WASHINGTON (CN) – Claiming lasting damage from prison isolation units, two Muslim former federal inmates urged a federal judge Thursday to strike down the policy used against them as unconstitutional.
Yassin Muhiddin Aref and Kifah Jayyousi are no longer in Bureau of Prisons custody but contend that they are still haunted by the incorrect information in their prison records that the BoP used to put them in solitary confinement.
Rachel Meeropol, an attorney for the men with the Center for Constitutional Rights, noted during a brief hearing Thursday morning that Jayyousi’s designation to a so-called communication management unit could hurt his upcoming challenge to a 10-year term of supervised release.
Jayyousi was convicted in 2007 for providing material support to terrorists through charitable donations, along with conspiracy to murder, kidnap and maim.
The sentencing judge noted that no evidence linked him to specific acts of violence but a BoP memo about his transfer to solitary in 2008 accused him of communicating, associating and assisting al-Qaida.
In an interview after Thursday’s hearing, Meeropol called this enough to tank Jayyousi’s appellate efforts. “They'll see all this erroneous information about his underlying conviction, about his behavior in prison, that was created as a result of these flawed procedures,” she said.
Along with five other federal prisoners, the Muslim men initially filed suit back in 2010, alleging that the BOP disproportionately singled out Muslims for isolation.
While in CMUs, prisoners are under constant surveillance and are barred from physical contact with visitors - including family members - and get minimal time for weekly phone calls compared with general population prisoners.
They also spend three to five years in CMUs versus disciplinary administrative segregation, which ordinarily lasts one to four weeks.
A federal judge had ruled in favor of the government in 2015, but the D.C. Circuit revived the challengers’ due-process claim a year later, holding that Aref and Jayyousi were entitled to a determination about whether the procedures used to designate them to CMUs were unconstitutional.
But the government said Thursday during a brief hearing that the claims are moot now since BoP released both men: Jayyousi in September 2017, and Aref in October of last year.
The government also has pointed to a new CMU policy implemented in 2013 that differs significantly from the procedures used against the men here.
Aref says prison officials failed during his incarceration to explain the rationale behind his designation and offered no meaningful way for him to challenge it.
Despite the existence of a new policy, attorney Meeropol said her clients are entitled to a ruling that the old one is unconstitutional, and on that basis that they deserve to have their records expunged.
U.S. District Judge Barbara Rothstein pondered that legal question.
"Is expungement a sufficient remedy to keep the case open," she asked.
As an alternative, she proposed that the government could proactively expunge their records, but noted that would deprive Aref and Jayyousi of a ruling on the constitutionality of the old rule.
During the hearing Meeropol said she would take such an offer to her clients if one is made. But in an interview after the hearing, Meeropol said that court-ordered expungement requires a ruling on the old policy. That means Rothstein must review all of the old evidence in the case about how BoP used to designate individuals to CMUs.
"It's only if she finds that those old procedures violated the Constitution that there will be grounds to expunge my clients' files," she said.
Such a ruling still matters, Meeropol said, because of the ongoing harm to Aref and Jayyousi.
Meeropol noted that Aref is in the custody of Immigration and Customs Enforcement, awaiting removal from the United States back to Iraq.
"He's in more restrictive conditions than other individuals in the facility where he's being held and no one will tell him why," Meeropol said.
She and Aref believe it's because of information the Bureau of Prisons shared with ICE, though she said they can’t be sure.
ICE did not return a request for comment on whether a former federal prisoner's history in a CMU would prompt the agency to house them in a more restrictive setting.
Aref, an Iraqi refugee who fled Saddam Hussein's regime, was convicted in 2007 on charges of material support for terrorism, money laundering, conspiracy and lying to the FBI.
According to the initial lawsuit in 2010, Aref was caught up in "a controversial and well-publicized sting operation," where he served as a witness to a loan for his co-defendant, who had agreed to exchange cash for checks from an undercover officer who claimed he got the money from buying a Chinese surface to air missile intended for a terror group.
Aref says he was brought into the operation solely to witness the loan but the government alleged that he engaged in money laundering by doing so.
At the time of his incarceration, he was a low-security prisoner but prison officials transferred him to the CMU at Terre Haute, Ind., in May 2007.
A notice provided to Aref about his transfer noted that his conviction included providing material support to a foreign terror group, and conspiracy to use a weapon of mass destruction.
But it also claimed he communicated, associated with and assisted terror group Jaish-e-Mohammed.
Meeropol said in court Thursday that BoP relied on that information in deciding to house Aref in a CMU, even though that's not what his conviction was about.
"It exists as if it is fact in the BoP files until today," she said.
All of that information should be expunged, Meeropol argued since Aref couldn't challenge the designation under the old policy, and there has not been an opportunity to correct any factual inaccuracies in his record.
Justice Department attorney Nicholas Cartier urged the court to set a briefing schedule for a motion to dismiss, but said he would first like to hear what factual inaccuracies exist in Aref's record.
"If there's an opportunity to correct that then we'd like to do that," he said.
The Bureau of Prisons did not return an email seeking comment on the ways its new policy differs from the old one.
In a May 10, 2018, status report, however, the government said that the new rule "requires that an inmate receive notice of the reasons for his transfer and requires BOP to regularly review an inmate's placement in the CMU."
According to the status report, federal inmates may now also challenge their designation, along with any aspect of their confinement.
For Meeropol meanwhile, a ruling on the constitutionality of the old policy would have broader implications.
"I think what's incredibly important here is that the Bureau of Prisons understands it cannot go back to its old ways," Meeropol said. "And a ruling that the old procedures, which it used for years, violate the Constitution, will provide some protection to the men who are still in the unit."
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