Secret Experimental Prisons Subject Inmates to Drastic Isolation
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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 22 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 16 men in the CMU, 14 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 15-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.”