Podcast: CCR Senior Attorney Rachel Meeropol on ‘Truly Kafkaesque’ Bureau of Prisons’ Policy for CMUs

Rachel Meeropol

The Center for Constitutional Rights (CCR) is currently in the middle of a lawsuit that challenges the Bureau of Prisons over its lack of due process for prisoners who are placed into what CCR refers to as “experimental prison units.” CCR also is seeking to hold high-ranking Bush-era officials accountable for engaging in racial and religious profiling by rounding up and arresting Muslim, Arab or South Asian men in the immediate aftermath of 9/11.

Rachel Meeropol, a senior staff attorney for CCR, joins Rania Khalek and me on “Unauthorized Disclosure” this week to talk about developments in these lawsuits. Meeropol discusses CCR’s lawsuit against how prisoners are placed into what are called Communications Management Units (CMUs). They impose restrictive conditions and isolate and segregate certain prisoners from the general population.

As Meeropol explains, “Prisoners who end up in these units are predominantly Muslim as well as a lot of political prisoners and others who the Bureau of Prisons wants to silence,” such as people who are “jailhouse lawyers” and “prisoners who advocate for themselves and for other prisoners behind bars.” She particularly highlights what CCR is now able to share with the public about the policy based off documents that are no longer under a protective order

Later in the interview, Meeropol talks about CCR’s struggle to win a day in court for people who were victims of an operation undertaken by the FBI and other law enforcement officials after 9/11. She calls how they were arbitrarily detained a “precursor” to the creation of CMUs by the Bureau of Prisons.

During the discussion portion of the show, we discuss John Kerry’s now-blasphemous comment—his use of the word “apartheid” (oh my!), Prince Georges Police Department’s plan to live tweet a prostitution sting and a rather troubling instance of larger organizations policing dissent during the May Day march in Chicago. We also share some thoughts on surveillance panels dominated purely by white men.

The podcast is now available on iTunes for download. For a direct link (and direct download), go here. And, below is a player for listening to the podcast without getting it from iTunes:

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Below is a partial transcript of the interview with CCR senior staff attorney Rachel Meeropol. 

KEVIN GOSZTOLA: We wanted to have you on to discuss a development in your lawsuit related to something in the Bureau of Prisons called Communications Management Units (CMUs). In case people who are listening don’t know what these are, can you basically describe them before we get into the lawsuit?

RACHEL MEEROPOL: Sure, the Bureau of Prisons opened two secretive Communication Management Units starting in 2006. The units are created to isolate and segregate certain prisoners from being able to contact the outside world and the rest of the prison population. So, they’re units where prisoners’ communications with the outside world are extremely restricted. Prisoners get absolutely no contact visitation whatsoever. They can’t even hug their children when they travel across the country to visit them. Their phone calls are very limited are all monitored, real-time monitored by the Counter-Terrorism Unit (CTU) of the Bureau of Prisons. All mail in and out of the unit is monitored and visitation time is seriously restricted as well.

Now, the prisoners who end up in these units are predominantly Muslim as well as a lot of political prisoners and others who the Bureau of Prisons wants to silence—so jailhouse lawyers, prisoners who advocate for themselves and for other prisoners behind bars end up in these units as well.

GOSZTOLA: And so you can tell me the recent development in the Center for Constitutional Rights lawsuit, you’re basically proceeding with and now there is more information you are able to share with the public about basically how there wasn’t a uniform policy with the Bureau of Prisons and its very broad discretion to how long a person can remain in these units?

MEEROPOL: Let me back up and back up and start with what our lawsuit it. In 2010, the Center for Constitutional Rights filed a constitutional challenge to the CMUs. We challenged the units both on procedural due process grounds—so arguing that prisoners are sent to the unit without the procedural protections that are required by the constitution—as well as challenging the units on equal protection grounds, addressing the fact that they’re used predominantly to segregate Muslims from the rest of the prison population. We also challenged the conditions on the unit.

We were allowed to move forward into discovery against the Bureau of Prisons on our procedural due process claim and also on several retaliation claims. We claim that some of our individual plaintiffs had been placed in the CMU not for legitimate reasons but in retaliation for their protected political or religious speech.

After a couple of years of discovery, taking depositions of all the BOP officials involved in the units as well as staff at the two individual units—which are located in Marion, Illinois, and Terre Haute, Indiana—we were able to move for summary judgment last month.

Now, summary judgment is an opportunity to provide the court who is overseeing the case with all of the evidence you have been able to gather and to say, judge a trial is not even necessary in this case because we can prove to you just on the documents and the evidence that we’ve been able to gather that there’s no facts in dispute here. It’s undisputed that what is going on violates the law. And in connection with that filing, we were able to ask the Bureau of Prisons to agree to lift the protective order that had previously restricted our ability to share all of the evidence and documents that we’ve received from the government with the public, which they by and large agreed to do.

So, in conjunction with this filing, we are now able to talk about for the first time and to show members of the public and members of the press through the details about what happens at these units. And what we’ve been able to find out and to share is really a story of absolute lack of clarity and procedural protection from beginning to end.

Prisoners are sent to these units without any really formal written down designation process. In fact, the first prisoners who were sent to the units, there was no process whatsoever. A single BOP bureaucrat simply decided this was the people who should go there. Prisoners get a one-page notice of transfer when they arrive at the unit after the BOP has decided to send them there. And that notice is supposed to describe the reasons why the individual has been sent to this unit, but first of all the notice doesn’t even reflect the reasons that the person who decided to send the prisoner to the CMU has relied on. It reflects reasons that another office in the BOP thinks are important and not even all the reasons that office thinks are important and even the reasons that are listed on the notice are frequently just incorrect or incomprehensible.

So, prisoners who tried it, challenged their notices, appealed through BOP avenues to try to understand why they’ve been sent to this unit, why they’ve been sent to this unit based on information they know is inaccurate or that they can’t understand simply receive a response, kind of a reiteration of the same explanation. It’s truly Kafkaesque.

An individual will be told, for example, our client Daniel McGowan was sent to a CMU and he received a notice of transfer indicating that his transfer to the CMU was predominantly based on his offense conduct. And it listed several aspects of his offense conduct, which just weren’t true. It was not actions that he was convicted of or charged with or involved in. So he appealed through the administrative remedy process saying that this is incorrect. Where does this information come from? And they respond you have been sent to the CMU because of reason x, y, z—the same reasons, and say the information comes from court documents. But those same court documents show that the information is false. It’s just a closed circuit. There’s no way around.

It’s not just notice that’s defective in terms of CMU procedures. For the first three years that the units existed, there was absolutely no way to get out. It wasn’t clear that the BOP intended to ever review prisoners for release from the unit back into general population. Really it was only on the eve of us filing this lawsuit that the very first prisoner, a plaintiff in the case, was moved out of the unit. And since that time, the Bureau of Prisons has implemented a review process of sorts and has begun moving prisoners out of the CMU back into general population after one to three years in the unit but that review process in itself is incredibly opaque as well. Nobody understands what you need to do to get out or how, when you’ll be reviewed, whose responsibility it is to determine whether you belong in a CMU or not. These are just some of the immense procedural deficiencies that were documented in our filing.

GOSZTOLA: While we’re in the middle of talking about CMUs, I will mention this, that the data [CCR] put out was that 101 of 178 total CMU designations have been Muslim prisoners and only six percent of the prison population in the country is people who consider themselves to be Muslims. And so one of the points you make is that the way that this is happening in policy is not reflective of the fact of having some kind of threat from terrorism and I think that I think you go to great pains to point out in your lawsuit, isn’t that correct?

MEEROPOL: Yeah, that’s right. And it’s really important to scrutinize these numbers. What the Bureau of Prisons and the government in general tends to respond when faced with numbers like these is that this isn’t a unit about segregating Muslims. It’s a unit about segregating terrorists and it just so happens many of the terrorists in our population are Muslim. But, if you look in detail at the numbers, it doesn’t really explain this over-representation.

So, for example, prisoners can be designated to the CMU for a different reason. Sometimes it’s based on terrorism convictions other times it’s based on communications violation. But if we look at the people who have been sent to the CMU because of communications violations, looking just at the first 55 prisoners designated to the CMU, ten were sent there based on communications violations. And, of those ten, eight of them were Muslim prisoners.

GOSZTOLA: I asked someone else at CCR about this, but I still think it is critical to at least raise the issue. What have you found about how this is sort of a retaliation for prisoners exercising their First Amendment rights? I seem to remember that Daniel McGowan was someone who was writing letters to people, who was continuing to be engaged with the community that he came from. And then I wonder if others who are active and retain their political beliefs inside, if their continued exercise of their politics ends up in retaliation they end up in the CMUs?

MEEROPOL: Absolutely. Daniel McGowan’s case is perhaps the starkest example.

When he first started serving his prison term, he was in a low-security prison. He was programming well. He wasn’t violating any prison rules. But he was maintaining a lot of correspondence with social justice and environmental activists in the outside community, writing letters back and forth in accordance with prison policies. And none of these communications were rejected by the prison as detrimental to prison security or anything like that. But without Daniel knowing it the Counter-Terrorism Unit (CTU) of the Bureau of Prisons was reading and analyzing all this mail and using all this mail as a justification to recommend that Daniel be designated to a CMU.

Now the Counter-Terrorism Unit has described Daniel as attempting to be a spokesperson for ELF and ALF, bringing unity to the environmental movement, and based on sort of vague political recommendations such as these recommended he be sent to a CMU. However, Daniel’s notice of transfer said absolutely nothing about his communications in prison; really only talked about his offense conduct. He was never informed, he never knew until we filed this lawsuit that it was his communication with activists on the outside that was really at the heart of why the BOP really wanted to silence him.

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