A federal appeals court in the District of Columbia circuit reinstated a case challenging the Bureau of Prisons’ (BOP) use of secretive and experimental prison units known as communications management units (CMUs). However, it rejected claims alleging plaintiffs held in the units were “stigmatized” as “terrorist inmates” and concluded a now-deceased former official did not retaliate and infringe upon First Amendment rights.

The BOP set up CMUs in 2006 and 2008, in Terre Haute, Indiana, and Marion, Illinois, to restrict the communications of prisoners it considered to be higher-risk, such as individuals convicted of terrorism-related offenses. But the Center for Constitutional Rights (CCR) describes the units as experimental because the BOP initially did not 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, 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. 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, BOP increased visitation to “eight hours per month, in two four-hour blocks, excluding Saturdays.”

Inmates in CMUs are required to speak English with family unless the prison has scheduled translation for the visit.

On March 16, 2015, the district court in the D.C. Circuit dismissed a case brought by Yassin Aref and Kifah Jayyousi, who were convicted of terrorism-related offenses, and environmental activist Daniel McGowan, who was convicted of conspiracy, arson, and attempted arson. CCR argued Jayyousi and McGowan were placed in CMUs on the basis of false and incorrect information about their past history.

Jayyousi was kept in a CMU for leading a Jumah prayer sermon in 2008, and McGowan was put in a CMU for his writings from prison on environmental issues. CCR alleged Jayyousi and McGowan faced retaliation in violation of their First Amendment rights. However, the district court did not believe Aref, Jayyousi, or McGowan had a “liberty interest” in avoiding placement in CMUs.

The D.C. Circuit Court of Appeals disagreed [PDF].

“Because we find the duration and atypicality of CMU designation sufficient to give rise to a liberty interest, we reverse the district court and remand for further proceedings to determine whether appellants were afforded sufficient process,” the appeals court concluded.

Jayyousi reacted, “Today’s ruling proves that the years of abuse my family and I, along with many other Muslims, have suffered from the BOP was well worth the sacrifice. This decision finally restores our constitutional and human rights.”

CCR senior staff attorney Rachel Meeropol suggested the ruling made clear “the BOP cannot simply send anyone they want to a CMU, for any reason, without explanation, for years on end.”

Both Aref and Jayyousi were moved from CMUs to general population. McGowan was released from prison in December 2012, and since 2013, he is no longer under BOP supervision.

The government insisted Aref, Jayyousi, and McGowan have no valid claims because there are no “current injuries” for which the courts can provide relief. However, the appeals court acknowledged Aref or Jayyousi could be re-designated for a CMU at any time. CCR also argues the BOP relied on “flawed information” to designate them for CMUs in the first place, and that information remains in prison files.

Voluntarily ceasing a violation of due process rights, according to the appeals court, only cancels the case if the violation is unlikely to occur again or if relief has been provided to get rid of effects of the violation. The appeals court stated the government bears the “heavy” burden of making it absolutely clear “wrongful behavior” could not happen again.

While the appeals court revived a case against the BOP for violating due process rights, which is significant, it shut the door on other critical issues.

CCR contended placement in the secretive prison units can stigmatize a person. The appeals court rejected this idea as “irrelevant” because not every CMU inmate is “associated with terrorist activities,” which is questionable given the fact that the units were established for the express purpose of preventing inmates with “terrorism-related convictions” from communicating with “extremist groups outside the prisons.” If inmates not associated with terrorist activities are held in the units, it would seem to be inappropriate and relevant to allegations of constitutional rights violations.

On the issue of due process, the appeals court forebodingly noted, “Appellants are challenging fundamentally predictive judgments in an area where administrators are given broad discretion, and the government’s legitimate interests in maintaining CMUs must be accorded substantial weight.”

This can be read as an instruction to the district court to acknowledge Aref, Jayyousi, and McGowan had rights but that BOP officials had the discretion to justifiably impede or constrain those rights.

Leslie Smith, the former chief of BOP’s Counter-Terrorism Unit (CTU), died on March 16, 2015. The government did not notify the appeals court of his death until December 22, 2015, after the appeal started. It insisted Smith’s death extinguished the allegations brought by the plaintiffs because he was the one responsible for the decisions that led to the alleged wrongdoing. The appeals court disagreed.

But the appeals court decided Smith is entitled to “qualified immunity.” He could not have known his actions would violate any clearly established rights.

The appeals court agreed with the district court that Smith could rationally interpret Jayyousi’s prayer as an attempt to “radicalize” other prisoners, which made him a “security risk.”

“Although appellants claim Smith exaggerated the contents of the remarks, several portions rationally could have been considered troubling, particularly when Jayyousi stated ‘you are here because you are Muslim, not because you are a criminal’ and cautioned ‘it is not U.S. versus Jayyousi; it is U.S. versus Islam,'” the court argued.

“Jayyousi also asserted the CMU was created from evil, and that the suffering faced by Muslim inmates is ‘why we martyr.’ Prison staff were concerned about the sermon at the time it was given, as evidenced by the several emails and follow-ups that ensued.”

“That Jayyousi was cleared of any wrongdoing through the prison disciplinary process does not render it unreasonable for Smith, as the head of BOP’s CTU, to consider the content of Jayyousi’s statements in evaluating his CMU placement,” the court stated, “especially the portions that indicated Jayyousi may have been continuing some of the same actions that led to his incarceration.”

The appeals court treated McGowan’s claims of rights violations similarly. It took no issue with his placement in a CMU in 2008 because his conviction involved “domestic terrorist activity and that he continued to communicate with individuals outside the prison involved in extreme environmental advocacy.”

“While the First Amendment may protect this sort of speech and association generally, those protections are less robust in the prison context,” the appeals court contended. “Moreover, placement in the CMU did not force McGowan to give up all methods of communication; it merely limited the frequency and amount. Even assuming McGowan could make out a First Amendment violation (an unlikely prospect), he certainly cannot show Smith violated any clearly established right when he recommended designation to the CMU.”

It further disagreed with the allegations that McGowan was put back in the CMU in 2011 in retaliation for protected political speech.

“After being returned to the general population, McGowan asked his wife to have his attorney send him law enforcement sensitive documents, in an apparent attempt to circumvent communications monitoring. It was reasonable for an officer in Smith’s position to consider this attempted end-run around the prison’s monitoring systems when deciding whether re-designation would be prudent.”

Both Jayyousi and McGowan were never informed of what led to their move to prison units, which would isolate them from the population as well as their families. They were not told to stop conduct or else they would be punished. It was only during discovery that McGowan learned he was moved from a federal facility in Sandstone, Minnesota to a CMU at the facility in Marion because he corresponded 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 stated.

Jayyousi’s “Notice of Transfer” indicated his “offense conduct involved use of ‘religious training to recruit other individuals in furtherance of criminal acts in the country.” It included “significant communication, association, and assistance to al Qaida.” But none of Jayyousi’s sermon specifically encouraged inmates to join al Qaeda, and the appeals court never suggested in its decision that he was acting as an al Qaeda recruiter, as the BOP contended to justify placement in a CMU.

As a result of CMU placement, “Jayyousi was not able to hug his young daughters for almost five years,” and, “McGowan was unable to embrace his wife for nearly four years.” Aref was unable to make physical contact with his children for 47 months, while he was in the CMU, and called it a “kind of torture.”

Meeropol believes the appeals court’s decision finally opens the door for a decision on “previously-secret information” disclosed through the lawsuit. Particularly, “Documents that show a pattern of discrimination and retaliation in CMU placements made possible by systemic due process violations.”

Previously, Meeropol described these documents in an interview on the “Unauthorized Disclosure” podcast. They showed the BOP initially had no process for deciding who should be placed in CMUs. Prisoners would receive a one-page notice that did not describe why they were to be sent to this unit. Instead, the notice reflected why another office in the BOP thought the prisoner should be transferred to a CMU.

It did not include all the reasons an office considered it necessary. Often, the reasons were incorrect or incomprehensible. Prisoners attempted to challenge their placement. They used the processes setup by BOP to challenge their placement and find out why they were in restrictive conditions. The BOP would merely restate information prisoners had already seen, which Meeropol called “truly Kafkaesque.”