[Ppnews] Gitmo in the Heartland
Political Prisoner News
ppnews at freedomarchives.org
Sat Mar 12 10:07:47 EST 2011
Gitmo in the Heartland
Alia Malek | March 10, 2011
Research support for this article was provided by
the Investigative Fund at The Nation Institute.
On the evening of May 13, 2008, Jenny Synan
waited for a phone call from her husband, Daniel
McGowan. An inmate at Sandstone, a federal prison
in Minnesota, McGowan was serving a seven-year
sentence for participating in two ecologically
motivated arsons. It was their second wedding
anniversary, their first with him behind bars. So
far his incarceration hadnt stopped him from
calling her daily or surprising her with gifts
for her birthday, Valentines Day and Christmas.
But Jenny never got a call from Daniel that nightor the next day, or the next.
It was only days later that Jenny heard from a
friend that Daniel was in transit, his
destination Marion, Illinois. She quickly
researched Marion and learned that it housed both
a minimum- and a medium-security facility.
Daniel, however, was classified as a low-security
prisoner, a designation between minimum and
medium. Even though he had a perfect record at
Sandstone and had been recommended for a transfer
to a prison closer to home, Jenny still didnt
think it was likely that Daniel would be stepped
down to minimum security. But it made no sense
that he would be moved up to medium security.
By May 16 the inmate locator on the Federal
Bureau of Prisons (BOP) website showed Daniel in
a variety of places, including a federal
correctional facility in Terre Haute, Indiana.
After speaking with several people at the BOP,
Sandstone and Terre Haute to no avail, Jenny
e-mailed friends, This is seriously like pulling fucking teeth.
Finally on June 12, one month after their missed
call, Daniel telephoned Jenny. He was still in
transit and had only a few moments to speak. He
was definitely going to Marion, where he heard he
would be housed in something called a
Communications Management Unit (CMU). He had no
idea why he was being transferred. He simply had
been told he was moving, given thirty minutes to
pack and thrown into the hole until he was
moved. All he knew was that the CMUs were
supposedly run out of Washington and placed
severe restrictions on phone calls, mail and
visits. He was anxious about his new placement
and asked Jenny to find out all she could about Marion.
But Jenny couldnt find much. There was nothing
on the BOP website about CMUs or a special unit
at Marion. She did find a few scattered articles,
all about a Terre Haute CMU, described as a
secret experimental unit for second-tier
terrorism inmates who were almost all Arab and Muslim Americans.
There was, in fact, little to be found; the Bush
administration had quietly opened the CMUs in
Terre Haute and Marion in December 2006 and March
2008, respectively, circumventing the usual
process federal agencies normally follow that
subjects them to public scrutiny and
transparency. The first whisper of what the
government was planning reached public ears in
April 2006, when the BOPin accordance with the
Administrative Procedure Act (APA)published its
proposed rule for Limited Communication for
Terrorist Inmates. Under the APA, federal
agencies like the BOP must publish notice of any
new regulations and solicit public comments in
order to operate legally. After a period of
review, the agency publishes the finalized rule.
In the 2006 rule, the BOP proposed restricting
the communications of inmates with a link to
terrorist-related activity to one six-page
letter per week, one fifteen-minute call per
month and one one-hour visit per month, limited
to immediate family members. The rule left it to
the discretion of the warden whether visits would
be contact or noncontact. (As a point of
comparison, the BOP generally allows most
prisoners 300 minutes of calls per month and
places few caps on the number or duration of
visits prisoners may receive. Even at the only
federal Supermax, inmates are allowed thirty-five hours of visits a month.)
Several civil rights groups, led by the ACLU,
submitted comments criticizing the proposed rule
as flawed and potentially unconstitutional. The
rule also appeared to be unnecessary, as the law
already allowed monitoring and restricting
inmates communications to detect and prevent
criminal activity. After the period for comments
closed in June 2006, observers waited for the BOP
to publish its finalized rule.
Then in February 2007 came a stunning revelation:
the BOP had not only abandoned the rule-making
process; it had apparently bypassed it altogether
by opening a prison unit in December 2006 in
which all the inmates were subject to
communications restrictions almost exactly like
those described in the proposed rule. This secret
unit came to light when supporters of an
Iraqi-born American physician, Rafil Dhafir, made
public a letter he had written describing his
harrowing transfer to a new prison unit in Terre
Haute. He called it a nationwide operation to
put Muslims/Arabs in one place so that we can be
closely monitored regarding our communications.
(In 2005 Dhafir had been sentenced to twenty-two
years in prison for violating sanctions against
Iraq by sending money to a charity he had founded
there, as well as for fraud, money laundering,
tax evasion and a variety of other nonviolent
crimes. He had no terrorism convictions or charges.)
In his letter Dhafir reported that at the time
there were sixteen men in the CMU, fourteen of
whom were Muslims and all but one of those were
Arab. They had been told by prison officials that
the unit was an experiment. Written material they
received informed them that they would be
entitled to one fifteen-minute call a week, that
their communications had to be in English only
and that their visits would all be noncontact; it
made no mention of terrorism. According to
Dhafir, the inmates were particularly devastated
at the prospect of not being able to hug or kiss
their families and of having so little time to
talk with them. For those who didnt speak English, there was particular panic.
Legal advocates were shocked by the discoveryand
by the BOPs impunity. According to William
Luneburg, former chair of the American Bar
Associations administrative law practice section
and a professor of administrative law, the BOP
action was grossly irregular and arguably
illegal. It is not a normal thing for agencies
legally bound by the APA to propose some new
program, to start through the public rule-making
process and then basically not complete it, and
then to decide to go ahead and do it on their
own. Or as David Shapiro of the ACLUs Prison
Project says, Essentially these CMUs are being
operated in the absence of any rules or policies that authorize them.
The media, however, paid scant attention to the
CMUs, save for a few articles, the most notable
by Dan Eggen in the Washington Post, which Jenny
found during her frantic Internet search for
information. All the articles noted that the CMUs
were almost entirely filled with Muslim and Arab prisoners.
Then in March 2008, the BOP established by memo a
second CMU, at Marion. Two months later, Daniel
McGowan, who is neither Muslim nor Arab, was
moved there. In June 2008, Andy Stepanian,
another non-Arab, non-Muslim low-security inmate,
was sent to Marion for the last six months of his
three-year sentence for conspiring to violate the
Animal Enterprise Protection Act of 1992. The
only notice he received after his transfer said
that he has known connections to Stop Huntingdon
Animal Cruelty (SHAC) and the Animal Liberation
Front (ALF), groups considered to be domestic
terrorist organizations. Enhanced review and
control of inmate communications, it claimed,
is required to assure the safe functioning of
the correctional facility, surrounding community and American public.
According to Stepanian, prison staff referred to
non-Arab and non-Muslim inmates as balancers.
One white guard comforted Stepanian, who had
received biweekly visits from his fiancée at his
previous prison, saying, Youre nothing like
these Muslims. Youre just here for balance. Youre going to go home soon.
* * *
Based on these and similar reports, observers
began to speculate that because of criticism, the
BOP was trying to improve the CMUs racial and
ethnic demographics.The BOP, however, told The
Nation, Race, religion and ethnicity are not a
basis for designation decisions. Nonetheless, as
of this writing, the BOP reports that eighteen of
thirty-three prisoners at Terre Haute (55
percent) and twenty-three of thirty-six at Marion
(64 percent) are Muslim. Muslims make up just 6
percent of the federal prison population.
The BOP declined to disclose the CMU inmates
names or convictions. It did, however, provide a
partial list of examples of activities that
might land an inmate inside a CMU, including
being convicted of or associated with
international or domestic terrorism; repeated
attempts to contact victims or witnesses; a
history of soliciting minors for sexual activity;
a court-ordered communication restriction;
coordinating illegal activities from inside
prison and a disciplinary history that includes
continued abuse of communications methods.
According to the BOP, twenty-four (73 percent)
and twenty-three (64 percent) of the inmates at
Terre Haute and Marion, respectively, were
assigned to the CMUs because of terrorism-related reasons.
As the populations of the CMUs grew, civil rights
groups like the Center for Constitutional Rights
began to receive letters from inmates.
Eventually, CCR attorneys Alexis Agathocleous and
Rachel Meeropol communicated with a majority of
the inmates. They quickly noticed that in many
cases there was nothing in inmates disciplinary
recordsmany of which were cleanor
security-level designations that would suggest
they warranted such drastic isolation. Indeed,
convicted terrorists like Times Square bomber
Faisal Shahzad and shoe bomber Richard Reid are
housed not in a CMU but in high and maximum
security prisons in Colorado. Many of the CMU
inmates will eventually be released; eleven
already have been. Nine others have been
transferred back to general population housing.
Of the CMU inmates who are there because of a
link to terrorism, Meeropol says, The vast
majority of these folks are there due to
entrapment or material support convictions. In
other words, terrorism-related convictions that
do not involve any violence or injury.
Bound by confidentiality, Meeropol declined to
name these inmates, but The Nation was able to
identify several. They include the officers of
the Holy Land Foundationa now-defunct US-based
Islamic charity that sent funds to social
programs administered by Hamas, a US-designated
terrorist organizationand the Lackawanna Six,
who admitted to traveling to an Al Qaeda training
camp before the 9/11 attacks. Some of the notable
entrapment cases include those of Shahawar Matin
Siraj, convicted for taking part in a plot
planned by a paid FBI informant to bomb Herald
Square, and Yassin Aref, whose underlying act was
simply witnessing a loan in another plot planned by an FBI informant.
CCR attorneys also noticed the presence of CMU
inmates who had neither links to terrorism nor
communications infractions. They fell into three
general groups, with occasional overlaps. The
first had made complaints against the BOP either
through internal procedures or formal litigation,
and their placement appeared retaliatory. The
second held unpopular political views, both left-
and right-leaning, from animal rights and
environmental activists to neo-Nazis and extreme
antiabortion activists. The third seemed to be
Muslims, including African-American Muslims,
whose convictions had nothing to do with
terrorism and ranged from robbery to credit card fraud.
The brief reasons given for transferring these
prisoners into CMUs varied, but in several cases
their designation was based on conduct that had
already been successfully managed at other
institutions without restricting communications
or family visits. The reasons were often vague:
for example, that inmates had engaged in conduct
while incarcerated to recruit and radicalize
other inmates. When pressed for specific evidence
about such allegations in interviews and FOIA
requests, the BOP declined to provide additional information.
On March 30, 2010, CCR filed a lawsuit against
the government on behalf of several CMU inmates
and their families, including Jenny and Daniel.
In Aref v. Holder, CCR charges that the
government not only violated the APA in
establishing the CMUs but also violated the
First, Fifth and Eighth Amendments. CCR alleges
that designation to the CMUs was discriminatory,
retaliatory and/or punitive in nature and not
rationally related to any legitimate penological
purpose or based on substantiated information.
Rather, CCR contends that the inmates
designation was based on their religion and/or
perceived political beliefs. Moreover, since
there had been no real notice, hearing and
appeal, CCR alleges due process violations as
well. The extreme nature of the restrictions also
raises the issue of cruel and unusual punishment.
CCR also argues that the communications
restrictions impeded the free speech and
association rights of the family members.
Eight days after CCR filed suit, the BOP suddenly
gave notice of a proposed rule titled
Communication Management Units. In it the Obama
administration kept the Bush-era communication
restrictions while broadening their scope. While
the 2006 proposed rule was limited to people with
an identifiable link to terrorist-related
activity, the Obama-era rule can be applied to
any inmate, including persons held as witnesses, detainees or otherwise.
The ACLUs Shapiro says, When Obama came into
office, we hoped that the use of CMUs would be
revisited, and we recommended that BOP withdraw
the first rule-making. But it is unclear if any
such review took place. The BOP declined to say
if the Obama administration had conducted a
review before deciding to maintain the CMUs, or
even if it had reviewed the assignment of current inmates.
Starting his presidency with two CMUs established
by the Bush administration outside the APA
process, Obama, says Luneburg, essentially had
two choices. He could totally abandon it or try
to make lawful what was perhaps arguably an
unlawful situation. Taking the latter approach,
the BOP accepted comments about the new rule
until June 7, 2010. It recently announced it
would publish the finalized rule in
Octobersixteen months after the close of the
comment period. According to Luneburg, that delay
is surprising, given that the rule consists
largely of legal issues, as opposed to complex
scientific claims that underlie rules published by agencies like the EPA.
During the comments phase, submissions poured in
from civil rights groups, current and former CMU
inmates, inmates families and mental health
professionals. One theme was common to many: the
communications restrictions (including the
inability to touch) were devastating to family
integrity. The writers argued that strong
connections to family were essential for a
variety of reasons, such as mental health,
rehabilitation, prison order and safety, staying
recidivism and societal reintegrationtruths long
recognized by psychologists, corrections professionals and the BOP alike.
As University of Delaware professor of sociology
and criminal justice Christy Visher explains,
The lack of connection to family makes it harder
to think of a plan for post-release, and if they
have no hope for life after release, then theyre
less likely to be making behavior change.
Visher, who has looked at the question of how
best to reintegrate released convicts for the
National Institute of Justice, says, Contact
visits where you can hold a child on your lap or
touch your wife are very important.
* * *
This past November, before driving the 650 miles
from Dallas to see her husband, Ghassan Elashi,
at the Marion CMU, Majida Salem cut and colored
her hair. Why bother? one of her daughters
asked, alluding to the fact that since Majidas
visit would not be private, her head would be covered by her hijab.
Because Im going to be sitting with Baba, she
answered, referring to the man she had married
twenty-six years before in Jordan, choosing him
after turning away many others. She had felt that
his devotion to God mirrored her own.
To the government, however, Ghassanco-founder of
the Holy Land Foundation, once the largest US
Muslim charitywas a material supporter of
terrorism. Ghassan has never been accused of
engaging in violence, but because the HLF
sponsored schools and social welfare programs in
the Occupied Territories alleged by Washington to
be controlled by Hamas, he was charged with
materially supporting terrorism. He was convicted
in November 2008, following a 2007 mistrial in
which the government failed to convince jurors of its case.
Majida hadnt seen Ghassan since the previous
Thanksgiving, when he was still at the
low-security prison in Seagoville, Texas, not far
from their home. He was moved to Marion in April
2010. The distance ended their weekly visits and
essentially left Majida to raise a family of six
children, the youngest of whom had Down syndrome, by herself.
They tried to maintain contact nonetheless.
Majida shared her weekly fifteen-minute call with
her children and in-laws, co-parenting with
Ghassan in these morsels and through e-mails,
which arrived days after they were written and
only after a detour through Washington. Other CMU
families had given up on visits or stopped
bringing the children, who were often traumatized
by the inability to touch their fathers or speak
to them in a native language. But the Elashis
were determined to make it work, so on
Thanksgiving morning, with three of her children
and her mother-in-law, Majida set out for Marion.
Once inside the prison, they were led toward the
CMU, passing through a series of sliding barred
doors. In the periphery, they could see the
general population visitation room, spying a few
families, UNO cards and a play area for kids.
They were ushered into a 5-by-7 room with a
Plexiglas wall at its center. Behind the
Plexiglas, in a room that mirrored theirs, Ghassan waited to greet them.
The five of them crowded around three receivers,
which would record their conversation and
transmit it to BOP officials in Washington. When
they gushed at how healthy Ghassan looked, he
lifted his sleeve and flexed his bicep.
Pilates, he told them. When he told them he now
had a six-pack, his teenage sons begged him to
show them, but he demurred. Soon they realized
they could hear through the glass, so they hung
up the receivers and spoke naturally. Quickly a
guard reprimanded them: all communication had to be through the receivers.
Majida and Ghassan spoke about the boys, how they
were doing in school and how the
second-to-youngest was acting up. Ghassan turned
to him, doing his best to advise him from behind
the barrier. His son burst out, I need you! I need you!
Toward the end of the visit, to keep things
light, Ghassan began demonstrating Pilates
exercises. Having put the receiver down, he
flashed with his fingers the amount of seconds he
held each pose. Guards rushed in on both sides,
demanding to know what Ghassan was doing. Teaching them Pilates, he answered.
They stayed until they were kicked out, the kids
signing off with pantomimed high-fives and Majida
blowing him a kiss while touching the glass. She
wanted to be alone with him, without the barrier,
and there was so much more she wanted to express.
But that would have felt like stealing from the children.
* * *
Ghassans incarceration at Marion demonstrates
one of the biggest problems with the CMUs and
with the terrorist designation generallyhow
broadly and capriciously they are applied. It is
one thing to use restrictive isolationist tactics
against the leader of a gang or terror group who,
if he could communicate freely with the outside
world, would wreak violence on innocent
peoplethats not an illusory concern, says
David Cole, of Georgetown University Law School
and The Nations legal affairs correspondent.
But when you define terrorist activity to
include material support that can involve no
violent activity and no intentional support of
violent activity, then you are relegating
nonviolent offenders to these very extreme
conditions that are entirely unwarranted.
The BOP declined to say whether it differentiates
between nonviolenteven humanitarianactivities
and violent activity in determining CMU
assignment for a terrorist-related link. The
profiles of inmates like Ghassan would suggest it
doesnt, and that, in fact, the link to terrorism can be quite tenuous.
Consider, for example, the case of Sabri
Benkahla, whose CMU incarceration the ACLU
challenged in 2009. In 2003 the government
accused Benkahla of materially supporting a
terrorist-related group. When prosecutors failed
to secure a conviction at trial, he was charged
and convicted of grand jury perjury. At his
sentencing, the US District Judge declared
unequivocally that Benkahla is not a terrorist
and noted having received more letters on
Benkahlas behalf than any other defendant in
twenty-five years, including one from Congressman
James Moran, who described Benkahla as an
upstanding and productive member of society.
Although Benkahla lacks a terrorism-related
conviction, he was nonetheless transferred to a
CMU because of a terrorist-related link, asserted
by the government. Before the court could reach a
decision in the ACLU case, which challenged the
legality of the CMUs on APA grounds, the BOP
moved Benkahla back to the general population, and the case was dismissed.
David Shapiro, who was also on Benkahlas team,
sees a lack of clear criteria for CMU placement
as the crux of the problem. People are
overclassified, he says, and the level of
restriction they are placed under bears no
rational relationship to the security threat that they actually pose.
Visher concurs. We are not making good decisions
about who is dangerous, she says. To remedy the
problem and to balance family and penological
interests, Visher proposes risk profiles and
careful examination by an independent party.
Factors that should be considered, she says, are
a persons pattern of communication with
terrorist groups, his history of violence, good
behavior and strong connections to the community.
On July 21, 2010, the government answered CCRs
lawsuit with a motion to dismiss. In its written
arguments, it pleaded that it deserves deference
in determining what restrictions are reasonably
related to legitimate penological interests. It
also argued that several of the claims, including
those of Jenny and Daniel, are moot, as on
October 19, after more than two years, Daniel was
moved out of the CMU and back to the general population.
Last Thanksgiving, Jenny was finally able to wait
for Daniel in Marions general visitation room,
which she used to walk wistfully past when she
visited the CMU. That was behind her now, she
thought, as were the once-a-week fifteen-minute
calls. When she saw Daniel, she embraced him and
gave him a big kiss. They spent the hours talking
and playing UNO. When they didnt feel like
saying anything, they sat in the silence they
felt they could finally afford, letting a simple touch speak for itself.
A few hours into their visit, Jenny saw the
Elashi family as they were led down the hall to
the CMU. She felt her eyes tear up. She found it
especially hard to watch a whole family going to
visit their father, their husband, their son
under such conditions. They looked so solemn;
Jenny felt guilty that they wouldnt be able to
embrace as she and Daniel could. Later that night
she posted on Facebook: Thankful for hugs and brief kisses.
But time for hugs and brief kisses would remain
short-lived. On February 24, Daniel was suddenly
transferred back to the CMU, this time to Terre
Haute. The government gave the court notice that
in light of Daniels reassignment, it was
withdrawing its defense that Daniels claims were
moot; CCR has since asked the court to expedite
its consideration of the motions to dismiss.
The notice was almost identical to the one Daniel
had been given the last time, but it included a
new sentence. The BOP asserted that Daniels
incarceration conduct has included attempts to
circumvent communication monitoring policies,
specifically those governing attorney-client
privileged correspondence. In keeping with BOP
practice, Daniels notification does not state
what evidence or acts serve as the basis for
these claims. Neither he nor Jenny knows why he
is there. They know only that their next visit will be brief and behind glass.
522 Valencia Street
San Francisco, CA 94110
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