Creative Commons-licensed photo of Daniel McGowan in 2006 (via Wikimedia)

An environmental activist, who was prosecuted by the Justice Department for engaging in acts the department considers to be terrorism, has found out through a lawsuit of which he is a plaintiff that he was transferred to a prison in Marion, Illinois, and held in isolation for his political speech.

Daniel McGowan, who had a role in arsons at two lumber companies in Oregon in 2001 that were believed to have been committed by the Earth Liberation Front (ELF), was sentenced to seven years in prison in June 2007. The government sought a “terrorism enhancement” when prosecuting him. (His case was profiled in the Oscar-nominated documentary, If a Tree Falls.)

He was imprisoned for a year at FCI Sandstone in Minnesota. In May 2008, the government had him transferred from this prison, with much lower security, to a Communications Management Unit (CMU) (or what is known to some as a “terrorism unit”) in Marion. In the CMU, he was barred from physical contact with his wife and family members. His phone access was severely restricted with only one to two fifteen minute calls allowed per week. He was not allowed to have contact with prisoners in the general population.

McGowan was transferred out of the CMU in 2010. His wife was able to visit and see him in the general visitation room. However, on February 24, 2011, McGowan was transferred to a CMU in Terre Haute, Indiana. In both transfers to the CMU, virtually no justification was given for why he needed to be moved.

Now, McGowan is in a halfway house finishing out his sentence. He writes in an article at Huffington Post that when he arrived at Marion he was “confused” about where he was and why:

…I was given a single sheet of paper called a “Notice of Transfer.”  It included a few sentences about my conviction, much of which was incorrect, by way of explanation for my CMU designation.  I was provided no other information about why the BOP believed I needed to be sent to this isolation unit.  Frustrated, I filed administrative grievances to try to get the information corrected, and find out how this decision had been made.  When that did not work, I filed a request for documents under the Freedom of Information Act.  I got nowhere.  The BOP would not fix the information, and wouldn’t explain why they thought I belonged in a CMU.

So I decided to contact lawyers at the Center for Constitutional Rights, having known their history of strong advocacy on these issues. We brought a federal lawsuit on behalf of myself and other CMU prisoners to challenge policies, practices and our designation to the CMUs. The lawsuit, Aref v. Holder, was filed in April 2010, and challenges the constitutionality of various polices and practices at the CMUs, including the lack of meaningful process associated with designation to the units, and the lack of any meaningful way to “step down” from the units.  The lawsuit contends that this lack of transparency and process has allowed people to be sent to the CMUs based on, for example, their protected speech…

By way of discovery in the ongoing lawsuit, McGowan uncovered a memo by Leslie Smith, the chief of the Bureau of Prisons’ “Counter Terrorism Unit.” It catalogs what he was heard saying and shows speech, which the Bureau of Prisons did not approve, is why he was targeted.

…While incarcerated and through social correspondence and articles written for radical publications, inmate McGowan has attempted to unite the radical environmental and animal liberation movements. [REDACTED]

In a letter published on the Portland Independent Media, inmate McGowan described the cooperation with government authorities by his co-defendants and complained about support provided to these cooperating defendants, from the environmental community, for persons who he claimed were responsible for the, “betrayal of (their) friends and allies.”…

The Bureau of Prisons paid close attention to statements he made about “errors” the movement had committed in the past when engaged in direct action:

…On direct action, inmate McGowan stated such tactics may not be the best option, but often have the most desired effect and detailed his support for such actions by members of the community. Regarding direct action, inmate McGowan stated: “We need to have serious conversations about whether militancy is truly effective in all situations. Certainly, direct action is a wonderful tool, but from my experience, it may not be the most effective one at all times or in all situations.” “In some instances, direct action is the most effective tactic.” “Actions that are understood by the public and seen as logical can have a positive impact on pre-existing campaigns and struggles.” “Despite the fact that my particular case is over, it’s imperative that we discuss tactics and strategies in a way that people can actually hear and listen to what each other is saying.”…

It is all benign and none of it should justify further penalty in prison.

McGowan notes in his Huffington Post article that in prison he was “eager to stay involved in the social justice movements I care about.”  He “continued to write political pieces, some of which were published on Huffington Post‘s website.”No one in the BOP ever told” him he needed to stop his writing nor was he informed that he was “violating any rules.”  He was put into conditions that amount to solitary confinement without any warning.

If one looks at the memo, one can see details of “crimes” McGowan committed. This is all information that should have been litigated in court during his sentencing. Outside of judicial review, the Bureau of Prisons imposed additional restrictions on McGowan and used what he he had pled guilty to committing in order to justify those restrictions.

In another memo marked “sensitive but unclassified” from Smith, one can see why McGowan was re-designated for a CMU in 2011.

…During his six month step-down from the CMU program, on January 30, 2011, inmate McGowan directed his wife, Jenny Synan, to circumvent inmate communication monitoring by having documents mailed to the institution under the guise of attorney-client privileged communication (special/legal mail). Specifically, during a telephone conversation, inmate McGowan and his wife discussed the unauthorized release of Counter Terrorism Unit reports to the public through the website [PublicIntelligence.net]. These reports, which contained the label, “Unclassified // For Official Use Only / Law Enforcement Sensitive,” were obtained without the approval of the Bureau of Prisons, contained law enforcement information relating to intelligence gathering and investigations, and were released to the public without authorization. [REDACTED]…

In other words, McGowan talked about leaked reports and he should not have.

Smith also reports McGowan had “specifically and directly instructed his wife to facilitate the attempted introduction of these documents into the institution by circumventing monitoring through the use of legal mail from an identified attorney.” This was because McGowan wanted to “evaluate the original reports for himself.”

This same memo also claims McGowan’s communication—speech—demonstrates he still supports “anarchist and radical environmental terrorist groups” and desires to “remain in an influential and leadership position among these groups.” That is, they are “terrorist groups” because they have been designated as such by the US government and not necessarily because the militant direct action or property damage they engage in actually amounts to “terrorism,” as no persons are typically ever physically harmed or killed. The actions are acts of vandalism punishable in a court of law, but whether they are terrorist acts is exceedingly questionable.

As McGowan declares, “The federal government may not agree with or like what I have to say about the environmental movement, or other social justice issues. I do not particularly care as the role of an activist is not to tailor one’s views to those in power.” Additionally,  ”Aref v. Holder contends, everything I have written is core political speech that is protected by the First Amendment. It may be true that courts have held that a prisoner’s freedom of speech is more restricted than that of other members of the public.  But no court has ever said that means that a prisoner is not free to express political views and beliefs that pose no danger to prison security and do not involve criminal acts.”

Both of the memos fail to report specific criminal or violent acts that McGowan might have been advocating be committed. Nor do they draw a link between his writings and any acts committed while in prison.

CMUs are used by the Bureau of Prisons to disproportionately target Muslim inmates, particularly those in prison on non-violent material support for terrorism charges. In fact, the Center for Constitutional Rights (CCR) is arguing his case along with Yassin Aref, who was transferred to a CMU after he told fellow prisoners during group prayer they were sent to a “psychologically abusive unit because they were Muslim” and should “‘stand firm, stand strong, to stand steadfast’ even though the CMU is ‘a hard place.’” There was no warning or finding he had violated prison rules with these remarks yet Smith recommended he be put in isolation for his speech.

It is estimated, according to CCR, that 72% of the population at the Marion CMU is Muslim, 1,200% “higher than the national average of Muslim prisoners in federal prison facilities.”  The Terre Haute CMU population is “approximately two-thirds
Muslim,” an overrepresentation of 1,000%.” These statistics include African Americans who have converted to Islam and prisoners who are of Middle Eastern descent. They show the war on Muslims is not limited to racial profiling, warrantless surveillance and preemptive prosecutions but also include a sinister form of punishment, where they are isolated for indefinite periods for engaging in freedom of speech that condemns the prison or other US government agencies and policies.

As McGowan concludes from experience, “It is becoming increasingly clear that the [Bureau of Prisons] is using these units to silence people, and to crack down on unpopular political speech. They have become units where the [Bureau of Prisons] 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.”