March 30, 2011, New York – Today, prisoners in two experimental federal prison units called “Communications Management Units” (CMUs) won the right to have their day in court and challenge the violation of their fundamental constitutional rights, including the right to due process. The units are being used overwhelmingly to hold Muslim prisoners and prisoners with unpopular political beliefs. The Center for Constitutional Rights (CCR) filed the case on their behalf exactly one year ago on March 30, 2010.
Said CCR Attorney Alexis Agathocleous, “Today, Judge Urbina has agreed that our clients have raised serious constitutional questions about the CMUs, and has vindicated their right to a day in court to pursue their claims. Our clients were designated to the CMUs without due process or oversight, even though they have no significant history of disciplinary infractions. This led to pattern of retaliatory designations to the CMUs. In a significant victory for our clients, the court will now scrutinize the BOP’s actions.”
Said plaintiff Hedaya Jayyousi, “I am deeply gratified that the court will hear our claims. My husband has been held under these conditions for years without a proper explanation. My children and I hope that we will now be given some answers.”
Transfers to the CMU are not explained, nor are prisoners told how release into less restrictive confinement may be earned as there is no meaningful review process. The court agreed the plaintiffs had alleged conditions in the CMUs that were sufficiently restrictive to support their claim that they have a “liberty interest” in having the right to procedural due process.
The court wrote, “In light of the plaintiffs factual allegations supporting their contention that reviews provided by the defendants are ‘illusory’ and meaningless, the court determines that they have adequately alleged there is a high risk that the procedures used by the defendants have resulted in erroneous deprivations of their liberty interests.”
Lawyers say that because these transfers are not based on facts or discipline for infractions, a pattern of religious and political discrimination and retaliation for prisoners’ lawful advocacy has emerged.
The court allowed the claims of violation of due process as well as of retaliation to go forward. The court found that plaintiff Royal Jones made serious allegations that cannot be dismissed that he was put into the CMU in retaliation for protected speech, and speaking out and filing complaints about improper prison conditions. Similarly, the court found that allegations that plaintiff Daniel McGowan was twice designated to the CMU in retaliation for social justice advocacy and for seeking legal information from his attorneys could not be dismissed.
The court further refused to allow the BOP to evade review by transferring the Center for Constitutional Rights’ clients from the CMU. The court dismissed several of the claims raised by the lawsuit, including claims of equal protection, substantive due process, and freedom of association.
CCR filed Aref v. Holder in the D.C. District Court on behalf of current and former prisoners of the units in Terre Haute, IN and Marion, IL; two other plaintiffs are the spouses of those prisoners. The CMUs were secretly opened under the Bush administration in 2006 and 2007 respectively and were designed to monitor and control the communications of certain prisoners and to isolate them from other prisoners and the outside world. The five plaintiffs in Aref were designated to the two CMUs despite having relatively or totally clean disciplinary histories, and none of the plaintiffs have received any communications-related disciplinary infractions in the last decade. Between 65 and 72 percent of CMU prisoners are Muslim men.
In addition to heavily restricted telephone and visitation access, CMU prisoners are categorically denied any physical contact with family members and are forbidden from hugging, touching or embracing their children or spouses during visits.
The law firm Weil Gotshal & Manges LLP and attorney Kenneth A. Kreuscher are co-counsel in the case.