro is presently receiving. Its conclusion that it can provide the ‘necessary and appropriate treatment’ is not only vague, it does not meet the statutory requirements (that Pineyro receive ‘the most effective’ treatment).”

Based on those findings, Judge Gertner granted Pineyro a downward departure based on his extraordinary physical condition (pursuant to U.S.S.G. § 5H1.4, and sentenced him to time served (15 months), with a series of special conditions.

New Amnesty International Report Blasts
U.S. Treatment of Prisoners at Guantanamo Bay

As part of its Annual Report on the State of the World’s Human Rights, Amnesty International last week accused the United States of significant human-rights abuses. While the Report noted significant examples of torture and human rights abuses throughout the world, it singled out the United States for condoning “atrocious” human rights violations, thereby diminishing its moral authority and setting a global example of encouraging abuse by other nations.

Perhaps the sharpest criticism came from the section of the Report devoted to the operation of the military detention center at Guantanamo Bay, Cuba - which the Report called the “gulag of our time” - a pointed comparison to the Soviet system of forced labor camps that killed more than a million people. In condemning the continued operation of that military camp, the Report stated: “The US administration continues to argue in the courts to block any judicial review of the detentions or to keep any such review as limited as possible and as far from a judicial process as possible. Its actions are ensuring that the detainees are kept in their legal limbo, denied a right that serves as a basic safeguard against arbitrary detention, ‘disappearance’ and torture or other cruel, inhuman or degrading treatment. Amnesty International believes, as explained in Section 3, that all those currently held in Guantanamo are arbitrarily and unlawfully detained.”

The Report also sharply criticized several other by-products of America’s “War on Terror,” including the executive detention of more than 70,000 suspects at various places outside the United States; numerous instances of prisoner abuse and torture at various U.S. military detention centers which have led, in some cases to death; and the so-called rendition of prisoners to countries known to practice torture, as evidence that the United States “thumbs its nose at the rule of law and human rights.”

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