Terror Backers Can Fight Indefinite Isolation

     (CN) — The D.C. Circuit revived two convicted terrorism supporters’ claims that their placement in isolation units that allow limited visits and phone calls violates their due process rights.
     The Center for Constitutional Rights brought a complaint six years ago on behalf of Yassin Muhiddin Aref and other inmates whom the U.S. Bureau of Prisons placed in two experimental segregation units it established in Terre Haute, Ind., and Marion, Ill., between 2006 and 2008.
     Though Muslims represent only six percent of the total general U.S. prison population, they make up 60 percent of prisoners housed in segregated CMUs, shorthand for communication-management units.
     Inmates stay in CMUs for an average of three to five years, whereas disciplinary administrative segregation typically lasts one to four weeks.
     Prisoners in CMUs get eight hours of noncontact visiting time per month, and two 15-minute prescheduled phone calls per week, according to court records. By comparison, general-population prisoners get contact visiting time every month and 300 minutes of phone calls.
     A federal judge dismissed the inmates’ claims, but the D.C. Circuit remanded the case on Friday.
     “Because we find the duration and atypicality of CMU designation sufficient to give rise to a liberty interest, we reverse the district court and remand for further proceedings to determine whether appellants were afforded sufficient process,” Judge Janice Brown said, writing for a three-judge panel.
     Although acknowledging that CMUs residents are primarily Muslims convicted of terrorism crimes, the panel declined to find any stigma related to the designation.
     Two of the three plaintiffs, Aref and Kifah Jayyousi, are Muslim. Aref is an Iraqi refugee convicted of helping finance a terrorist organization’s purchase of a missile for a potential attack on U.S. soil, while Jayyousi communicated with al-Qaida members abroad to provide material support for terrorism.
     Daniel McGowan, the third plaintiff, is not Muslim. He was a member of the Earth Liberation Front convicted for the arsons of two Oregon-based lumber companies. McGowan was sentenced to prison in June 2007 with an added “terrorism enhancement.”
     While none of the prisoners have been held in a CMU for years, and McGowan has since been released, the appeals court said they still have standing because the two remaining prisoners may be transferred back to a CMU.
     “While an inmate can be designated to a CMU for abusing the prison’s communication system, most were transferred there to ensure prison officials could effectively monitor their communications – not for any punitive purpose. In this way, CMU designation is more analogous to transferring an individual to a harsher prison based on gang status, for instance, than it is to disciplinary segregation,” Brown wrote in the 46-page opinion.
     Even if the conditions in the CMU are less restrictive than administrative segregation, the duration of a prisoner’s stay in the CMU is indefinite, lasting years instead of mere weeks.
     “What we think pushes CMU designation over the Sandin threshold is its selectivity and duration, not its severity, and BOP’s recognition that some process – however de minimis – is due,” Brown said, citing a 1995 U.S. Supreme Court decision. (Emphasis in original).
     The panel dismissed the prisoners’ individual claims against Leslie Smith, chief of the prisons’ counter-terrorism unit, finding that Smith has qualified immunity.

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