Gitmo in the Heartland
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 night—or 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 BOP—in 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 discovery—and 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.”
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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 records—many of which were clean—or 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 Foundation—a now-defunct US-based Islamic charity that sent funds to social programs administered by Hamas, a US-designated terrorist organization—and 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.