Senate Passes FOIA Bill During Sunshine Week, Bringing Reform One Step CloserMarch 16, 2016
The Very Existence of the NSA Is IllegalMarch 18, 2016
On March 15, 2016, a three-judge panel of the Circuit Court for the District of Columbia, heard oral arguments in Aref, et al. v. Holder, a case challenging the Federal Bureau of Prisons’ use of “Communications Management Units” or CMUs. CMUs are experimental prison units that have been described as, “Guantanamo North” or “Gitmo in the Heartland.” The CMUs, as their name would imply, severely restrict the communications of the individuals held in them, allowing only one visit with immediate family members per month. These visits are not “contact” visits meaning prisoners cannot touch their loved ones and must talk to them through a thick plexiglass barrier. When the CMUs were first opened individuals housed in them were allowed one fifteen minute phone call per week, but since then regulations have been expanded to allow them two preapproved phone calls per week. However, they may be restricted to only three phone calls per month and with immediate family only. Phone calls and visits must be carried out in English, unless a pre-approved translator is present to provide simultaneous translation. Letters, which are limited to six pages, must first go through a special counterterrorism unit in West Virginia before being sent to the intended recipient.
In 2011, CCR brought a challenge to CMUs. In 2015, following the end of discovery, the district court granted summary judgement in favor of the government. CCR is arguing that the court erred in doing so and that their claims should be reinstated because CMUs violate the due process rights of the plaintiffs, that one plaintiff –Kifah Jayyousi – had been retaliated against for First Amendment protected speech, and that the plaintiffs are entitled to nominal damages stemming from harms suffered as a result of being in CMUs.
The due process claim is premised on the argument that the plaintiffs have a liberty interest in not being placed in a CMU, as one cannot be deprived of liberty without due process of law. For an incarcerated individual to be said to have a liberty interest, the conditions to which they are subjected to must be “atypical” when compared to the normal hardships of prison life. The trial court granted summary judgement to the government on the basis that CMUs were not atypical when compared to “administrative segregation,” which was previously found not to infringe upon a liberty interest by courts. However, as CCR argued, while administrative segregation may be in some respects harsher than CMUs, its duration is significantly shorter. The average time spent in administrative segregation is measured in weeks, whereas some of the plaintiffs spent as much as five years in a CMU. In addition to the duration, confinement in CMU also come with a unique stigma, as they are widely associated with terrorism, which is not typical of administrative segregation. Finally, Courts have in the past found that other deprivations in themselves, which by themselves may not be atypical, when combined with a stigmatizing classification, such as classification as a sex offender, do constitute a liberty interest.
The second issue pertains to the First Amendment retaliation claim. While Jayyousi was recommended for transfer out of the CMU by the warden and unit team, it was denied on the basis that in 2008 Jayyousi had given a sermon that “incited violence.” The transcript of this sermon reveals this claim is fundamentally false: Jayyousi cited Nelson Mandela and John McCain as examples of individuals who had been imprisoned, but through patience were able to eventually persevere. He extolled other Muslim prisoners to be patient, as well so that they too might some day persevere. The trial court granted summary judgement in favor of the government, on the basis that courts grant a great deal of deference to prison officials in determining what is or is not a security risk. However, CCR argued that deference should not be given to claims that are odds with the undisputed facts.
The final issues stem from damages being sought for a variety of harms, including First Amendment harms, reputational harms, and family relationship harms. Under the Prison Litigation Reform Act (PLRA), incarcerated or formerly incarcerated individuals cannot recover for emotional or mental damages barring a physical harm. The trial court held that this barred the claims. Yet, as CCR argued that while the harms alleged, like Constitutional harms, may be intangible they are not the same as emotional or mental damages and are thus not barred PLRA.
What Are CMUs?
While not solely limited to terrorist related offenses (for example, per guidelines an individual who attempts to carry out crimes from prison, such as the murder of a judge, or dealt drugs in prison would be eligible to be in a CMU), CMUs are deeply rooted in the War on Terror and terrorism-related fear served as the impetus for their creation, and continues to be one of the main justifications for the continued confinement of individuals in CMUs. However, those confined in CMUs are overwhelming Muslim and alleged connections to terror are often quite nebulous. For example, a 2011 Nation article details how Sabri Benkahla (who was not a plaintiff in the case), who was convicted of grand jury perjury, but acquitted of terrorism related charges, was transferred to a CMU due to a “terrorist related link.” After the ACLU brought a lawsuit on his behalf, he was transferred back into the general population. Other individuals held in CMUs have no apparent link to terrorism and happen to be black Muslims convicted of entirely unrelated crimes, like robbery, on the grounds they have attempted to “radicalize” other prisoners.
Although a disproportionate number of individuals housed in CMUs are of the Muslim religion, individuals who were convicted of so-called ecological or animal rights related “terrorism” were later moved into these cells, as well individuals from across the ideological spectrum who held unpopular political views. While this type of singling out of individuals for their political beliefs is insidious, comments made by guards reveal other disturbing aspects. According to Andy Stepanian, who was convicted of conspiracy to violate the Animal Enterprise Protection Act, he was told that he was just brought in as a “balancer” and that he was “nothing like these Muslims.” Comments like this have led to allegations that the addition of other prisoners was merely meant as a cover for the disproportionate number of Muslims being housed in CMUs.
The draconian limitations placed on human contact, the disproportionate impact on Muslims, and their use to suppress unpopular political ideas are all reasons why CMUs must be abolished. The Circuit Court for the District of Columbia, however, is not ruling on the Constitutionality of CMUs or even the claims brought by CCR. Instead, the Circuit Court will decide whether a trial court erred in granting summary judgment in favor of the government, as opposed to granting a jury trial. There have been other attempts to challenge CMUs in court, all of which were thwarted. Being able to proceed on the claims would be an important step in challenging CMUs, as well as getting justice for the plaintiffs in the case.