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<h1><b>Gitmo in the Heartland</b></h1><font size=3>Alia Malek | March 10,
2011<br><br>
<i>Research support for this article was provided by the Investigative
Fund at The Nation Institute.</i> <br>
<br>
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.<br><br>
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.<br><br>
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.”<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
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.)<br><br>
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.<br><br>
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.”<br><br>
(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.)<br><br>
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.<br><br>
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.”<br><br>
The media, however, paid scant attention to the CMUs, save for a few
articles, the most notable by Dan Eggen in the <i>Washington Post</i>,
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.<br><br>
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.”<br><br>
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.”<br><br>
* * *<br><br>
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 <i>The Nation</i>, “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.<br><br>
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.<br><br>
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.<br><br>
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.”<br><br>
Bound by confidentiality, Meeropol declined to name these inmates, but
<i>The Nation</i> 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.<br><br>
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.<br><br>
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.<br><br>
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
<i>Aref v. Holder</i>, 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.<br><br>
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.”<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
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.”<br><br>
* * *<br><br>
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.<br><br>
“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.<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
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!”<br><br>
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.<br><br>
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.<br><br>
* * *<br><br>
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 <i>The Nation</i>’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.”<br><br>
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.<br><br>
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.<br><br>
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.”<br><br>
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.<br><br>
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.<br><br>
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.<br><br>
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.”<br><br>
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.<br><br>
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.<br>
<hr>
<b>Source URL:</b>
<a href="http://www.thenation.com/article/159161/gitmo-heartland">
http://www.thenation.com/article/159161/gitmo-heartland</a><br><br>
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