The Center for Constitutional Rights (CCR), which has brought a lawsuit on behalf of prisoners placed in restrictive prison units known as Communications Management Units (CMUs), has revealed documentation that shows for the first time how people are designated for placement in CMUs, what they are told by the Bureau of Prisons (BOP) when placed in a CMU, and how they’re ongoing imprisonment in the CMU is reviewed by BOP.
CMUs can be found in prisons in Terre Haute, Indiana, and Marion, Illinois. They opened in 2006 and 2008, respectively. The stated reason for opening them was to control and isolate prisoners from being able to communicate to the outside world.
The lawsuit does not challenge that practice if it is truly necessary, but what it does challenge is the lack of process for prisoners to contest their placement in CMUs and how broad discretion has made it possible for BOP to disproportionately target Muslims as well as others for their political speech.
The worst part of being under CMU restrictions is that prisoners cannot have contact with loved ones. They cannot hold hands with their wives. They cannot hug. “The lack of physical contact with his children for the 47 months” that Aref has been in CMUs has been, to him, “a kind of torture.”
For the first three years that CMUs were in existence, there was no process setup for reviewing CMU prisoners so they could be transferred out. Senior CCR attorney, Alexis Agathocleous, said there is “considerable confusion about how those reviews work and when they should occur.”
Prison officials are supposed to be reviewing whether the “original reasons for CMU designation still exist,” but, as Agathocleous explained, “If prison officials don’t actually know fully the reasons why a prisoner was sent to a CMU to begin with, they can’t possibly determine whether those original reasons still exist.”
According to the CCR’s latest court submission, a Counter-Terrorism Unit (CTU) within the BOP makes the initial recommendation—the “Notice for Transfer—to the CMU. The notice does not “actually reflect the reason(s) the prisoner was in fact approved for CMU designation.” A North Central Regional Director “makes the ultimate decision” and that may or may not be similar to CTU’s recommendation. This director can base the decision to transfer a prisoner to a CMU on any information, regardless of whether the information is in the “designation packet.” This decision-maker is not required to document what goes into this “ultimate decision,” even if it is different from CTU’s recommendation.
Agathocleous told Firedoglake that “prisoners sent to the CMU were told that the only way they could appeal their placement was through the Administrative Prisoner Remedy Program.” Several CMU prisoners did and what they received in response was “a repetition of the same inaccurate or incomplete paragraph” that they had initially been provided to explain why they were in the CMU.
For example, Daniel McGowan, a plaintiff in the lawsuit and an environmental activist who was charged with committing a series of arsons and other property crimes against numerous targets that they deemed to be agents of environmental destruction and animal exploitation, was informed that he was put in a CMU for “destruction of an energy facility.” He was told the BOP thought he was a “member and leader in both the Earth Liberation Front (ELF) and Animal Liberation Front (ALF)” and that he “taught others how to commit arson.” McGowan maintained that those allegations were not “supported by facts.”
The response he received restated allegations and did not explain why they were true. He also was not able to go through a better process to argue the allegations weren’t true. And, furthermore, he was not informed by the BOP that the Counter-Terrorism Unit had relied on his communications from the Federal Correctional Institution in Sandstone, Minnesota, on environmental issues to justify putting him in a CMU.
According to Agathocleous, no CMU prisoner “has ever successfully challenged his CMU designation” through the administrative remedy process. Prisoners have been told that they can get out in 18 months if they cause no conflicts. However, the CCR learned through documents and depositions of officials that there was no policy. No time limit on how long a person could be in a CMU existed in policy.
Another plaintiff in the lawsuit, Yassin Aref, spent 18 months in his first CMU. He did not do anything wrong, but after 18 months, he was transferred to another CMU. The 18-month clock restarted. He has spent four years in a CMU without committing any misconduct.
Criteria for placement is unclear. CCR has discovered that different offices responsible for CMU designation use “different criteria to make their decisions about who should be sent to CMUs.” They do not even know which criteria should apply, which gives officials very broad discretion.
“The system is broken at every level,” Agathocleous declared. And it impacts Muslim prisoners the worst.
One hundred and one of 178 total CMU designations have been Muslim prisoners, according to data CCR was allowed to disclose for the first time. Six percent of the prison population is Muslim. As the filing states, “This marks a vast overrepresentation which cannot be explained away by virtue of the CMU’s focus on terrorism.”
“Of the first 55 prisoners designated to the CMU, 45 were sent there because of their connection to terrorism, but the other ten were designated due to involvement in prohibited activities related to communication; of that ten, eight self-reported as Muslim,” it explains.
Prisoners with strong religious or political views are targeted as well, but prisoners are often not informed that consideration of religious or political beliefs factored into their CMU designation.
Marion CMU Unit Manager Paul Kelly apparently testified that a “prisoner could mitigate the reasons for his initial placement by no longer believing in the ideology that motivated the activities that led to his CMU placement.” Also, Henry Rivas, the Intelligence Research Specialist at the Marion CMU, “thought that an individual sent to the CMU for environmental extremism who continued to read extremist environmental publications qualified for continued CMU placement.”
The CCR’s recent filing further indicates, “North Central Regional Staff opined that prisoner L required CMU designation due to his offense conduct and ‘continued militant beliefs.’ The staff member indicated that prisoner L would have to ‘change the militant portion of those beliefs’ to be eligible for release from the CMU.”
It is near impossible to get out of the CMU. Kifah Jayyousi, one of the plaintiffs in the lawsuit, was in a CMU for 58 months or 232 weeks. McGowan was in a CMU for 22 months or 98 weeks. Avon Twitty, another plaintiff, was in the CMU for 39 months or 156 weeks. Ninety-five prisoners have spent over 18 months in CMUs. Twenty-five prisoners have spent over 36 months or 144 weeks.
Agathocleous argued, “CMU prisoners are entitled to but have been deprived of meaningful notice of the reason of the CMU designation, reasonable and comprehensible designation standards, meaningful opportunity to contest their placement in the CMU and a meaningful periodic review process so they can figure out how to earn their way out.”
“Extremely draconian restrictions” have a “very serious material impact on people’s lives” are not accompanied with a meaningful process that gives prisoners the right to challenge these severe conditions. It deprives them of their right to due process and their First Amendment right to have contact with family (only two 15-minute phone calls are allowed per week).
The broad ability to make these decisions absent any accountability is what CCR hopes to bring to an end.