Illustrations by Love Gerard
We sat together on her couch, her small, eight-year-old hands clutching a photo of her father, Yassin Aref. “My daddy only held me twice before I was five,” Dilnia told me. For the first five years of her life, she only knew him as the man on the other side of a plexiglass window in a communication management unit in an Indiana federal penitentiary.
Prisoners describe the communication management units, or CMUs, as “Little Guantánamos.” In 2006, the Bureau of Prisons created two of these units to isolate and segregate specific prisoners, the majority of them convicted of crimes related to terrorism. The bureau secretly opened these units without informing the public and without allowing anyone an opportunity to comment on their creation, as required by law. By September 2009, about 70 percent of the CMU prisoners were Muslim, more than 1,000 to 1,200 percent more than the federal prison average of Muslim inmates.
In the CMUs, prisoners are subject to much stricter rules than in general population. They are limited to two 15-minute telephone calls per week, both scheduled and monitored. Visits are rarely permitted, and when family members are allowed to visit, they are banned from physical contact, limited to phone conversations between a plexiglass window. This differs from the general population, where prisoners can spend time with their visitors in the same room. To further the isolation, some of the CMU prisoners are held in solitary confinement, with only one hour out of their cells each day.
After nearly three years of imprisonment in two CMUs, one in Indiana and one in Illinois, Aref and four other inmates decided to take action. On April 1, 2010, Aref, Daniel McGowan, Avon Twitty, Royal Jones, and Kifah Jayyousi filed a federal civil-rights lawsuit with the Center for Constitutional Rights against the Department of Justice and the Bureau of Prisons. The lawsuit, Aref et al. v. Holder, ignited the first attempt to expose the unconstitutionality of the CMUs. The prisoners argue in their complaint that the CMUs violate the First, Fifth, and Eighth amendments of the United States Constitution, as well as the Administrative Procedures Act. After nearly four years, and to the surprise of many involved, the case continues on and will go to trial or into settlement this year. The attorney for the prisoners is hopeful that the case will be settled with a summary judgment in March, vindicating their claims.
Since the original filing, the government has pushed hard to invalidate their case, successfully dismissing three of the original five plaintiffs. After the filing of the lawsuit in 2010, all five plaintiffs were transferred out of the CMUs. Because they were no longer in the CMUs, the specific complaints of three of the plaintiffs were invalidated. Yet Aref’s and Jayyousi’s complaints challenged more than just their own imprisonment in the CMU. They disputed the constitutionality of the CMUs as a government facility.
Although many advocates expected their case to be dismissed in its entirety, Judge Barbara Rothstein of the Western District of Washington allowed the case to continue. If a judge rules in favor of the prisoners later this year, the CMUs will be required to fit current prison standards, and some believe that they could ultimately be closed down.
As an eight-year old, Dilnia doesn’t understand any of the implications of her father’s lawsuit. Like the rest of her family, she just wants him home.
* * *
Although Aref is the one behind bars, his family also feels imprisoned and under constant surveillance. His wife, Zuhur Jalal, 42, doesn’t work and stays at home, raising their four kids and waiting for news about her husband’s case. She longs for familiar people and things, especially her homeland, Iraq. Following the Kurdish genocide in Iraq in the late 1980s, Aref and his family fled to Syria, and in 1999, the United Nations offered them asylum in the United States. They came to America looking for the freedom and basic human rights that they never had under Saddam Hussein’s regime.
They settled in Albany, New York, and when the city’s first mosque opened, in July 2000, Aref became its first imam. He viewed the members of his mosque as his family, regardless of how well he knew them or what their background was. His commitment to the mosque quickly became the beacon of Albany’s Muslim community.
Yet his accepting nature led to trouble when the FBI sent an undercover paid informant into the mosque. Instead of being skeptical, Aref took in the outsider without question. Within a few months, the informant had become close with Aref’s friends, including one of his closest friends, Mohammed Hossain. Hossain owned a failing pizza parlor, and the informant offered him a large loan, requesting Aref to witness the loan transaction, a common role for an imam. Aref did not hesitate. He counted the money and signed off on the agreement, as any notary public would have done. Neither he nor Hossain realized they were the objects of an FBI sting.
A few months later, the FBI arrested Aref and Hossain, raided their homes and the mosque, and interrogated their families. The informant had previously mentioned to Hossain that the money he had loaned him had been made from selling a surface-to-air missile, but Hossain had no involvement with the missile deal. And Aref says he had no knowledge of the deal at all. After a controversial trial, both men were convicted of conspiring to aid a terrorist group and money laundering. They were sentenced to 15 years in prison.
Judge Thomas J. McAvoy of the Northern District of New York requested that Aref be assigned to a local prison near his family because he had a newborn daughter. The Bureau of Prisons ignored this recommendation along with his status as “low security,” and sent him to the CMU in Terre Haute, Indiana. The bureau wrote a letter to the judge, explaining that it had denied the request because of unspecified “security reasons.”
When Aref was first arrested and made his one permitted phone call to his family to tell them that he was in jail, his 12-year-old daughter, Alaa, asked, “Why are you gone?” He told her that he didn’t know why, but he promised her that one day he would find out. While he was inside the CMU, his daughter’s question haunted him. He was depressed and anxious, and according to court documents, he became “obsessed about why he had been singled out for such restrictive confinement, and why he is perceived as dangerous.” He had fled his country because of Saddam Hussein, America’s main adversary during the Iraq War. Aref saw himself as an ally of the United States. He came to the United States with dreams of freedom and democracy. But soon after, in the post-9/11 counterterrorism haze, he was persecuted.
While inside the CMU, the obstructive nature of the facility restricted not only Aref but his family as well. Telephone calls, their main permitted form of communication, were so difficult to organize that it would often discourage his family from calling. All calls had to be scheduled one week in advance and could only be made between 8 AM and 3 PM during the week. Because the children were in school during this time, the family had to make the calls in the principal’s office of the school. Zuhur and her four children would gather around the speakerphone, trying to share the limited time. They never felt that it was enough.
During the first two years of Aref’s imprisonment, his family was only able to visit four times. They didn’t own a car, so for each trip, a close family friend would volunteer to drive them the nearly 1,000 miles to Indiana. Although the trip took 14 hours, the family was only allowed to have one four-hour visit per month. Steve Downs, a close friend of Aref’s, took the family on two of the trips. He tried to make it fun for the children and would let them pick out a motel, which they always chose for the best pool and restaurant. “It’s actually where they learned to swim,” he said. But these moments of fun were overshadowed by the distressing visits into the CMU. Several guards monitored their short visits, waiting for any violation of the seemingly arbitrary rules. During one visit, Downs pulled a pen out of his pocket to take notes, and immediately the guards stopped the visit and removed the family, stating that they had violated CMU code by using a “recording device.”
The visits were also emotionally draining. The children became upset with the sight of their father on the other side of the plexiglass. They would often cry. Aref and Zuhur also found these visits unbearably painful. They could see each other through the blurry window, but they could not touch or hug each other. And Aref could not hold Dilnia, a daughter he barely knew.
After four visits, Zuhur refused to bring the children to the CMUs anymore, believing they were too traumatic. Aref agreed, and for the last two years of his placement inside the CMUs, Aref did not see his family. Only after he was transferred to the general prison population was he able to see his children again.
In 2011, New York magazine profiled Aref’s case and his time spent in the CMUs. In one of the first email exchanges that he had with press, he told journalist Christopher Stewart, “I am not spending my time, time is spending me.”
* * *
On a cold Saturday morning last November, Downs and I visited Zuhur’s apartment in a working-class neighborhood in Albany. He hadn’t stopped by in a while, and Zuhur seemed surprised, yet pleased, to see him. Children's shoes and textbooks littered the floor. An aged pizza box and a bottle of flat soda sat on a wooden table against the wall. A bare lightbulb lit the small living room, illuminating scuffed lime-green walls and hanging prayer tapestries.
“Zuhur, your husband is taking on the government and, if he succeeds, could stop the CMUs,” said Downs.
She barely showed a reaction to his words, except for her brow, which folded in deep lines of sorrow. “Does that mean he’ll come home?” she asked.
Downs looked away from her. His voice became softer. “I don’t know, Zuhur. But he could help a lot of people.”
“How can he help other people if he can’t even help himself?” she replied bitterly, brushing away tears from the corners of her eyes.
While in prison, Aref refused to resign himself to losing his family or his sense of self. He published a memoir about his life in Kurdistan, his trial, and the CMUs. He reached out to journalists to share his story. And largely, he worked with his fellow inmates and attorneys to prepare their lawsuit.
The lawsuit challenges the CMUs on two fronts: first, how the prisoners were selected for the CMUs, a due-process challenge; and second, why they were selected, a First Amendment challenge. The Bureau of Prisons classified the CMUs as control units (the same category as supermax prisons) defined by heavy communication restrictions. Prison authorities must tell inmates why and when they are being transferred to control units. They must also give the prisoners a chance to protest their designation to such a unit in a hearing. Once in a control unit, the Bureau of Prisons is required to provide regular reviews of prisoners’ placement in the unit.
“The CMU doesn’t have any of this,” said Alexis Agathocleous, one of lead attorneys, from the Center for Constitutional Rights. “All of our clients and everyone that we know of in the CMU sort of get picked up and taken to the CMU, and then get a piece of paper that says, ‘You’ve been sent to a CMU, and here are the reasons.’ It’s a short, perfunctory paragraph, and often the information is inaccurate and unfounded. There is no disclosure of what the underlying allegations are.”
When inmates arrive at the CMUs, prison authorities are supposed to tell them that they can challenge their placement through an Administrative Remedy Process. But during the first few years of the CMUs, neither a review of placement nor a process took place. Many prisoners tried to uncover why they were there and how they could get transferred out, but no inmate or attorney figured it out.
“No one was transferred out of the CMU until we filed our lawsuit,” said Agathocleous. Only four years after the opening of the CMUs did the Bureau of Prisons begin to review cases for transferring out of the facility.
The lawsuit also contends that the protected religious and political speech of prisoners was used as a rationale to send them to the CMUs. “Perfectly legitimate, First Amendment–protected speech is the reason that the Bureau of Prisons is saying we need to put this person in the CMU,” said Agathocleous. Since the CMUs have 1,000 to 1,200 percent more Muslim inmates than the federal prison average, it is difficult to ignore the idea that the CMUs might have been created to segregate and restrict Muslim prisoners, whom the Bureau of Prisons saw as a greater security risk than non-Muslim prisoners. “Religious speech and religious identity have been used as a proxy for security risk,” said Agathocleous.
Aref’s lawsuit is not the first complaint against the creation of the CMUs. When the Bureau of Prisons first announced its plans to create CMUs with a new rule in the federal register in April 2006, the ACLU, the Legal Aid Society, and 16 other civil-liberty organizations came together to protest the development of the new institutions. The rule introduced heightened restrictions on the communication of inmates charged with, convicted of, or detained in connection with terrorism. Anyone the Bureau of Prisons deemed a risk to public and prison security could be transferred to these new units. The civil-liberty groups saw the suggested blanket ban on communication as unprecedented and unconstitutional, and infringing on First Amendment rights. They demanded that the rule be withdrawn.
The Bureau of Prisons ignored their demands. In September 2006, the inspector general of the Department of Justice reported that the Bureau of Prisons had moved forward on “several ongoing and proposed initiatives to improve the monitoring of communications for terrorist and other high-risk inmates.” Yet no one knew if the CMUs existed until the first prisoners were transferred to the CMU in Terre Haute, Indiana, in December 2006. They were transferred without any notice, hearing, or explanation. A few months later, the Bureau of Prisons created another CMU in Marion, Illinois, and more prisoners were transferred into this unit without notice or sufficient explanation.
Not only are the prisoners kept in the dark about the CMUs; the American public is as well. For the past 18 months, Human Rights Watch and the Human Rights Institute at Columbia University have been investigating human-rights abuses in the federal prosecutions of American Muslims since September 11, 2001. Much of their research revolves around the secretive CMUs. In August 2012, Human Rights Watch requested further information from the Bureau of Prisons, in accordance with the Freedom of Information Act. After months of waiting for the Bureau of Prisons to relinquish the information, Human Rights Watch and the Human Rights Institute filed a lawsuit in October 2013, to impel the government to provide the requested documents and data necessary for understanding the covert treatment of convicted citizens. They still have not received the requested information.
* * *
“I think that the Bureau of Prisons has been secretive in nature because, if this kind of information were to be widespread, there would be an outcry,” said Noor Elashi. Her father had been imprisoned in a CMU with Aref. But unlike Aref, who was transferred to a low-security prison, her father still remains in a CMU.
Elashi and I talked about her father in a small café in Manhattan as rain clouds haunted the November sky. She spoke slowly, choosing her words carefully as she recalled his stories from inside the CMU: how he lost visitation rights for putting his name on a yoga mat, how she rarely speaks with him because of his limited permitted phone calls, and how her relationship with her father has suffered because she cannot touch, hug, or smell him.
Elashi’s father, Ghassan, was charged under the ambiguous Material Support Statute for sending humanitarian aid, such as books and backpacks, to a Palestinian charity committee in Gaza. The prosecution claimed these committees were front organizations for Hamas, a US-designated terrorist organization, even though USAID and other international organizations had donated to the same committees. He was convicted and sentenced to 65 years in prison.
Elashi believes that what happened to her father and the other defendants in his case exemplify the prosecutorial bias against American Muslims after 9/11. His placement in a CMU furthers her belief that her father and many others like him were targeted, charged, and imprisoned for their religious beliefs. “Every aspect of today’s post-9/11 prosecutions echoes the political persecutions that existed during the civil-rights movement and during World War II against the Japanese Americans,” she said. “I think things will change, but it’s an uphill battle. The truth will slowly unpeel itself as we continue to investigate, document, and witness.”
* * *
Under media scrutiny in 2009, the Bureau of Prisons increased the percentage of non-Muslims in the CMUs. Many inmates now believe that the non-Muslim prisoners were placed in the CMUs to balance the population and make the units appear less religiously segregated and secret.
One of the original plaintiffs in Aref’s lawsuit, Daniel McGowan, was one of these “balancers.” In 2007, McGowan was sentenced to seven years in prison on multiple counts of conspiracy and arson related to the destruction of two lumberyards. Originally, he was sent to a low-security prison and spent the majority of his time writing political articles on prisoners’ rights and environmental issues. Within a year, he was sent to a CMU.
“They claim that it’s not an isolation unit, and it’s not a punishment unit, but the way they treat you? It’s like you’re a killer,” McGowan told me. McGowan’s been out of prison for almost a year. Living in Brooklyn with his wife, he is waiting out his period of supervised release, which will be done in 2016.
He met me during his lunch break a couple weeks after he gave his witness deposition for the lawsuit against the CMUs. “It’s a horrible place. You’re under constant surveillance, and you’re in a tiny area. It feels like you’re being sat on,” he said. The only place he didn’t feel the eyes of the authorities was in the shower. Other than that, he always felt that he was being monitored: when he was alone in his cell, on the phone, in the yard, eating lunch, or even getting his teeth cleaned. There were extra eyes on the inmates of the CMUs; there was a sense of surveillance that he had never experienced in the standard prison system.
The 18th-century social theorist Jeremy Bentham envisioned a new model for incarceration. Prisons of the future would be shaped like a cylinder, with cells lining the curved walls and stacked on top of each other. In the center of the prison would stand a single watchtower, with windows that would allow prison guards to look out without prisoners looking in.
Bentham created this prison design to maximize the visibility of prisoners, while isolating them in individual cells, so they could never be sure when they were being watched and when they weren’t. The design, which he called the Panopticon, allowed a minimal number of prison wardens to watch over a large number of prisoners.
French philosopher and theorist Michel Foucault took the metaphor of the Panopticon one step further. In Discipline and Punishment, he wrote that the major effect of the Panopticon was “to induce in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power.” In other words, under constant surveillance in the Panopticon, the inmates would internalize the monitoring and would begin to monitor themselves. Indeed, it was of little importance whether the prisoners were actually being watched—what mattered was that they thought they were.
McGowan hesitated when I asked him how the CMU’s surveillance had changed him. “You start surveilling yourself. You police your own behavior because you are aware that you are being watched all the time.”
Aside from the constant surveillance, McGowan rarely received any information on why he had been sent there and how he could appeal his transfer. A few days after the Bureau of Prisons had transferred him to the CMU without warning or reason, they gave him a one-page memo that stated in a short five-sentence paragraph why he had been transferred. Yet the memo only listed a summary of his conviction, with some of the details incorrect. Why he had been transferred to the CMU was still a mystery to him. “Even if you feel like there’s a reason to open up one of these units, you have to do it legally. You can’t just open it up and jack people in there.”
Before the judge dismissed McGowan as a plaintiff, the courts impelled the Bureau of Prisons to release new information on why he had been sent to a CMU. In a previously unseen memo, the chief of the Bureau of Prison’s Counter Terrorism Unit, Leslie Smith, said that McGowan had been sent to the CMU due to some of his outspoken political views. In April 2013, McGowan wrote about the new document on the Huffington Post:
It is becoming increasingly clear that the BOP is using these units to silence people, and to crack down on unpopular political speech. 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 CCR's help, I hope to prove that in court and show what is happening at the CMUs. This needs to be dragged into the sunlight.
Less than three days after McGowan published his article on the Huffington Post, the Bureau of Prisons remanded him into custody for “publishing under his own byline,” a violation of his probation. Although McGowan was released after one evening and was not charged with anything, the detention deeply troubled him. It was a reminder of the bureau’s ability to curtail his freedom of speech. It was a reminder of the lack of transparent rationale or process. As in the CMU, it seemed to McGowan that the bureau was making up the rules and regulations as it went along.
Although details about the CMUs remain elusive, one notion about the CMUs is concrete for McGowan and the other inmates: The CMUs represent relentless surveillance and monitoring.
* * *
“I know this mosque is under surveillance,” said Shamshad Ahmad, president of Masjid As-Salam, where Aref was the imam. Ahmad, Downs, and I were sitting in the backroom of the mosque, in the classroom where Aref used to teach. Toy trucks and coloring books were strewn across the carpeted floor, and the walls were covered with children's drawings of their families. The door handle was still broken from the FBI raid years before.
When Ahmad had originally bought the building to convert it into a mosque, Aref volunteered to help him renovate it. He asked for no money but worked nightly on the mosque after he came home from work. Once the mosque was complete, Ahmad knew the only person who could lead the community was Aref, and chose him to be its imam. They were close friends. Ahmad called Aref his brother. After Aref’s conviction, Ahmad wrote a book defending the innocence and dignity of his good friend.
The Muslim community of Albany was deeply shell-shocked after Aref’s arrest. One third of the worshipers of Masjid As-Salam stopped going to the mosque to pray. Ahmad says that they were afraid of being too visible in his or any mosque.
“Later on, they considered this a punishment for being Muslim,” said Ahmad. “If you are a Muslim living in this society after 9/11, you expect your mosque will be under surveillance. You will be under surveillance. The government will try to entrap you. You cannot do anything about it.”
“It’s like Niemöller said,” interjected Downs. He leaned back in his chair, reciting from memory: “'First they came for the Socialists, and I did not speak out—because I was not a Socialist. Then they came for the Trade Unionists, and I did not speak out—because I was not a Trade Unionist. Then they came for the Jews, and I did not speak out—because I was not a Jew. Then they came for me—and there was no one left to speak for me.”
Ahmad nodded and laughed, although the words seemed hardly humorous. “We live our life knowing that we are watched and under surveillance,” Ahmad concluded.
* * *
Many of the inmates in the CMU and their families hope that Aref’s lawsuit will create a formal process for the facilities and lighten their heavy communication restrictions. With depositions for the trial complete, Aref and Jayyousi’s attorneys expect the case to go to trial or reach a settlement in early 2014. At this time, both the Federal Bureau of Prisons and the Department of Justice have declined to comment on the case. Even if the case does not succeed in changing the system, some of the inmates hope that the case will illuminate concealed information, as in McGowan’s case. But until the lawsuit is settled, the CMUs will remain open—and opaque.
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