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Appeal Filed Over Experimental Prison Units That Restrict Prisoners’ Communications

The Center for Constitutional Rights (CCR) appealed a federal district court decision, which essentially ruled prisoners who were confined in Communication Management Units (CMUs) did not have their rights violated.

The United States Bureau of Prisons set up CMUs in 2006 and 2008, in Terre Haute, Indiana, and Marion, Illinois, in order to restrict the communications of prisoners it considers to be higher-risk, such as individuals convicted of terrorism-related offenses. However, CCR describes the units as “experimental” because the Bureau of Prisons didn’t establish any meaningful procedures or criteria for placing prisoners in CMUs. The lack of procedures and criteria led to “haphazard and retaliatory” designations, according to CCR.

Daniel McGowan (Facebook / Support for Daniel McGowan)

Daniel McGowan (Facebook / Support for Daniel McGowan)

CCR’s appeal [PDF] argues the U.S. District Court of the District of Columbia committed an error when it dismissed the organization’s challenge to CMUs on March 16. The segregation that plaintiffs in the case experienced threatened their due process rights and caused “atypical and significant hardship,” which a court should review. But the district court “erroneously” assessed the “significance of plaintiffs’ lengthy time in the CMU” and also ignored the “stigmatizing nature of CMU designation.”

CCR brought the lawsuit on behalf of Yassin Aref and Kifah Jayyousi, who were convicted terrorism-related offenses, and environmental activist Daniel McGowan, who was convicted of conspiracy, arson, and attempted arson. Jayyousi and McGowan were placed in CMUs on the basis of false and incorrect information about their past history, and Jayyousi was kept in a CMU for leading a Jumah prayer sermon in 2008, and McGowan for his writings from prison on environmental issues.

Jayyousi and Aref are still in prison, but McGowan completed his sentence and was released in 2012.

McGowan told Shadowproof, “The fact the Bureau of Prisons confined me in a CMU two times shows that they aimed to silence me and prevent me from blogging on what was happening behind the walls.”

“Prior to that, I had engaged in writing about the effects of the drug war, prison conditions, and current events. I do not think I censored myself in what I wrote though I was conscious that the BOP was seeing everything I wrote through a very narrow filter and thus using my words and articles to attempt to justify their actions,” McGowan added.

He was transferred into the Marion CMU in 2008 and, after being released into general population more than two years later, he was moved to the Terre Haute CMU.

McGowan used the Bureau of Prisons’ administrative remedy process after the Counter-Terrorism Unit (CTU) described his “offense conduct” as including “destruction of an energy facility,” and “teaching others how to commit arson.” This appeared to fit the description of what a co-defendant had been accused of doing and were offenses never alleged in his case.

As McGowan explained, he recognized the administrative remedy process was “fraudulent” and to some extent like a “kangaroo court.” However, prisoners are expected to exhaust this process before filing any lawsuits against their confinement conditions. In fact, not exhausting this process can lead to judges throwing out lawsuits on technicalities. He also found it important to file complaints through this process because it would document what was going and “contribute to the historical record.”

Though McGowan filed more than twenty complaints during this time, at no time did prison officials deem any of his complaints to be valid.

The Bureau of Prisons opened CMUs without any public notice or opportunity for public comment on rule making. The effect of this was evident to McGowan during his incarceration, as he could tell staff was making up procedures as they went along.

McGowan and Jayyousi were not told why they were put in a CMU. Through discovery, McGowan learned he was transferred from a federal facility in Sandstone, Minnesota, to the Marion CMU because of correspondence “with numerous associates” of radical environmental and anarchist groups.

“Through his communications, McGowan continues to provide guidance, leadership, and direction for activities, publications and movement practices in order to further the goals of radical environmental groups,” a secret March 22, 2010 memo quoted in the appeal indicated.

There was no way for McGowan to know he was engaging in conduct the prison opposed because no officials ever instructed him to stop this conduct. So, this is just one more way prison officials make it difficult to contest being placed in a CMU.

Prisoners in CMUs are segregated from general population and only permitted to have non-contact visits. They cannot touch hands or hug their spouses or children and are separated from family by thick plexiglass. They talk to family over a telephone. Visits to CMU prisoners may be limited to four hours with “immediate family members” each month. Up until January 3, 2010, CMU prisoners were only allowed “four hours of social visitation per month and could only schedule visits on weekdays.” After January 3, 2010, BOP increased visitation to “eight hours per month, in two four-hour blocks, excluding Saturdays.”

Similarly, CMU prisoners were only permitted one 15-minute “social telephone call per week” until January 10, 2010. The calls had to be “scheduled for a weekday between 8:30 a.m. and 2:00 p.m., when most prisoners’ loved ones are typically at work or school. After January 10, 2010, CMU prisoners were permitted two scheduled 15-minute calls per week with “immediate family only. But Bureau of Prisons regulations allows personnel to restrict CMU prisoners to three 15-minute calls per month.

Prisoners visiting or speaking with family are required to speak in English unless facilities have been able to schedule translation.

Additionally, a prisoner can be in a CMU for years because there is no limit. There are “harsh consequences” for being in a CMU for a long period.

The appeal notes, “Jayyousi was not able to hug his young daughters for almost five years … McGowan was unable to embrace his wife for nearly four years. Aref describes the lack of physical contact with his children for the 47 months that he spent at the CMUs as a ‘kind of torture.'”

Administrative segregation, in contrast, may only last a few weeks. So, this is part of why CCR believes it is critical to challenge CMU restrictions.

“Communications Management Units impose harsh restrictions on prisoners’ communication with their families and with fellow prisoners for years at a time,” declared CCR staff attorney Rachel Meeropol. “All we are seeking is an explanation of why these prisoners are being singled out for such a restrictive unit, and the chance to contest false or retaliatory placements.”

Earlier this month, investigative journalist Will Potter shared this TED Talk on his visit to a CMU with Shadowproof’s Community.

Elizabeth Warren speaks at an IBEW union gathering in Massachusetts in this March 21, 2012 photograph. (Flickr / Edward Kimmel)
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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."