[Pnews] Inside the Kafkaesque World of the US’s 'Little Guantánamos'

[Prisoner News]

  Inside the Kafkaesque World of the US’s 'Little Guantánamos'

By Annie P. Waldman


*http://www.vice.com/read/inside-the-kafkaesque-world-of-the-uss-little-guantanamos*

We sat together on her couch, her small, eight-year-old hands clutching 
a photo of her father, Yassin Aref.  “My daddy only held me twice before 
I was five,” Dilnia told me. For the first five years of her life, she 
only knew him as the man on the other side of a plexiglass window in a 
communication management unit in an Indiana federal penitentiary.

Prisoners describe the communication management units, or CMUs, as 
“Little Guantánamos.” In 2006, the Bureau of Prisons created two of 
these units to isolate and segregate specific prisoners, the majority of 
them convicted of crimes related to terrorism. The bureau secretly 
opened these units without informing the public and without allowing 
anyone an opportunity to comment on their creation, as required by law. 
By September 2009, about 70 percent of the CMU prisoners were Muslim, 
more than 1,000 to 1,200 percent more than the federal prison average of 
Muslim inmates.

In the CMUs, prisoners are subject to much stricter rules than in 
general population. They are limited to two 15-minute telephone calls 
per week, both scheduled and monitored. Visits are rarely permitted, and 
when family members are allowed to visit, they are banned from physical 
contact, limited to phone conversations between a plexiglass window. 
This differs from the general population, where prisoners can spend time 
with their visitors in the same room. To further the isolation, some of 
the CMU prisoners are held in solitary confinement, with only one hour 
out of their cells each day.

After nearly three years of imprisonment in two CMUs, one in Indiana and 
one in Illinois, Aref and four other inmates decided to take action. On 
April 1, 2010, Aref, Daniel McGowan, Avon Twitty, Royal Jones, and Kifah 
Jayyousi filed a federal civil-rights lawsuit with the Center for 
Constitutional Rights against the Department of Justice and the Bureau 
of Prisons. The lawsuit, /Aref et al. v. Holder/ 
<http://ccrjustice.org/ourcases/current-cases/aref,-et-al.-v.-holder,-et-al.>, 
ignited the first attempt to expose the unconstitutionality of the CMUs. 
The prisoners argue in their complaint that the CMUs violate the First, 
Fifth, and Eighth amendments of the United States Constitution, as well 
as the Administrative Procedures Act. After nearly four years, and to 
the surprise of many involved, the case continues on and will go to 
trial or into settlement this year. The attorney for the prisoners is 
hopeful that the case will be settled with a summary judgment in March, 
vindicating their claims.

Since the original filing, the government has pushed hard to invalidate 
their case, successfully dismissing three of the original five 
plaintiffs. After the filing of the lawsuit in 2010, all five plaintiffs 
were transferred out of the CMUs. Because they were no longer in the 
CMUs, the specific complaints of three of the plaintiffs were 
invalidated. Yet Aref’s and Jayyousi’s complaints challenged more than 
just their own imprisonment in the CMU. They disputed the 
constitutionality of the CMUs as a government facility.

Although many advocates expected their case to be dismissed in its 
entirety, Judge Barbara Rothstein of the Western District of Washington 
allowed the case to continue. If a judge rules in favor of the prisoners 
later this year, the CMUs will be required to fit current prison 
standards, and some believe that they could ultimately be closed down.

As an eight-year old, Dilnia doesn’t understand any of the implications 
of her father’s lawsuit. Like the rest of her family, she just wants him 
home.

* * *

Although Aref is the one behind bars, his family also feels imprisoned 
and under constant surveillance. His wife, Zuhur Jalal, 42, doesn’t work 
and stays at home, raising their four kids and waiting for news about 
her husband’s case. She longs for familiar people and things, especially 
her homeland, Iraq. Following the Kurdish genocide in Iraq in the late 
1980s, Aref and his family fled to Syria, and in 1999, the United 
Nations offered them asylum in the United States. They came to America 
looking for the freedom and basic human rights that they never had under 
Saddam Hussein’s regime.

They settled in Albany, New York, and when the city’s first mosque 
opened, in July 2000, Aref became its first imam. He viewed the members 
of his mosque as his family, regardless of how well he knew them or what 
their background was. His commitment to the mosque quickly became the 
beacon of Albany’s Muslim community.

Yet his accepting nature led to trouble when the FBI sent an undercover 
paid informant into the mosque. Instead of being skeptical, Aref took in 
the outsider without question. Within a few months, the informant had 
become close with Aref’s friends, including one of his closest friends, 
Mohammed Hossain. Hossain owned a failing pizza parlor, and the 
informant offered him a large loan, requesting Aref to witness the loan 
transaction, a common role for an imam. Aref did not hesitate. He 
counted the money and signed off on the agreement, as any notary public 
would have done. Neither he nor Hossain realized they were the objects 
of an FBI sting.

A few months later, the FBI arrested Aref and Hossain, raided their 
homes and the mosque, and interrogated their families. The informant had 
previously mentioned to Hossain that the money he had loaned him had 
been made from selling a surface-to-air missile, but Hossain had no 
involvement with the missile deal. And Aref says he had no knowledge of 
the deal at all. After a controversial trial, both men were convicted of 
conspiring to aid a terrorist group and money laundering. They were 
sentenced to 15 years in prison.

Judge Thomas J. McAvoy of the Northern District of New York requested 
that Aref be assigned to a local prison near his family because he had a 
newborn daughter. The Bureau of Prisons ignored this recommendation 
along with his status as “low security,” and sent him to the CMU in 
Terre Haute, Indiana. The bureau wrote a letter to the judge, explaining 
that it had denied the request because of unspecified “security reasons.”

When Aref was first arrested and made his one permitted phone call to 
his family to tell them that he was in jail, his 12-year-old daughter, 
Alaa, asked, “Why are you gone?” He told her that he didn’t know why, 
but he promised her that one day he would find out. While he was inside 
the CMU, his daughter’s question haunted him. He was depressed and 
anxious, and according to court documents, he became “obsessed about why 
he had been singled out for such restrictive confinement, and why he is 
perceived as dangerous.” He had fled his country because of Saddam 
Hussein, America’s main adversary during the Iraq War. Aref saw himself 
as an ally of the United States. He came to the United States with 
dreams of freedom and democracy. But soon after, in the post-9/11 
counterterrorism haze, he was persecuted.

While inside the CMU, the obstructive nature of the facility restricted 
not only Aref but his family as well. Telephone calls, their main 
permitted form of communication, were so difficult to organize that it 
would often discourage his family from calling. All calls had to be 
scheduled one week in advance and could only be made between 8 AM and 3 
PM during the week. Because the children were in school during this 
time, the family had to make the calls in the principal’s office of the 
school. Zuhur and her four children would gather around the 
speakerphone, trying to share the limited time. They never felt that it 
was enough.

During the first two years of Aref’s imprisonment, his family was only 
able to visit four times. They didn’t own a car, so for each trip, a 
close family friend would volunteer to drive them the nearly 1,000 miles 
to Indiana. Although the trip took 14 hours, the family was only allowed 
to have one four-hour visit per month. Steve Downs, a close friend of 
Aref’s, took the family on two of the trips. He tried to make it fun for 
the children and would let them pick out a motel, which they always 
chose for the best pool and restaurant. “It’s actually where they 
learned to swim,” he said. But these moments of fun were overshadowed by 
the distressing visits into the CMU. Several guards monitored their 
short visits, waiting for any violation of the seemingly arbitrary 
rules. During one visit, Downs pulled a pen out of his pocket to take 
notes, and immediately the guards stopped the visit and removed the 
family, stating that they had violated CMU code by using a “recording 
device.”

The visits were also emotionally draining. The children became upset 
with the sight of their father on the other side of the plexiglass. They 
would often cry. Aref and Zuhur also found these visits unbearably 
painful. They could see each other through the blurry window, but they 
could not touch or hug each other. And Aref could not hold Dilnia, a 
daughter he barely knew.

After four visits, Zuhur refused to bring the children to the CMUs 
anymore, believing they were too traumatic. Aref agreed, and for the 
last two years of his placement inside the CMUs, Aref did not see his 
family. Only after he was transferred to the general prison population 
was he able to see his children again.

In 2011, /New York/ magazine profiled Aref’s case and his time spent in 
the CMUs <http://nymag.com/news/features/yassin-aref-2011-7/>. In one of 
the first email exchanges that he had with press, he told journalist 
Christopher Stewart, “I am not spending my time, time is spending me.”

* * *

On a cold Saturday morning last November, Downs and I visited Zuhur’s 
apartment in a working-class neighborhood in Albany. He hadn’t stopped 
by in a while, and Zuhur seemed surprised, yet pleased, to see him. 
Children's shoes and textbooks littered the floor. An aged pizza box and 
a bottle of flat soda sat on a wooden table against the wall. A bare 
lightbulb lit the small living room, illuminating scuffed lime-green 
walls and hanging prayer tapestries.

“Zuhur, your husband is taking on the government and, if he succeeds, 
could stop the CMUs,” said Downs.

She barely showed a reaction to his words, except for her brow, which 
folded in deep lines of sorrow. “Does that mean he’ll come home?” she asked.

Downs looked away from her. His voice became softer. “I don’t know, 
Zuhur. But he could help a lot of people.”

“How can he help other people if he can’t even help himself?” she 
replied bitterly, brushing away tears from the corners of her eyes.

While in prison, Aref refused to resign himself to losing his family or 
his sense of self. He published a memoir about his life in Kurdistan, 
his trial, and the CMUs. He reached out to journalists to share his 
story. And largely, he worked with his fellow inmates and attorneys to 
prepare their lawsuit.

The lawsuit challenges the CMUs on two fronts: first, how the prisoners 
were selected for the CMUs, a due-process challenge; and second, why 
they were selected, a First Amendment challenge. The Bureau of Prisons 
classified the CMUs as control units (the same category as supermax 
prisons) defined by heavy communication restrictions. Prison authorities 
must tell inmates why and when they are being transferred to control 
units. They must also give the prisoners a chance to protest their 
designation to such a unit in a hearing. Once in a control unit, the 
Bureau of Prisons is required to provide regular reviews of prisoners’ 
placement in the unit.

“The CMU doesn’t have any of this,” said Alexis Agathocleous, one 
of lead attorneys, from the Center for Constitutional Rights. “All of 
our clients and everyone that we know of in the CMU sort of get picked 
up and taken to the CMU, and then get a piece of paper that says, 
‘You’ve been sent to a CMU, and here are the reasons.’ It’s a short, 
perfunctory paragraph, and often the information is inaccurate and 
unfounded. There is no disclosure of what the underlying allegations are.”

When inmates arrive at the CMUs, prison authorities are supposed to tell 
them that they can challenge their placement through an Administrative 
Remedy Process. But during the first few years of the CMUs, neither a 
review of placement nor a process took place. Many prisoners tried to 
uncover why they were there and how they could get transferred out, but 
no inmate or attorney figured it out.

“No one was transferred out of the CMU until we filed our lawsuit,” said 
Agathocleous. Only four years after the opening of the CMUs did the 
Bureau of Prisons begin to review cases for transferring out of the 
facility.

The lawsuit also contends that the protected religious and political 
speech of prisoners was used as a rationale to send them to the CMUs. 
“Perfectly legitimate, First Amendment–protected speech is the reason 
that the Bureau of Prisons is saying we need to put this person in the 
CMU,” said Agathocleous. Since the CMUs have 1,000 to 1,200 percent more 
Muslim inmates than the federal prison average, it is difficult to 
ignore the idea that the CMUs might have been created to segregate and 
restrict Muslim prisoners, whom the Bureau of Prisons saw as a greater 
security risk than non-Muslim prisoners. “Religious speech and religious 
identity have been used as a proxy for security risk,” said Agathocleous.

Aref’s lawsuit is not the first complaint against the creation of the 
CMUs. When the Bureau of Prisons first announced its plans to create 
CMUs with a new rule in the federal register in April 2006, the ACLU, 
the Legal Aid Society, and 16 other civil-liberty organizations came 
together to protest the development of the new institutions. The rule 
introduced heightened restrictions on the communication of inmates 
charged with, convicted of, or detained in connection with terrorism. 
Anyone the Bureau of Prisons deemed a risk to public and prison security 
could be transferred to these new units. The civil-liberty groups saw 
the suggested blanket ban on communication as unprecedented and 
unconstitutional, and infringing on First Amendment rights. They 
demanded that the rule be withdrawn.

The Bureau of Prisons ignored their demands. In September 2006, the 
inspector general of the Department of Justice reported that the Bureau 
of Prisons had moved forward on “several ongoing and proposed 
initiatives to improve the monitoring of communications for terrorist 
and other high-risk inmates.” Yet no one knew if the CMUs existed until 
the first prisoners were transferred to the CMU in Terre Haute, Indiana, 
in December 2006. They were transferred without any notice, hearing, or 
explanation. A few months later, the Bureau of Prisons created another 
CMU in Marion, Illinois, and more prisoners were transferred into this 
unit without notice or sufficient explanation.

Not only are the prisoners kept in the dark about the CMUs; the American 
public is as well. For the past 18 months, Human Rights Watch and the 
Human Rights Institute at Columbia University have been investigating 
human-rights abuses in the federal prosecutions of American Muslims 
since September 11, 2001. Much of their research revolves around the 
secretive CMUs. In August 2012, Human Rights Watch requested further 
information from the Bureau of Prisons, in accordance with the Freedom 
of Information Act. After months of waiting for the Bureau of Prisons to 
relinquish the information, Human Rights Watch and the Human Rights 
Institute filed a lawsuit in October 2013, to impel the government to 
provide the requested documents and data necessary for understanding the 
covert treatment of convicted citizens. They still have not received the 
requested information.

* * *

“I think that the Bureau of Prisons has been secretive in nature 
because, if this kind of information were to be widespread, there would 
be an outcry,” said Noor Elashi. Her father had been imprisoned in a CMU 
with Aref. But unlike Aref, who was transferred to a low-security 
prison, her father still remains in a CMU.

Elashi and I talked about her father in a small café in Manhattan as 
rain clouds haunted the November sky. She spoke slowly, choosing her 
words carefully as she recalled his stories from inside the CMU: how he 
lost visitation rights for putting his name on a yoga mat, how she 
rarely speaks with him because of his limited permitted phone calls, and 
how her relationship with her father has suffered because she cannot 
touch, hug, or smell him.

Elashi’s father, Ghassan, was charged under the ambiguous Material 
Support Statute for sending humanitarian aid, such as books and 
backpacks, to a Palestinian charity committee in Gaza. The prosecution 
claimed these committees were front organizations for Hamas, a 
US-designated terrorist organization, even though USAID and other 
international organizations had donated to the same committees. He was 
convicted and sentenced to 65 years in prison.

Elashi believes that what happened to her father and the other 
defendants in his case exemplify the prosecutorial bias against American 
Muslims after 9/11. His placement in a CMU furthers her belief that her 
father and many others like him were targeted, charged, and imprisoned 
for their religious beliefs. “Every aspect of today’s post-9/11 
prosecutions echoes the political persecutions that existed during the 
civil-rights movement and during World War II against the Japanese 
Americans,” she said. “I think things will change, but it’s an uphill 
battle. The truth will slowly unpeel itself as we continue to 
investigate, document, and witness.”

* * *

Under media scrutiny in 2009, the Bureau of Prisons increased the 
percentage of non-Muslims in the CMUs. Many inmates now believe that the 
non-Muslim prisoners were placed in the CMUs to balance the population 
and make the units appear less religiously segregated and secret.

One of the original plaintiffs in Aref’s lawsuit, Daniel McGowan, was 
one of these “balancers.” In 2007, McGowan was sentenced to seven years 
in prison on multiple counts of conspiracy and arson related to the 
destruction of two lumberyards. Originally, he was sent to a 
low-security prison and spent the majority of his time writing political 
articles on prisoners’ rights and environmental issues. Within a year, 
he was sent to a CMU.

“They claim that it’s not an isolation unit, and it’s not a punishment 
unit, but the way they treat you? It’s like you’re a killer,” McGowan 
told me. McGowan’s been out of prison for almost a year. Living in 
Brooklyn with his wife, he is waiting out his period of supervised 
release, which will be done in 2016.

He met me during his lunch break a couple weeks after he gave his 
witness deposition for the lawsuit against the CMUs. “It’s a horrible 
place. You’re under constant surveillance, and you’re in a tiny area. It 
feels like you’re being sat on,” he said. The only place he didn’t feel 
the eyes of the authorities was in the shower. Other than that, he 
always felt that he was being monitored: when he was alone in his cell, 
on the phone, in the yard, eating lunch, or even getting his teeth 
cleaned. There were extra eyes on the inmates of the CMUs; there was a 
sense of surveillance that he had never experienced in the standard 
prison system.

The 18th-century social theorist Jeremy Bentham envisioned a new model 
for incarceration. Prisons of the future would be shaped like a 
cylinder, with cells lining the curved walls and stacked on top of each 
other. In the center of the prison would stand a single watchtower, with 
windows that would allow prison guards to look out without prisoners 
looking in.

Bentham created this prison design to maximize the visibility of 
prisoners, while isolating them in individual cells, so they could never 
be sure when they were being watched and when they weren’t. The design, 
which he called the Panopticon, allowed a minimal number of prison 
wardens to watch over a large number of prisoners.

French philosopher and theorist Michel Foucault took the metaphor of the 
Panopticon one step further. In /Discipline and Punishment/, he wrote 
that the major effect of the Panopticon was “to induce in the inmate a 
state of conscious and permanent visibility that assures the automatic 
functioning of power.” In other words, under constant surveillance in 
the Panopticon, the inmates would internalize the monitoring and would 
begin to monitor themselves. Indeed, it was of little importance whether 
the prisoners were actually being watched—what mattered was that they 
thought they were.

McGowan hesitated when I asked him how the CMU’s surveillance had 
changed him. “You start surveilling yourself. You police your own 
behavior because you are aware that you are being watched all the time.”

Aside from the constant surveillance, McGowan rarely received any 
information on why he had been sent there and how he could appeal his 
transfer. A few days after the Bureau of Prisons had transferred him to 
the CMU without warning or reason, they gave him a one-page memo that 
stated in a short five-sentence paragraph why he had been transferred. 
Yet the memo only listed a summary of his conviction, with some of the 
details incorrect. Why he had been transferred to the CMU was still a 
mystery to him. “Even if you feel like there’s a reason to open up one 
of these units, you have to do it legally. You can’t just open it up and 
jack people in there.”

Before the judge dismissed McGowan as a plaintiff, the courts impelled 
the Bureau of Prisons to release new information on why he had been sent 
to a CMU. In a previously unseen memo 
<http://www.supportdaniel.org/files/motiontodismissex5.pdf>, the chief 
of the Bureau of Prison’s Counter Terrorism Unit, Leslie Smith, said 
that McGowan had been sent to the CMU due to some of his outspoken 
political views. In April 2013, McGowan wrote about the new document on 
the Huffington Post 
<http://www.huffingtonpost.com/daniel-mcgowan/communication-management-units_b_2944580.html>:

    It is becoming increasingly clear that the BOP is using these units
    to silence people, and to crack down on unpopular political speech.
    They have become units where the BOP can dump prisoners they have
    issues with or whose political beliefs they find anathema. In the
    months that come, with CCR's help, I hope to prove that in court and
    show what is happening at the CMUs. This needs to be dragged into
    the sunlight.

Less than three days after McGowan published his article on the 
Huffington Post, the Bureau of Prisons remanded him into custody for 
“publishing under his own byline,” a violation of his probation. 
Although McGowan was released after one evening and was not charged with 
anything, the detention deeply troubled him. It was a reminder of the 
bureau’s ability to curtail his freedom of speech. It was a reminder of 
the lack of transparent rationale or process. As in the CMU, it seemed 
to McGowan that the bureau was making up the rules and regulations as it 
went along.

Although details about the CMUs remain elusive, one notion about the 
CMUs is concrete for McGowan and the other inmates: The CMUs represent 
relentless surveillance and monitoring.

* * *

“I know this mosque is under surveillance,” said Shamshad Ahmad, 
president of Masjid As-Salam, where Aref was the imam. Ahmad, Downs, and 
I were sitting in the backroom of the mosque, in the classroom where 
Aref used to teach. Toy trucks and coloring books were strewn across the 
carpeted floor, and the walls were covered with children's drawings of 
their families. The door handle was still broken from the FBI raid years 
before.

When Ahmad had originally bought the building to convert it into a 
mosque, Aref volunteered to help him renovate it. He asked for no money 
but worked nightly on the mosque after he came home from work. Once the 
mosque was complete, Ahmad knew the only person who could lead the 
community was Aref, and chose him to be its imam. They were close 
friends. Ahmad called Aref his brother. After Aref’s conviction, Ahmad 
wrote a book defending the innocence and dignity of his good friend.

The Muslim community of Albany was deeply shell-shocked after Aref’s 
arrest. One third of the worshipers of Masjid As-Salam stopped going to 
the mosque to pray. Ahmad says that they were afraid of being too 
visible in his or any mosque.

“Later on, they considered this a punishment for being Muslim,” said 
Ahmad. “If you are a Muslim living in this society after 9/11, you 
expect your mosque will be under surveillance. You will be under 
surveillance. The government will try to entrap you. You cannot do 
anything about it.”

“It’s like Niemöller said,” interjected Downs. He leaned back in his 
chair, reciting from memory: “'First they came for the Socialists, and I 
did not speak out—because I was not a Socialist. Then they came for the 
Trade Unionists, and I did not speak out—because I was not a Trade 
Unionist. Then they came for the Jews, and I did not speak out—because I 
was not a Jew. Then they came for me—and there was no one left to speak 
for me.”

Ahmad nodded and laughed, although the words seemed hardly humorous. “We 
live our life knowing that we are watched and under surveillance,” Ahmad 
concluded.

* * *

Many of the inmates in the CMU and their families hope that Aref’s 
lawsuit will create a formal process for the facilities and lighten 
their heavy communication restrictions. With depositions for the trial 
complete, Aref and Jayyousi’s attorneys expect the case to go to trial 
or reach a settlement in early 2014. At this time, both the Federal 
Bureau of Prisons and the Department of Justice have declined to comment 
on the case. Even if the case does not succeed in changing the system, 
some of the inmates hope that the case will illuminate concealed 
information, as in McGowan’s case. But until the lawsuit is settled, the 
CMUs will remain open—and opaque.

-- 
Freedom Archives 522 Valencia Street San Francisco, CA 94110 415 
863.9977 www.freedomarchives.org
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