Ye Olde Gitmo
When Americans were unlawful combatants.
On an island under military occupation at the edge of an empire, the armed forces of a global superpower detain hundreds and sometimes even thousands of allegedly unlawful combatants. The powerful nation consigns the detainees to a legal limbo, subjecting them to treatment that critics around the world decry as inhumane, unenlightened, and ultimately self-defeating. That may sound like a history of Guantanamo. Yet the year was 1776, the superpower was Great Britain, and the setting was New York City. The "unlawful" combatants were American revolutionaries.
Ever since President-elect Barack Obama suggested that he will close down Guantanamo, historians and journalists have been racing through the American past in search of evidence for our commitment to the rule of law in wartime. The Founding Fathers are the first stop. The days when New York was America's 18th-century Guantanamo, it seems, hold lessons for extricating ourselves from the Bush Administration's 21st-century mess. New York's notorious prison camps are the subject of a new book, Forgotten Patriots: The Untold Story of American Prisoners During the Revolutionary War, by Pulitzer Prize-winning historian Edwin G. Burrows. Though he mentions current events only once, the American experience since 9/11 looms over his story.
After the Continental Congress issued the Declaration of Independence in Philadelphia on July 4, 1776, British forces under Gen. William Howe began warehousing thousands of Americans captured in and around New York in Britain's first major campaign of the war. For the next seven years, British forces occupied the city, turning it into a barracks and loyalist refugee center, but also a prison camp for Americans taken prisoner around the Eastern Seaboard and on the high seas.
Captured officers usually had little to complain about other than boredom. Most were released on what 18th-century armies called "parole" and spent months and even years in the relative comfort of Long Island, where they boarded with local families. The fate of American enlisted men, however, was far direr. The British crowded them into just about every available space. The city's churches and sugar warehouses became holding pens for captured Americans. Even King's College (now Columbia University) was thrown into service as an ersatz detention center.
Conditions in these unsuitable buildings and makeshift prisons were appalling. Smallpox and other infectious diseases raced through the ranks. Summers were unbearably hot in poorly ventilated and overcrowded buildings. Exceptionally cold winters in 1777 and 1778 combined with lack of fuel to produce freezing temperatures. Food was scarce under ordinary circumstances, and logistical problems often reduced the prisoners' food supplies to dangerously low levels. Burrows calculates that rations—set at about 2,400 calories a day, or two-thirds what a British soldier received—were so low as to cause a typical prisoner to lose one pound of body weight each week.
The notorious prison ships anchored in New York harbor were even worse than the ad hoc prisons on Manhattan island. The ships were far and away the worst place an American prisoner could end up. Enlisted men and privateers captured on the high seas were crowded into the noxious, waste-filled, and disease-ridden holds of aging vessels moored in Wallabout Bay along the Brooklyn waterfront (roughly between the Manhattan Bridge and the Williamsburg Bridge).
Death rates for those held in the ships, Burrows estimates, approached 50 to 70 percent. According to a few sketchy contemporary reports, some 11,000 Americans died on the ships. If death rates were the same in the Manhattan holding pens as on the ships in the harbor, then, Burrows reasons, as many as 19,000 American soldiers may have died in captivity, almost three times the number of Americans killed in battle during the entire Revolutionary War.
Parallels to recent American history are sometimes so close as to be eerie. In the months after 9/11, the United States hoped that putting detainees at Guantanamo would insulate its detention decisions from legal challenges in the courts. Lord North and the British Cabinet hoped that locating prisoners in New York would do the same. (North shipped American revolutionary hero Ethan Allen from London to New York in order to keep him out of reach of habeas corpus proceedings in the British courts at Westminster.) As in Iraq and Afghanistan, the ambiguous legal status of American prisoners tacitly licensed shocking abuses. The surviving diaries of American prisoners describe sadistic treatment by captors who were every bit the equal of Charles Graner and Lynndie England at Abu Ghraib.
John Fabian Witt is a professor of legal history at Columbia University and the author of Patriots and Cosmopolitans: Hidden Histories of American Law.