Daniel McGowan was convicted in 2006 for his participation in two Earth Liberation Front-initiated arson attacks protesting genetic engineering and the logging of old-growth forests. He was sentenced to seven years in prison under a terrorism “sentencing enhancement,” which increased the length of his sentence beyond federal sentencing guidelines for an “unenhanced” conviction. Little did McGowan know at the time that his “sentencing enhancement” would make him among the first to be subjected to a little-discussed aspect of the “War on Terror.”
The same year, the George W. Bush administration and — in particular — the Federal Bureau of Prisons came under criticism for not doing enough to monitor prisoner communication. In October 2006, the Justice Department’s inspector general issued a report indicating that the three terrorists imprisoned for their involvement in the 1993 bombing of the World Trade Center sent nearly 100 letters to alleged overseas terrorists while under maximum security.
Earlier in the year, the Federal Register included proposed BOP rules that “limited communication for terrorist inmates,” which permitted the bureau to impose limits and restrictions on an inmate’s ability to communicate with the outside world or to his or her fellow inmates if the bureau felt that the inmate presented a threat to national security. This would differ from the methodology that was already in place to “silence” a prisoner — special administrative measures (SAMs). Unlike a SAM, authority to isolate a prisoner would not require an explicit order from the U.S. Attorney General; the prisons bureau would be authorized to segregate prisoners under its own direction.
The public was given until June 2, 2006 to comment on the rule changes, as mandated by law. Under criticism that the rules were potentially unconstitutional because they gave the BOP broad discretion to apply the rule to any inmate, including non-terrorists, the BOP seemed to abandon the rule change.
However, on Dec. 11, 2006, a Communications Management Unit (CMU) — a specialized prison ward in which all inmate communication, both internal and external, is heavily limited — appeared without public notification and without a clear understanding of who authorized the activation of the program at the Terre Haute Federal Correctional Complex in Indiana.
Controlling political speech
In 2008, the Bush administration set up the second CMU at the former Supermax prison at the U.S. Penitentiary at Marion, Ill. In May of that year, McGowan was told he was heading to the newly-built CMU, a maximum security experiment nicknamed “Little Guantanamo” inside the now-medium security prison. What McGowan and many others have learned is that the CMUs reflect a federal prison system that is growing increasingly political and unbalanced.
“I was a low security prisoner with a spotless disciplinary record, and my sentencing judge recommended that I be held at a prison close to home,” McGowan wrote in a 2013 Huffington Post article, which ultimately earned him a return to prison. “Since August 2008, when I first arrived at the CMU, I have been trying to get answers as to why I was singled out to be sent there. Only now — three years after I filed a federal lawsuit to get to the truth — have I learned why the Federal Bureau of Prisons (BOP) sent me to the CMU: they simply did not like what I had to say in my published writing and personal letters.
“In short, based on its disagreement with my political views, the government sent me to a prison unit from which it would be harder for me to be heard, serving as a punishment for my beliefs.”
Typically in a BOP facility, prisoners are afforded 300 minutes of telephone calls per month, nearly unlimited non-sexual physical contact with visitors during their weekly or bi-weekly visitation period and unrestricted mail access.
In a CMU, however, visitations are limited to two hours, twice a month, with visitors kept in a separate room from the inmate and communications conducted through a glass window and a telephone system. Prisoners are banned from physical contact. Due to the fact that they are being recorded, all CMU contact must be in English unless the prisoner gets permission at least 10 days in advance. It also must be with an immediate family member only. All mail — except legal or court correspondence — to or from the CMU is opened and read, copied, and evaluated before being released.
As for telephone calls, CMU prisoners are limited to a single 15-minute call per week, which must be in English and can be limited to three minutes at the warden’s discretion. All recorded communications are monitored remotely by a counterterrorism team in West Virginia.
On the Constitution and prisons
Besides communication limitations, a CMU presents other checks on a prisoner’s freedom of association. In 2010, inmates Enaam Arnaout and John Walker filed a lawsuit against the BOP alleging that the bureau violated prisoners’ rights to free religion by only allowing Muslim prisoners to pray once a week and once a day during Ramadan. In 2011, it was estimated that 70 percent of people held in CMUs were Muslim, though the Muslim population for the whole of the federal prison system, at the time, was 6 percent.
In the same year, the Center for Constitutional Rights filed a lawsuit against the BOP, “challenging policies and conditions at two experimental prison units that are being operated in Terre Haute, Indiana, and Marion, Illinois, as well as the circumstances under which they were established.”
The center argued that the BOP’s lack of procedural protections allowed for discriminatory and retaliatory designations to be applied to prisoners based on perceived religious and political beliefs and without a valid reason for such an increase in scrutiny.
Many have alleged that because the prisoners cannot address these accusations directly and because these prisoners were found to not require housing in a maximum security prison, the CMUs represent an overreach.
«These units are an unprecedented attack on the constitutional rights of prisoners and those in the outside world who wish to communicate with them,» David Fathi, director of the ACLU National Prison Project, said at the time. «There is no justification for forcing prisoners who have never been convicted of any crime of terrorism to serve their sentences in severely isolated housing units, especially since prison officials are already able to address any legitimate security concerns by monitoring the mail, telephone calls and visits of people in their custody.»
A failed experiment
With the federal government only confirming the existence of the CMUs and opening the CMU proposal to public comment three years after the first CMU was launched, with different agencies having different criteria for designating prisoners to the CMUs, and with CMU prisoners being given incomplete, inaccurate and sometimes incorrect reasons for their designations, the biggest criticism of the CMU program has been the government’s insistence on secrecy. Only after the filing of the Center for Constitutional Rights lawsuit, Aref v. Holder, did the BOP make changes to the program, such as ending indefinite detentions and transferring some inmates out of the program.
However, the program still exists, although without its “terrorist” distinction. Its continued existence begs an important question: does the federal government have the right to punish speech it disagrees with?
“It is becoming increasingly clear that the BOP is using these units to silence people, and to crack down on unpopular political speech,” continued McGowan. “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 [the Center for Constitutional Rights’] help, I hope to prove that in court and show what is happening at the CMUs. This needs to be dragged into the sunlight.”