By William Fisher
Legal authorities are charging that racial profiling is responsible for low-risk Muslim prisoners convicted for crimes the Justice Department intimates are terror-related being held in a segregated unit where their communications are more severely restricted than high-profile inmates such as al-Qaeda operative Zacarias Moussaoui and Unabomber Theodore J. Kaczynski.
The facility is known as the Communications Management Unit (CMU), and is located in the medium security Federal prison at Terre Haute, Indiana. Its occupants are almost entirely Muslims.
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, also live-monitored, and subject to recording in English. Telephone calls and mail are monitored, the number of phone calls limited and visits are restricted to a total of four hours per month, according to special rules enforced by the Justice Department's Bureau of Prisons.
Most Federal inmates are granted 300 minutes of telephone time per month. At the CMU, the policy is one 15 minute call per week, and this can be reduced in the Warden's discretion to three minutes once a month.
Federal inmates are also ordinarily granted all-day visiting every week or every other week. CMU grants only two hours at a time, twice a month, with no physical contact, with inmate and visitor situated on opposite sides of a plexiglass window.
While critics of the CMU acknowledge that prison officials have the right to monitor inmates’ communications with the outside world, they charge that there are important problems with the CMU, including a lack of public notice about its formation and a lack of clarity about how inmates are chosen to be sent there. They also complain that the unit's communication restrictions are unduly harsh for inmates not considered high security risks.
The unit currently houses 18 convicts, and will be able to accommodate more than five times that many. Moussaoui, Kaczynski, and Atlanta Olympics bomber Eric Rudolph are held at the Government’s “supermax” prison in Florence, Colorado.
Washington lawyer Carmen Hernandez, who represents one of two non-Muslim prisoners and is president-elect of the National Association of Criminal Defense Lawyers, told Truthout that the Justice Department (DOJ) claims it does not consider sending inmates to the unit as a punitive measure. They contend that, as a result, they do not have to provide hearings and other procedures that are required when punishments are to be administered. They claim it's not a punitive measure, but when you start restricting access, it certainly would appear to be punitive. If you're going to restrict people's liberties beyond what they already are, it ought to be for a good, particularized reason, and there does not appear to be one here Hernandez said. "
Hernandez adds, “The primary problem with the opening of (the CMU) is that no one knows the criteria used to send the person imprisoned to that Unit. There was no notice of the move and no opportunity to challenge the basis of the move. Due process ordinarily requires notice and an opportunity to be heard. I do not believe that anyone who was transferred to the CMU received notice of the transfer nor the basis for the transfer.”
Howard Kieffer, a Santa Ana, California, defense lawyer who is head of Federal Defense Associates and an expert on Federal prison rules, has told lawyer/journalist Jennifer Van Bergen that the unit "screams racial profiling."
"It's highly suspect that basically all of the people in this program are of
Middle Eastern descent," Kieffer said.
Civil liberties groups tend to agree. A spokesman for the American Civil Liberties Union says, "If they really believed these people are serious terrorists, they
wouldn't be in this unit. They'd be in Colorado with the Unabomber and the rest of the people that the Bureau of Prisons thinks are serious threats."
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."
According to prison records cited by The Washington Post, current residents at Terre Haute include five members of the so-called Lackawanna Six, a group of Yemeni natives from Upstate New York who attended an al-Qaeda training camp; Randall Royer, a defendant prosecuted as part of the "Virginia jihad" case in Alexandria, Virginia; Enaam M. Arnaout, an Islamic charity director who pleaded guilty to diverting money to Islamic military groups in Bosnia and Chechnya; and Dr. Rafil Dhafir, a Syracuse N.Y. oncologist who was convicted of breaking the US sanctions against Iraq and various white-collar crimes.
The Post reports that the only non-Muslim inmates are an unidentified Colombian militant and Zvonko Busic, 61, former leader of a Croatian extremist group that hijacked a jetliner and set off a bomb that killed a police officer in 1976, according to prison records and defense lawyers. Busic is a client of Attorney Carmen Fernandez.
Dr. Dhafir, 58, an Iraqi-born US citizen from Syracuse, N.Y., was sentenced to 22 years for defrauding charity donors and conspiring to violate US economic sanctions against Saddam Hussein's government. Prior to his trial, politicians including former N.Y. Governor George Pataki trumpeted Dhafir’s arrest as a major victory in the war on terror. But no mention of terror was ever made in the courtroom in which a jury found him guilty of white-collar crimes.
In a recent letter to supporters, Dhafir recounted his abrupt, heavily guarded
transfer to Terre Haute in December and described it as part of "a nationwide
operation to put Muslims/Arabs in one place so that we can be closely monitored
regarding our communications."
"We are all concerned about the close intrusion on our communications," Dhafir
wrote. "We knew all along that our calls, mail and visits were monitored, but
with the new system we will have absolutely no privacy including our visits.
This is causing a great deal of anxiety and resentment especially among those
whose families speak no English."
Dhafir has come to be something of a poster-boy for what his supporters consider over-zealous prosecutions by US Attorneys. One of the most outspoken of the government’s critics is Katherine Hughes of Syracuse, who sat through every day of Dhafir’s 17-week trial.
She reports: “A founding member of the mosque in Syracuse, New York, Dhafir is a leader among the local Muslim community. An Iraqi-born oncologist, he has been a U.S. citizen for almost 30 years. Before his arrest, he and his wife, Priscilla, were very active in Syracuse civic affairs, and Dhafir often spoke at events and on local TV and radio about health and cancer care. In the early 1990s, in direct response to the humanitarian catastrophe caused by the brutal embargo on Iraq, he founded Help the Needy. For 13 years it sent food and aid to civilians suffering under U.N. sanctions imposed on Iraq at the insistence of the U.S. and Britain. Dhafir devoted much of his life to prayer and charity, and government records showed that he donated half his income to charity every year. In his oncology practice he treated those without medical insurance for free, paying for their chemotherapy out of his own pocket.
“Confident in his innocence and the American system of justice, Dhafir refused to accept a plea bargain, and the government piled on charges. When his case finally came to trial 19 months after his arrest, he faced a 60-count indictment of white-collar crime.
“The government employed many tools to inhibit Dhafir’s ability to mount a defense. Despite the facts that Syracuse’s Muslim community put up $2.3 million in bond money and that Dhafir offered to wear an electronic tag, he never was granted bail; his assets were frozen, making it more difficult to hire defense counsel; and he was denied access to both his records and his counsel. The government’s unlimited resources, moreover, allowed it to present its case in minutiae—seven government agencies had investigated Dr. Dhafir for five years before the case came to trial. The limited resources of the defense counsel, on the other hand, enabled it to call but a single witness, who testified for a mere 15 minutes.
“Although state and national officials smeared Dhafir in the press and New York Gov. George Pataki described Dhafir’s case as ‘money laundering…to help terrorist organizations’, local prosecutors successfully petitioned Judge Norman Mordue, the presiding judge who had denied Dhafir bail on four occasions, to prevent the charge of terrorism from being part of the trial. This ruling made his defense a nightmare: throughout the trial the prosecution hinted at more serious charges, but the defense was prohibited from addressing these inflammatory innuendos.” Dhafir is currently attempting to raise funds to obtain his trial transcript to prepare an appeal of his conviction.
Attorney Van Bergen writes that the CMU program 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.”
She elaborates: “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.” However, she adds, “A similar program, the CMU, was surreptitiously implemented in December 2006.”
According to attorney Howard Kieffer, 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.
Kieffer says, “It is just like the detentions after 9/11," he adds. "It's profiling."
Kieffer 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.