[Ppnews] Gitmo in the Heartland

[Political Prisoner News]

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 hadn’t stopped him from 
calling her daily or surprising her with gifts 
for her birthday, Valentine’s 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 didn’t 
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 couldn’t 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 didn’t speak English, there was particular panic.

Legal advocates were shocked by the discovery­and 
by the BOP’s impunity. According to William 
Luneburg, former chair of the American Bar 
Association’s 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 ACLU’s 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, “You’re nothing like 
these Muslims. You’re just here for balance. You’re 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 ACLU’s 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 they’re 
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 Majida’s 
visit would not be private, her head would be covered by her hijab.

“Because I’m 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 hadn’t 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.

* * *

Ghassan’s 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 
people­that’s not an illusory concern,” says 
David Cole, of Georgetown University Law School 
and The Nation’s 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 
doesn’t, 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 
Benkahla’s 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 Benkahla’s 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 person’s 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 CCR’s 
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 Marion’s 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 didn’t 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 wouldn’t 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 Daniel’s reassignment, it was 
withdrawing its defense that Daniel’s 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 Daniel’s 
“incarceration conduct has included attempts to 
circumvent communication monitoring policies, 
specifically those governing attorney-client 
privileged correspondence.” In keeping with BOP 
practice, Daniel’s 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.

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