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lord patch
04-12-2007, 05:15 PM
Program in apparent violation of federal law
Category: News and Politics

Program in apparent violation of federal law

Documents show new secretive US prison program isolating Muslim,
Middle Eastern prisoners
Jennifer Van Bergen
Friday February 16, 2007
http://www.rawstory.com//news/2007/Documents_show_new_secretive_new_US_0216.html

The US Department of Justice has implemented a secretive new prison
program segregating "high-security-risk" Muslim and Middle Eastern
prisoners and tightly restricting their communications with the
outside world in apparent violation of federal law, according to
documents obtained by RAW STORY.

Quietly implemented in December, the special "Communications
Management Unit" (CMU) at a federal penitentiary in Indiana targeting
Muslim and Middle-Eastern inmates was not implemented through the
process required by federal law, which stipulates the public be
notified of any new changes to prison programs and be given the
opportunity to voice objections. Instead, the program appears to have
been ordered and implemented by a senior official at the Department of
Justice.

In April of last year, the US Federal Bureau of Prisons -- part of the
Department of Justice -- proposed a set of strict new regulations and,
as required, there was a period of public comment. Human rights and
civil liberties groups voiced strong concerns about the
constitutionality of the proposed program.

The program originally proposed was said to be applicable only to
terrorists and terrorist-related criminals. The American Civil
Liberties Union (ACLU), however, along with a coalition of other civil
liberties groups, objected to the language of the regulation as too
broad, and potentially applicable to non-terrorists and even to those
not convicted of a crime but merely being held as "witnesses,
detainees, or otherwise."

After pushback from civil rights groups, the program appeared to have
been dropped by the Prisons Bureau, with coalition groups believing
that they had made their case regarding Constitutional rights. Yet
documents obtained by RAW STORY show that a similar program, the CMU,
was surreptitiously implemented in December 2006.

Executive Director Howard Kieffer of Federal Defense Associates, a
legal group based in California that assists inmates and lawyers of
inmates on post-conviction defense matters, says the order for the
program must have been issued by one of the offices which oversee the
US Federal Bureau of Prisons.

Only three government offices have the authority to issue such changes
in federal prison operations, and they all fall within the senior
management of the Justice Department: the office of Harley Lappin, the
Director of Prisons Bureau, the Office of Legal Counsel, or directly
from the office of the US Attorney General, Alberto Gonzales.

The Public Affairs offices of the Department of Justice and the
Attorney General referred all requests for comment to the Prisons
Bureau. As of press time, Felice Ponce, an officer in the Prisons
Bureau Office of Information, was unable to answer requests to confirm
the existence of the program, provide details about it, or comment on
it at all.

Those who had such information at the Bureau were all "out of pocket,"
Ponce said.

Documents obtained by RAW STORY show that the CMU program, instituted
Dec. 11, 2006 -- shortly after the mid-term elections in which
Democrats won both chambers of Congress -- is being implemented at
Terre Haute Federal Correctional Institution in Indiana.

Under the CMU program, telephone communications must be conducted
using monitored phone lines, be live-monitored by staff, are subject
to recording, and must be in English only. All letters must be
reviewed by staff prior to delivery or sending. Visits must be
non-contact only, live-monitored, and subject to recording in English.

Keiffer asserts that the program, which purports to house high-risk
inmates for the purpose of better monitoring their communications, "is
not related to inmate security" at all.

The program "doesn't affect the highest security inmates who are still
being kept in other high security prisons, where some may be allowed
greater freedom in communications than the CMU inmates," he says. "It
affects a class of inmates who would not garner as much sympathy as
others and who have diminished support in the US."

"It is just like the detentions after 9/11," he adds. "It's profiling."

Calls placed to the FBI were not returned.

The CMU is in apparent violation of the Federal Administrative
Procedures Act, which explicitly requires that all prison regulations
be promulgated under that law. Courts have overturned programs that
have violated this law "half a dozen times over the past ten years,"
Keiffer says.

One of the documents obtained by RAW STORY, titled "Institution
Supplement," was issued by the Terre Haute facility and given to
prisoners transferred into this new program. The document states that
"all contact" between the inmates and "persons in the community" may
only occur "according to national policy, with necessary adjustments
indicated herein," indicating that the new program's contact rules are
the same as normal prison rules except where "adjusted" in the
Supplement.

Attorney Peter Goldberger, a Philadelphia-area specialist in criminal
appeals and former law professor who has 30 years experience dealing
with federal prisons and inmates, told RAW STORY that the Terre Haute
Institution Supplement is officially a supplement to the Prison
Bureau's national Program Statement on Inmate Discipline and Special
Housing Units, published in the Code of Federal Regulations and last
amended in 2003.

Keiffer explains that an Institution Supplement cannot exist by itself
without specific authorization. The CMU Institution Supplement states
that it is "according to national policy." But Keiffer notes that the
national Program Statement does not in fact authorize the CMU program.
In order for the program to be properly authorized, it would have to
address the particular program parameters, locations, specify the
inmates to whom it applied, and would have to take into account the
specific and unique features of that program. The already existing
national Program Statement does not address the CMU program and thus
does not authorize it.

Goldberger notes that "what's different" about the program, "is
limitation of contact with friends, family and outsiders -- instead of
300 minutes of telephone time per month, it's one 15 minute call per
week, which can be reduced in the Warden's discretion to a mere three
minutes once a month."

"Instead of all-day visiting every week or every other week, it's only
two hours at a time, twice a month, with no physical contact,
presumably sitting on opposite sides of a plexiglas window,"
Goldberger continued.

"And all letters, except to lawyers, courts, and Congress, will be
read and copied, with weeks of delay, instead of cursorily inspected
and sent right on," he adds. "It's a totally new and different program."

Director of the Center for National Security Studies in Washington,
D.C. Kate Martin told RAW STORY that restrictions of inmate
communications must be narrowly tailored to serve a specific
identifiable need of the government. Martin said that there was a
clear rationale for restricting communications of those who had
previously handled classified information -- for example a former CIA
agent who had passed secrets to a foreign government. But with
individuals who never possessed classified information, she said, that
rationale doesn't exist.

The government must show that the inmates had been plotting terrorist
crimes from their cells or some similar scenario, Martin said. Without
that, the restriction of communication of a group of prisoners raises
a suspicion that it is actually an effort by the government to deny
information to the press and public about what it is doing.

Who's in the program?
The federal penitentiary where the most dangerous criminals are held,
including the Unabomber and the Millennium Bomber, is the maximum
security prison known as ADMax at Florence, Colorado. The CMU is not
being implemented there, however; instead it is being implemented in
Terre Haute Federal Correctional Institution in Indiana.

The CMU is said to be targeting terrorists or suspected terrorists,
but many being held are not considered high risk or even convicted of
violent crimes.

According to a letter obtained by RAW STORY, sent by CMU inmate Dr.
Rafil Dhafir to one of his supporters, the current unit has at present
only 16 prisoners, but is expected to have 60-70 more added soon.
Dhafir writes that the CMU "is still not fully understood. The staff
here is struggling to make sense of the whole situation," and says
that the prisoners are "so far treated with great respect and good
accommodation" but "with the new system we will have absolutely no
privacy." The letter has been posted on a support site for Dhafir.

Dr. Dhafir was convicted for violating US sanctions against Iraq,
because he had sent humanitarian aid to the country during the
restricted period. Dhafir was not charged with any terrorism related
activities or a violent offense.

Also in CMU detention are also five of the "Lackawanna Six," a group
of six American citizens who traveled to Afghanistan before Sept. 11,
2001 and were indicted for giving material support to Al Qaeda. Yahya
Goba, one of the group's members -- who turns up as a government
witness in numerous cases -- is not in the system, although he was
sentenced to ten years along with the other Lackawanna defendants.

Unconstitutional?
Howard Keiffer believes that the program not only violates federal law
but the Constitution as well, saying it abridges the prisoners' right
to freedom of expression and association. These inmates are "not able
to communicate like other inmates," he said.

James Landrith, Jr., who heads "The Multiracial Activist," an on-line
journal that covers social and civil liberties issues relating to
multi-racialism, says the new program sets a "very, very bad precedent."

Landrith says it's "interesting that this administration is trying to
push these things through covertly" -- things he views as
unconstitutional restrictions -- "while you have a sitting Vice
President who could be charged in the short-term future with having
been involved in outing a CIA agent."

He added that the program "makes it very very hard for someone to
mount a real defense or appeal when they can't talk to anyone on the
outside."

Some say the program smacks of racial or religious profiling.

Paul Wright, the editor of Prison Legal News, told RAW STORY that
"segregating prisoners based on their race, national origin or
language directly contradicts the recent US supreme court ruling in
Johnson v. California which held that the racial segregation of
prisoners was illegal."

Johnson v. California, a 2005 U.S. Supreme Court decision, involved
the segregation of African-American inmates. While the Court noted in
its decision that it did not decide whether the segregation violated
the equal protection clause of the Constitution, it nonetheless
"explicitly reaffirm[ed] that the 'necessities of prison security and
discipline,' are a compelling government interest justifying only
those uses of race that are narrowly tailored to address those
necessities."

Race, national or ethnic origin, one's status as an alien, or any
innate or immutable characteristic that a person has no power to
change must be scrutinized by courts under the same standard: only a
compelling government interest and a narrowly tailored program is held
to be constitutional.

Religious discrimination is prohibited by Prison Bureau regulations.
The regulation states that Bureau "staff shall not discriminate
against inmates on the basis of race, religion, national origin, sex,
disability, or political belief. This includes the making of
administrative decisions and providing access to work, housing and
programs."

Director of the Human and Civil Rights Division of the Muslim American
Society Freedom Foundation Ibrahim Ramey says his group is "deeply
concerned about the violation of civil rights of incarcerated Muslims"
who are targeted by the program.

"The removal and concentration of Muslims" Ramey says, is a "violation
of the concept of innocent until proven guilty."

Though the inmates have been convicted, Ramey believes the CMU appears
to be "a precursor to a program of segregation of people by religion
in federal detention facilities."

"You don't segregate all Jews or all Christians," he adds.

Most of RAW STORY's calls and emails to inmates' attorneys or former
attorneys were not returned. Several refused to comment. One attorney
who represented one of the inmates at trial commented that "the new
facility creates hardships for the family because of the distance and
restrictions on visitation and phone use, but overall the staff are
treating the inmates very well; they are very professional in their
handling of the inmates."

Jennifer Van Bergen is the author of The Twilight of Democracy: The
Bush Plan for America, dubbed a "primer for citizenship." Her book
Archetypes for Writers: Using the Power of Your Subconscious will be
out in March 2007.

Muriel Kane provided research assistance for this article.

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