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U.S. Isolates Political Prisoners

Two recent federal appeals court decisions highlight some of the repressive measures used by U.S. authorities to isolate and silence political dissenters. Though the methods used by the two political prisoners involved in these cases may be distasteful to some people, Americans must understand that the U.S. government has repeatedly sanctioned such socalled "terrorist acts" against its political opponents, both foreign and domestic.

Likewise, the U.S. is responsible for helping to establish the rules of engagement that its political opponents use against it. Americans believe that we are an enlightened lot, but the truth is we seem to recognize the tyranny of others in far off lands while remaining blind to our own institutions of oppression. U.S. prisons contain many prisoners of war and political prisoners, yet American authorities refuse to acknowledge this. The cases of two such prisoners follows.

In 1970, Russell Shoats was convicted of first degree murder for his part in an attack on a Philadelphia police guardhouse. Shoats participated in the attack as a member of the Black Liberation Army. One police officer was killed and another seriously wounded in the attack. Shoats was sentenced to life imprisonment but twice escaped.

In 1991, Shoats was returned to Pennsylvania after having spent almost two years in the federal penitentiary at Leavenworth, Kansas. Since that time, he has been continuously isolated in administrative segregation. Conditions in Pennsylvania's Restricted Housing Units (RHU), even by supermax standards, are unusually harsh for adseg prisoners, considering that their separation from the prison general population is based supposedly on safety and security considerations, not as the result of disciplinary punishment. RHU adseg prisoners are not allowed to have radios, televisions, telephone calls (except emergency or legal), personal property except writing materials, or books other than legal materials and a personal religious volume. In addition, Shoats, who is one of the longest held political POWs, has been denied contact with his family for over eight years.

Regardless of what name you attach to it, the denial of most of the amenities available to general population prisoners is punitive in nature. But where prisoners in disciplinary segregation may be confined only up to a maximum of 90 days, prisoners in administrative segregation can be confined interminably. In Shoats' case, for over eight years. Thomas James, Special Assistant to Pennsylvania DOC commissioner Martin Horn, concedes that he has never witnessed one example of such permanent solitary confinement in his 22 years with the DOC.

Shoats filed a 42 U.S.C.§ 1983 civil suit challenging his continued confinement in adseg. The court of appeals for the Third circuit held that Shoats' extended period in administrative segregation with no prospect of immediate release in the near future met the "atypical and significant hardship" standard of Sandin v. Conner, 515 U.S. 472, 115 S.Ct 2293 (1995), and, therefore, Shoats has a protectable liberty interest.

The appeals court, however, also found that even though Shoats was entitled to due process in relation to his continued solitary confinement, such due process had been met by the Pennsylvania DOC's policy of reviewing adseg prisoners' confinement every 30 days. This is merely a kangaroocourt proceeding. Under the standard the U.S. Supreme Court set out in Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864 (1983), an informal, nonadversary review at which the prisoner has the opportunity to state his or her views, satisfies the requirements of due process.

The Pennsylvania DOC policy does allow for appeal to the superintendent in writing within two days of the completion of the hearing, but that's about the same as having a police commissioner hear an appeal of a case tried by the arresting officer. It's a nowin situation for the prisoner. In Shoats' case, it's obvious that the state has decided to "disappear" him by its continued isolation and sensory deprivation of Shoats.

In an aside, the Anarchist Black Cross Federation has published a pamphlet entitled "Human Rights or Control Units" which consists of two essays written by Shoats. It's available for $2 from AK Press, P.O. Box 40682, San Francisco, CA 941400682. See: Shoats v. Horn, 213 F.3d 140 (3rd Cir. 2000).

In the second case, Wadih E1Hage, a 39yearold U.S. citizen, who, until his arrest, resided in Arlington, Texas with his wife and seven children, was arrested on September 16, 1998 and charged with six conspiracies to kill U.S. citizens and destroy U.S. property abroad, 20 counts of perjury to a grand jury, and three counts of false statements. The charges against E1Hage arise from his alleged participation in conspiracies led by Osama Bin Laden to attack U.S. citizens and interests worldwide.

A lower U.S. district court denied ElHage's request for bail on several different occasions on the grounds that he was a flight risk and a danger to the community. The district court also found, without discussion or analysis, no due process violation arising from E1Hage's continued solitary confinement.

ElHage appealed and the court of appeals for the Second circuit affirmed. Using the "reasonably related to a legitimate penological objective" standard of Turner v. Safley 482 U.S. 78, 107 S.Ct. 2254 (1987), the appeals court held that a contemplated 3033 months of pretrial detention did not violate due process. It also held that the conditions of E1Hage's pretrial confinement were reasonably related to the government's asserted security concerns, which the government claims makes the restrictions on E1Hage nonpunitive in nature, and did not violate his due process rights.

Turner has generally been used for postconviction conditions of confinement and it's unusual to see it used in a pretrial context. The standard for pretrial detainees has generally been derived from Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861 (1979) which provides that a particular restriction or condition imposed on a pretrial detainee be "reasonably related to a legitimate nonpunjtive objective." See: U.S. v. E1Hage, 213 F.3d 74 (2nd Cir. 2000).

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Related legal cases

Shoats v. Horn

Shoats v. Horn, 213 F.3d 140, 213 F.3d 140 (3d Cir. 05/23/2000)

[1] U.S. Court of Appeals, Third Circuit

[2] No. 99-3603

[3] 213 F.3d 140, 213 F.3d 140, 2000

[4] May 23, 2000



[7] Daniel M. Kovalik, Esq. (Argued) Room 807 5 Gateway Center Pittsburgh, PA 15222 Attorney for Appellant John G. Knorr, III, Esq. (Argued) J. Bart DeLone, Esq. Office of Attorney General of Pennsylvania Department of Justice Strawberry Square, 15th Floor Harrisburg, PA 17120 Attorneys for Appellees

[8] Before: Mansmann, Nygaard and Rendell, Circuit Judges.

[9] The opinion of the court was delivered by: Nygaard, Circuit Judge.

[10] ARGUED FEBRUARY 3, 2000

[11] (Filed: May 23, 2000)


[13] Appellant Russell Shoats is currently imprisoned in the State Correctional Institution at Greene, Pennsylvania ("SCI-Greene"), and brings this civil rights action pursuant to 42 U.S.C. S 1983. He challenges his continued confinement in administrative custody, i.e., solitary confinement. Shoats claims that Appellees, the Pennsylvania Department of Corrections and Philip Johnson, Superintendent of SCI-Greene, have kept him in administrative custody in violation of his Fourteenth Amendment right to procedural due process. He seeks immediate release into the general prison population, damages, and other relief.

[14] Although we hold that Shoats has a protected liberty interest in being released from administrative confinement, we conclude that SCI-Greene's procedures for evaluating whether Shoats should remain in administrative custody comported with procedural due process requirements. Accordingly, we will affirm.

[15] I. Factual Background

[16] In 1970, Shoats was convicted of first degree murder for his part in an attack on a Philadelphia police guardhouse.

[17] Shoats participated in the attack as a member of a black revolutionary group that sought to eradicate all authority. One police officer was killed and another seriously wounded in the attack. Shoats was sentenced to life imprisonment. Seven years later, in September 1977, Shoats and several other inmates took over a cell block at the Huntingdon State Correctional Institution as part of an attempt to escape. Shoats injured several guards with a knife, and, along with three other prisoners, attempted to escape from the prison as planned. Two of the inmates were captured immediately and a third was killed during the escape. Shoats remained at large until he was captured in October 1977.

[18] While Shoats was a fugitive, he entered the home of a prison guard and forced him, his wife, and theirfive year old son to drive him in their car to a location outside Cokesburg, Pennsylvania. Shoats then ordered the hostages to enter the woods where he left them tied to a tree for almost four hours. Shoats was captured, and convicted of escape, robbery, kidnaping and simple assault. He was later transferred to Fairview State Hospital for the criminally insane. In March 1979, Shoats had guns smuggled in to him and escaped from that maximum security institution, again taking a hostage. In addition to escape and taking hostages, Shoats also has a history of threatening and assaulting his fellow inmates, and of causing disruptions at the institutions in which he is incarcerated.

[19] Pennsylvania correctional institutions have two basic types of housing, general population and restricted housing. An inmate in general population may be permitted to be outside of his cell for lengthy periods throughout the day. General population inmates are permitted to have contact visits at least one day per week, and may participate in educational and vocation programs, approved inmate organizations, and approved fund-raising projects.

[20] Inmates in disciplinary and administrative custody are confined in Restricted Housing Units (RHU). They are housed in disciplinary custody when, following a hearing, they have been found guilty of prison misconduct. The maximum period that an inmate may be confined in disciplinary custody is ninety days. In contrast, administrative custody is used to assure a safe and secure environment for all inmates and staff by separating those inmates whose presence in the general population constitutes a threat to themselves, others, or the safety and security of the institution, or who represent an escape risk. Inmates in administrative custody are not allowed to have radios, televisions, telephone calls (except emergency or legal), personal property except writing materials, or books other than legal materials and a personal religious volume. Non-legal visits of one per week are allowed under appropriate security procedures designated by the Program Review Committee (PRC). Pennsylvania does not provide inmates in administrative custody with educational programs, and all meals are eaten in the inmates' cells.

[21] Unlike disciplinary custody, there is no maximum period of confinement in administrative custody. Rather, release depends upon an evaluation of many factors. While time spent and behavior are to be considered, so too are continued risk, safety of others, and recommendations of prison personnel, including treatment staff.

[22] Under Department of Corrections (DOC) policy, an inmate must receive written notice of the reason for his placement in administrative custody and he is entitled to receive a hearing before a PRC within six days of the initial transfer to administrative custody. Every thirty days thereafter, inmates assigned to administrative custody have the opportunity to be personally interviewed by the PRC, which then determines whether the inmate should continue to be maintained in administrative custody, taking into account a variety of factors including the safety of other inmates and staff, the continued public or institutional risk, and the recommendation of treatment staff.

[23] In addition to separation from the general prison population, the DOC may order that specific prisoners be separated from each other and, if necessary, placed in different institutions. The DOC may enter such orders after reviewing specific instances of misconduct, and determining that specific separation is appropriate. As a result of such review, Shoats currently has fifteen individuals from whom he must be separated.

[24] As of 1989, Shoats was imprisoned at the State Correctional Institution in Dallas, Pennsylvania ("SCI-Dallas"), where he was placed in administrative custody. In November of that year he was transferred to the federal penitentiary at Leavenworth, Kansas. When he returned to Pennsylvania in June 1991, Shoats was again imprisoned at SCI-Dallas and again placed in administrative custody. In January 1995, he was transferred to SCI-Greene, where he continues to be held in administrative custody.

[25] Shoats has spent an extraordinarily long period in administrative custody. Nonetheless, his status has been subject to PRC review every thirty days. No member of a PRC has ever recommended releasing Shoats from administrative custody; they have universally concluded that Shoats remains a significant danger to institutional safety and security. These conclusions are supported by DOC psychological evaluations of Shoats, which characterize him as a remorseless sociopath knowledgeable in the workings of prisons and escape techniques, capable of leading other inmates in such undertakings, and inclined to do so. He has also been described as volatile and manipulative.

[26] In June 1998, the Secretary of the DOC asked Thomas James, a special assistant to the Secretary, to conduct an extensive review to determine whether Shoats should remain in administrative custody. James recognized that such extended administrative custody was atypical for the prison population. He noted that Shoats' volatile nature and need to be separated from numerous other prisoners make his situation unique. However, his review also concluded that, as with other inmates who have a history of escape and violence against correctional officers and other inmates, Shoats' continued placement in administrative custody is absolutely necessary.

[27] Thereafter, Shoats brought this action pursuant to 42 U.S.C. S 1983, seeking to be immediately released into the general prison population. He also sought damages and other relief. He claims that the appellees, the Secretary of the DOC and the Superintendent of SCI-Greene, have kept him in administrative custody in violation of his Fourteenth Amendment right to procedural due process.

[28] Following discovery, the parties filed cross-motions for summary judgment. The District Court agreed with Shoats that he possesses a protected liberty interest in obtaining release into the general population. However, adopting the recommendation of the magistrate judge, the District Court held that the defendants had provided Shoats with the process he was due and granted the defendants' motion for summary judgment. This appeal followed.

[29] II. Discussion

[30] Shoats claims that the duration of his placement in solitary confinement, and the attendant hardships of such confinement, require that we affirm the District Court's conclusion that he possesses a protected liberty interest in being released to the general prison population. He also claims that Defendants did not afford him all of the process he was due. The record evidence leads us to conclude that although Shoats' confinement is sufficient to trigger the procedural protections of the Due Process Clause, the process provided him was sufficient to pass Constitutional muster.

[31] A. Shoats' Liberty Interest

[32] In analyzing a procedural due process claim, thefirst step is to determine whether the nature of the interest is one within the contemplation of the `liberty or property' language of the Fourteenth Amendment. See Fuentes v. Shevin, 407 U.S. 67 (1972). Once we determine that the interest asserted is protected by the Due Process Clause, the question then becomes what process is due to protect it. See Morrissey v. Brewer, 408 U.S. 471, 481 (1972).

[33] Protected liberty or property interests generally arise either from the Due Process Clause or from state-created statutory entitlement. See Board of Regents v. Roth, 408 U.S. 564, 575 (1972). In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court announced a new standard for determining whether prison conditions deprive a prisoner of a liberty interest that is protected by procedural due process guarantees. Although the Court acknowledged that liberty interests could arise from means other than the Due Process Clause itself, the Court concluded that state-created liberty interests could arise only when a prison's action imposed an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." 515 U.S. at 483.

[34] At issue in Sandin was whether the plaintiff's thirty-day detention in disciplinary custody in a Hawaii prison impacted any protected liberty interest under the Fourteenth Amendment. The Court concluded that the prisoner in Sandin did not have a protected liberty interest in remaining free of disciplinary detention or segregation because his thirty-day detention, although punitive,"did not exceed similar, but totally discretionary confinement in either duration or degree of restriction." Id. at 486. In finding that the prisoner's thirty-day confinement in disciplinary custody did not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest, the Court considered the following two factors: 1) the amount of time the prisoner was placed into disciplinary segregation; and 2) whether the conditions of his confinement in disciplinary segregation were significantly more restrictive than those imposed upon other inmates in solitary confinement. Id.

[35] The parties in this case do not dispute the fact that very few Pennsylvania prisoners have been confined in administrative custody for periods of eight years or more. Ben Varner, the Superintendent who reviewed the PRC decisions on Shoats, testified that to the best of his recollection, approximately one percent of the inmate population at SCI-Greene has been confined in restricted housing for such lengthy periods of time. (Varner Dep. at 54-61; A145-52). Moreover, Thomas James, Special Assistant to DOC Commissioner Martin Horn, concedes that the amount of time Shoats has already spent in administrative confinement is not only atypical, but is indeed "unique." A214-15.

[36] In addition, the record suggests that Shoats' long-term confinement has imposed a significant hardship on him in relation to the ordinary incidents of prison life. Shoats has been confined in virtual isolation for almost eight years. See A45 (Shoats Dep.). He is confined in his cell for 23 hours a day, five days a week, and 24 hours a day, two days a week. Id. He eats meals by himself. Id. His sole contact is with DOC officials, and has been denied contact with his family for almost eight years. Id. He is prohibited from participating in any educational, vocational, or other organizational activities. Id. He is prohibited from visiting the library. Id. James concedes that he has never witnessed one example of such permanent solitary confinement in his 22 years with the DOC. See A211. Moreover, James explained that he would be concerned about the psychological damage to an inmate after only 90 days of such confinement and would generally recommend transfer to the general population after 90 days as a consequence. See A184-85, 188-90.

[37] Based on this record, we have no difficulty concluding that eight years in administrative custody, with no prospect of immediate release in the near future, is "atypical" in relation to the ordinary incidents of prison life, and that Shoats' eight-year confinement subjects him to conditions that differ significantly from "routine" prison conditions in Pennsylvania state institutions.

[38] B. Shoats' Due Process Claim

[39] Although we hold that Shoats has a protected liberty interest that has been adversely affected by his indefinite segregation in administrative custody, we reject Shoats' argument that he has been deprived of the process he is due under the Fourteenth Amendment.

[40] In Hewitt v. Helms, 459 U.S. 460 (1983), the Supreme Court considered whether prison inmates were entitled to due process before being placed in solitary confinement for administrative -- rather than disciplinary -- reasons. The Court expressly rejected the idea that due process required a "detailed adversary proceeding," on the ground that it would not "materially assist" the decision to be made. Id. at 473-74. The Court further held that in these situations, an "informal, non-adversary review" at which the prisoner has the opportunity to state his views, satisfies the requirements of due process:

[41] An inmate must merely receive some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation. Ordinarily a written statement by the inmate will accomplish this purpose, although prison administrators may find it more useful to permit oral presentations in cases where they believe a written statement would be ineffective. So long as this occurs, and the decisionmaker reviews the charges and then- available evidence against the prisoner, the Due Process Clause is satisfied. Id. at 476.

[42] The inmate in Hewitt received notice of the charges against him the day after his misconduct took place. Id. at 477. Only five days after his transfer to administrative segregation, a Hearing Committee reviewed the existing evidence against him. Id. Moreover, the inmate acknowledged on his misconduct form that he "had the opportunity to have [his] version reported as part of the record," and thus had an opportunity to present a statement to the Committee. Id. The Supreme Court held that this proceeding plainly satisfied the Due Process requirements for confinement of the inmate in administrative custody. Id. Here, Shoats has been given exactly the same opportunities as those given to the inmate in Hewitt; there is therefore no question that, on its face, the procedure provided to Shoats is constitutionally adequate.

[43] The process provided by the Pennsylvania DOC to an inmate confined in administrative custody is as follows. A hearing is conducted by the PRC, in which the rationale for the administrative custody placement is read and explained to the inmate. See A84. The inmate is permitted to respond to the rationale for administrative custody placement either orally or in writing. Id. A Committee member then drafts a summary of the inmate's statements. Id. A written summary of the entire hearing is then prepared, which includes the reasons relied upon by the PRC to reach its decision, and a copy of this summary is given to the inmate. Id.

[44] An inmate may appeal the PRC's decision to the Superintendent in writing within two days of the completion of the hearing, and the decision of the Superintendent must be forwarded to the inmate within ten days of the receipt of the appeal. See A85. The inmate's right to appeal terminates when he or she is released from administrative custody. Id.

[45] At least once every thirty days, those inmates assigned to administrative custody have the right to be personally interviewed by the PRC. Id. For those inmates not released from administrative custody following the thirty-day review, the reasons for the PRC's decision are forwarded to the Superintendent for his or her review. Id. If the Superintendent agrees that the rationale for holding an inmate in administrative custody is reasonable, he or she notifies the inmate accordingly. Id. If, however, the Superintendent believes the inmate should be released to the general population, he or she will so order it. Id.

[46] After an inmate is confined for ninety days in administrative custody, the Superintendent must complete a formal report to the Regional Deputy Commissioner, who then reviews the recommendation of the institution to determine if any further action is necessary. Id. Further action may include release to the general population, transfer to another facility or program, or continuation in administrative custody. Id. In light of the standard set forth by the Supreme Court in Hewitt, we conclude that the Pennsylvania procedures clearly comply with due process requirements.

[47] The record reflects that the procedures called for did in fact occur. Specific program review committee progress reports are included in the record, which reflect Shoats' choice to appear at some, but not all, of his PRC reviews. The reports reflect that Shoats raised and discussed various issues at these committee sessions, including his desire for library time, complaints about the commissary and medical treatment, visitation rights, and other general matters. In many instances, Shoats complained about the denial of his release into the general population, and he was advised of the prison's reasons for denying his release. There is no indication that Shoats presented any countervailing arguments or considerations to the review committee.

[48] Shoats does not argue that he was denied the opportunity to respond or be heard, nor does he argue that the prison authorities failed to consider favorable information or that they otherwise dealt with his case in a perfunctory fashion. Cf. Sourbeer v. Robinson , 791 F.2d 1094, 1101 (3d Cir. 1986). In fact, Shoats does not contend that he made any arguments, or offered any favorable factual data to counter the prison's rationale for holding him. Rather, Shoats argues that his continued confinement in administrative custody is based solely on his past crimes of murder, escape, kidnaping and assault, and therefore has no contemporaneous justification. (Appellant's Br. at 42-48). We disagree. Shoats is not confined to administrative custody simply because he committed crimes in the past, but because he is, in the considered judgment of all the prison professionals who have evaluated him, a current threat to the security and good order of the institution, and to the safety of other people. See A238-44 (Mistrick Dep.). This assessment is based partly on Shoats' conduct, but also on the prison professionals' current impressions of him based on their day-to-day dealings with Shoats over time. See, e.g., A243 (Mistrick Dep.)("[H]e represents a danger to the secure running of the institution and the safety of others"); A115 (Varner Dep.)("[I]n my opinion, this man was still a danger"); A169 (White Dep.)("I felt he was still dangerous").

[49] Even were we to conclude that Shoats' continued confinement in administrative custody is based solely on his past crimes, the process he received would nonetheless pass constitutional muster, because predictions of likely future behavior based on a generally volatile criminal character have been upheld by the Supreme Court:

[50] In assessing the seriousness of a threat to institutional security, prison administrators necessarily draw on more than the specific facts surrounding a particular incident; instead, they must consider the character of the inmates confined in the institution, recent and longstanding relations between prisoners and guards, prisoners inter se, and the like. In the volatile atmosphere of a prison, an inmate easily may constitute an unacceptable threat to the safety of other prisoners and guards even if he himself has committed no misconduct; rumor, reputation, and even more imponderable factors may suffice to spark potentially disastrous incidents. The judgment of prison officials in this context, like that of those making parole decisions, turns largely on purely subjective evaluations and on predictions of future behavior. See Hewitt, 459 U.S. at 474 (internal citations omitted). Thus, Shoats could conceivably be held in administrative custody merely because his prior crimes reasonably foreshadow future misconduct.

[51] Shoats also claims that his confinement is the result of the "bias" of Superintendent Varner, who reviewed his confinement at SCI-Greene, first as a member of the PRC and later as Superintendent. (Appellant's Br. at 38-39). However, Shoats' administrative custody dates back to 1991, long before Shoats came to SCI-Greene, and it has continued to the present, long after Varner left SCI-Greene in April 1998. No member of the PRC, and no Superintendent, at SCI-Greene or elsewhere, has ever recommended that Shoats be released to the general prison population. Thus, we hold that Shoats' "bias" argument is without foundation.

[52] Shoats' confinement in administrative custody has been, in accordance with the DOC regulations, reviewed every month by the PRC and the Superintendent. Furthermore, Shoats has been given the opportunity to present his views personally at each review. See A85-86. In effect, the record demonstrates that Shoats' continued placement in administrative custody is supported by evidence sufficient to pass constitutional muster. Because Shoats has failed to provide any support for his assertions that his PRC reviews were constitutionally inadequate, we hold that the periodic reviews conducted by the PRC here comport with the minimum constitutional standards for due process.

[53] III.

[54] Accordingly, we affirm the district court's decision.

[55] A True Copy:

[56] Teste:

[57] Clerk of the United States Court of Appeals for the Third Circuit

United States v. El-Hage

United States v. El-Hage, 213 F.3d 74, 213 F.3d 74 (2d Cir. 05/25/2000)

[1] U.S. Court of Appeals, Second Circuit

[2] Docket No. 00-1025

[3] 213 F.3d 74, 213 F.3d 74, 2000

[4] May 25, 2000


[6] Kenneth M. Karas, Assistant United States Attorney, New York, New York (Mary Jo White, United States Attorney, Patrick J. Fitzgerald, Michael J. Garcia, Paul W. Butler, Ira M. Feinberg, Baruch Weiss, Assistant United States Attorneys, Southern District of New York, New York, New York, of counsel), for Appellee United States of America. Joshua L. Dratel, Joshua L. Dratel, P.C., New York, New York (Sam A. Schmidt, Deborah I. Meyer, Law Offices of Sam A. Schmidt, New York, New York, of counsel), for Defendant-Appellant Wadih El-Hage.

[7] Before: Cardamone, and Cabranes, Circuit Judges, and Trager*, District Judge. * Hon. David G. Trager, United States District Court Judge for the Eastern District of New York, sitting by designation.

[8] The opinion of the court was delivered by: Per Curiam

[9] Argued: March 13, 2000

[10] Defendant Wadih El-Hage appeals from an order of the United States District Court for the Southern District of New York (Sand, J.) that denied his motion to be released on bail, denied his application for modification of the condition of his confinement, and denied his application for an evidentiary hearing.

[11] Affirmed.

[12] Defendant Wadih El-Hage appeals from an order entered orally on January 10, 2000 and by written endorsement January 13, 2000 in the United States District Court for the Southern District of New York (Sand, J.). The order denied defendant's motion to be released on bail, his application for rescission or for substantial modification of the Special Administrative Measures (S.A.M.) of his confinement, and his application for an evidentiary hearing regarding the substance of the motion. On March 13, 2000 this panel heard oral argument on this appeal, and on March 17, 2000 entered an order denying each of the three applications, in effect affirming the order of the district court. We noted in our order that this opinion was to follow in due course.

[13] Pretrial detention is authorized by statute. Under 18 U.S.C. § 3142(e) a person may be detained before trial if it is found that no condition or combination of conditions of an indicted defendant "will reasonably assure the appearance of the [defendant] . . . and the safety of any other person and the community." Due process limits how long an accused may be detained in prison without a trial. But exactly how long such detention may extend before violating due process limits -- the issue we face on this appeal -- has not been fixed in the law. The 30-33 months of pretrial detention served or contemplated to be served before the conclusion of a trial in this case is extraordinary, and justified only by the unprecedented scope of violence, that the conspiracy of which defendant was allegedly a part inflicted on innocent victims, by the extraordinarily complex and difficult preparation needed to present this case, and, more particularly, because the lengthy delay in bringing defendant to trial may not be laid at the government's doorstep.


[15] A. Facts

[16] Wadih El-Hage is a 39-year old United States citizen who, until his arrest, resided in Arlington, Texas with his wife and seven children. El-Hage, a native of Lebanon, has lived in the United States for much of the past 22 years, and also has lived in Pakistan, the Sudan, and Kenya with his family during that period. He was arrested on September 16, 1998 and charged with six conspiracies to kill United States citizens and destroy United States property abroad, 20 counts of perjury based on his grand jury testimony, and three counts of false statements. The charges against El-Hage arise from his alleged participation in conspiracies led by co-defendant Usama Bin Laden, who is still at large, to attack United States citizens and interests world-wide.

[17] The indictment charges defendant with being a key participant in the terrorist organization founded by Bin Laden, called "al Qaeda" (the Base). The indictment states that Bin Laden and al Qaeda issued a public declaration of war against the American military in August 1996 and, on February 23, 1998, endorsed a statement that Muslims should kill Americans, anywhere they could be found. Count One of the indictment asserts that to achieve these aims, al Qaeda provided its members with military and intelligence training, training in guerilla warfare, urban fighting, explosives, assassination and kidnaping, and that it purchased, stored and transported weapons and explosives, and made efforts to obtain the components of nuclear and chemical weapons. Count One also declares that al Qaeda trained the persons responsible for the killing of 18 members of the United States armed forces in Mogadishu, Somalia, on October 3-4, 1993. The indictment further charges that on August 7, 1998 members of al Qaeda carried out the bombing of the United States embassy in Nairobi, Kenya causing more than 212 deaths and injuring 4,500 people, and the bombing of the United States embassy in Dar es Salaam, Tanzania that caused 11 deaths and injuries to 85 people.

[18] On September 24, 1997, prior to the embassy bombings, El-Hage was called to testify before a grand jury in the Southern District of New York investigating the activities of Bin Laden and al Qaeda. Based on his testimony that day El-Hage was indicted and charged with seven counts of perjury (Counts 245 through 251) concerning his contacts with Bin Laden and al Qaeda and his knowledge of their activities. After the embassy bombings, El-Hage was again subpoenaed to appear before the grand jury on September 16, 1998. Thirteen counts of perjury (Counts 252 through 264) were added to his indictment based on his testimony that day regarding his knowledge concerning documents found in his files in Kenya.

[19] B. Bail Applications

[20] El-Hage first sought bail on September 23, 1998 when he was charged with eight counts of perjury and three counts of false statements. United States Magistrate Judge Leonard Bernikow denied bail on the ground of risk of flight, without reaching the issue of dangerousness, relying on El-Hage's foreign ties and extensive foreign travel, that he had previously failed to appear on a minor bad check charge in Texas, the dishonesty element of the perjury charges, and the gravity of the then-unindicted accusations against him. On November 17, 1998 the district court judge toured the wing of the Manhattan Metropolitan Correctional Facility where El-Hage is held.

[21] After he was indicted on the subsequent conspiracy charges, defendant again sought bail on February 8, 1999 before United States District Court Judge Leonard B. Sand. Judge Sand denied bail, citing the government's "overwhelming case for detention based on danger to the community and risk of flight." El-Hage filed the instant bail application, from the denial of which this appeal has been taken, on December 6, 1999.

[22] In opposition to the most recent bail motion, the government submitted a detailed affirmation by an Assistant United States Attorney which alleged El-Hage played a significant role in al Qaeda's operations from at least 1992 until his arrest in 1998. Defendant was one of Bin- Laden's trusted associates, privy to al Qaeda's secrets and plans, served as Bin Laden's personal secretary, traveled on his American passport on Bin Laden's behalf, moved Bin Laden's money, and worked in Bin Laden's factories in the Sudan -- factories which served as a cover for the procurement of chemicals and weapons.

[23] Documents found on El-Hage's computer seized at his home in Nairobi, Kenya in 1997, the affirmation continues, details El-Hage's role and his overall dangerousness. Other evidence, apart from this computer record, confirms El-Hage's role in conveying military orders from Bin Laden including the direction that the East African cell (which later carried out the embassy bombings) "militarize," and that defendant had a role in providing false passports and in seeking weapons including Stinger missiles for al Qaeda members. Passport photographs of al Qaeda members who participated in al Qaeda's efforts against American troops in Somalia were also recovered in the Kenya files.

[24] The accused clearly has the ability to flee. El-Hage has been a frequent traveler who lived in Afghanistan, Pakistan and the United States in the 1980's, eventually moving to the Sudan in 1992 and Kenya in 1994, before returning to the United States in 1997. By his own admission, while living in the Sudan and Kenya, he traveled to Tanzania, Somalia, Italy, Slovakia, Russia, Afghanistan, Pakistan, England and other countries. He has demonstrated access to false travel documents.

[25] C. Conditions of Confinement

[26] Defendant's trial is expected to start on September 5, 2000 and to continue for six to nine months, at which point he will have been confined 30-33 months without a conviction. He was subject to solitary confinement for the first 15 months of his detention, but before the January 10, 2000 hearing, he was permitted to have a cellmate. In addition, the government has revised El-Hage's S.A.M. conditions to give him seven extra minutes of time in each phone call to his family and to provide him with a plastic chair so that he can review documents more comfortably. He is also permitted three calls per month to his family, rather than the one call per month usual for inmates in administrative detention.

[27] At that same hearing, Judge Sand suggested, and the government agreed, that an earlier trial date could be set for the perjury charges and that the detention question could be revisited thereafter, but El-Hage declined that offer and insisted on a single trial on all charges against him. The district court then denied El-Hage's motion for bail, finding "no reason to conclude that the risk of flight as of January 10, 2000, is any less than it was at a prior hearing on the matter," and that "nothing has happened since the earlier hearings which causes the Court to believe that dangerousness is in any way reduced." The district court also found, without discussion or analysis, no due process violation arising from El-Hage's continued confinement or the conditions of such confinement.


[29] Defendant declares that despite reams of exhibits in his case there is not a single witness who can state directly that defendant was a member of al Qaeda, knew of any plans to commit violent acts against United States citizens and property, or that he knowingly committed any act in furtherance of any illegal objective. He believes his right to due process has been denied because his confinement denies him the right to participate in the preparation of his defense.

[30] The government justifies its very lengthy pretrial detention of defendant and its opposition to his bail motion on the trial court's findings of risk of flight and dangerousness. Further, the government urges that the prison restrictions on El-Hage also do not violate due process and that defendant is not entitled to an evidentiary hearing. Under our system for the fair administration of criminal justice the government in all its actions is bound by fixed rules of law so that a citizen can ascertain with some degree of certainty how the government will use its power in a given circumstance and can use that knowledge to conduct his or her affairs. The fixed rules implicated on this appeal are those derived from the concept of due process of the law, the subject to which we now turn.

[31] I. Due Process and the Length of Confinement

[32] In determining whether El-Hage's pretrial detention violated his due process rights, we review the district court's factual determinations for clear error. See United States v. Ferranti, 66 F.3d 540, 542 (2d Cir. 1995). The constitutional significance of those findings, including the ultimate determination of whether due process has been violated, is reviewed de novo. United States v. Millan, 4 F.3d 1038, 1043 (2d Cir. 1993).

[33] It is well-settled that so long as pretrial detention is administrative rather than punitive, it is constitutional. See United States v. Salerno, 481 U.S. 739, 746-51 (1987); Bell v. Wolfish, 441 U.S. 520, 535-40 (1979); Millan, 4 F.3d at 1042. Whether detention is punitive rather than regulatory generally turns on "whether an alternative purpose to which [the detention] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose." Wolfish, 441 U.S. at 538. To determine whether the length of pretrial detention has become unconstitutionally excessive, a court must weigh: (1) its length, (2) the extent of the prosecution's responsibility for delay of the trial, (3) the gravity of the charges, and (4) the strength of the evidence upon which detention was based, i.e., the evidence of risk of flight and dangerousness. See United States v. El-Gabrowny, 35 F.3d 63, 65 (2d Cir. 1994).

[34] (1) Length.

[35] While the length of pretrial detention is a factor in determining whether due process has been violated, the length of detention alone is not dispositive and "will rarely by itself offend due process." Millan, 4 F.3d at 1044 (quoting United States v. Orena, 986 F.2d 628, 631 (2d Cir. 1993); see El-Gabrowny, 35 F.3d at 65. El-Hage's pretrial detention has already been long, and is realistically projected to continue for a very long time. Nevertheless, the duration of the detention is not wholly unprecedented, especially for a complex case involving an extensive conspiracy. For example, in El-Gabrowny, a case arising out of the World Trade Center bombing, the prisoner had been detained 18 months at the time of the hearing and no verdict was expected for another nine months. In Millan, a heroin trafficking case, we permitted a detention that had lasted 24 months at the time of hearing and was expected to last a total of 30 to 31 months before a verdict could be obtained.

[36] At the same time, due process concerns in cases involving similar periods of detention have, on occasion, compelled the defendants' release on bail. See United States v. Ojeda Rios, 846 F.2d 167 (2d Cir. 1988) (holding unconstitutional the continued detention of a defendant who had been in custody for 32 months and whose trial was not expected to start for another four months); United States v. Gonzales Claudio, 806 F.2d 334 (2d Cir. 1986) (finding unconstitutional the continued detention of a prisoner who had been in custody for 14 months and was expected to be held for another 12 months during the course of trial). Hence, the length of El-Hage's detention weighs heavily in his favor in his argument that his due process rights have been violated.

[37] (2) Responsibility for Delay.

[38] In this case, the prosecution appears to bear very little responsibility for the delay of trial. Everyone involved agrees that the underlying case is of exceptional complexity and that discovery and trial preparation are of necessity extremely time-consuming for both sides. The district court did not find any delay attributable to the government. Indeed, it was defense counsel who, when Judge Sand suggested it, declined an early trial solely on the perjury and false statement counts. This finding on responsibility for delay was not clearly erroneous and weighs against El-Hage's argument that his due process rights have been violated.

[39] (3) Gravity of the Charges.

[40] As discussed above, El-Hage is charged with playing a vital role in a worldwide terrorist organization believed to have orchestrated several violent attacks and to pose a substantial threat to national security interests. Thus this factor also weighs heavily in the government's favor.

[41] (4) Strength of the Proof.

[42] Last, we come to the strength of the evidence underlying the detention. The evidence in this case is similar to, albeit somewhat weaker than, that in El-Gabrowny. The district court correctly found that El-Hage is quite capable of flight, given his apparent access to false documents, his extensive history of travel and residence in other countries, and his alleged ties to an extensive and well-organized terrorist group whose leader and seven other of whose indicted members are still at large. His indictment and upcoming trial on well-publicized, very serious charges for which, if he is convicted, life imprisonment is a likely sentence, give him a strong motive to flee. Although El-Hage is an American citizen with a wife and seven small children in Texas, who presented himself for both of his grand jury hearings, he nevertheless represents a serious flight risk. With respect to dangerousness, the district court explicitly found that El-Hage would not be able to resume his active role in al Qaeda if he were released, but found that his knowledge of the extent of the government investigation, if communicated to other al Qaeda members, would be dangerous to the United States. While El-Hage himself has not been accused of performing violent acts, he is accused of playing a central role in a conspiracy to kill U.S. nationals. In an ordinary case, the risk of the defendant's flight alone might not justify a detention of this length. A longer pretrial detention is more justifiable for a defendant found to be dangerous than for a defendant who presents only a risk of flight. This is because release of the former risks injury to other persons and the community, while release of the latter ordinarily risks only the loss of his conviction and imprisonment. See Orena, 986 F.2d at 631.

[43] Here, the defendant's capacity for flight exacerbates his dangerousness. El-Hage may be incapable of resuming his alleged former role in al Qaeda. Nevertheless, the evidence amply demonstrates the organization's strong interest in evading the United States government. Even though he was not given access to classified information, pretrial discovery has provided El-Hage with a significant quantity of information that the government has collected about al Qaeda as part of its case. If al Qaeda had access to this information, it might be better able to avoid U.S. or other investigators both in planning possible future terrorist actions and in hiding the evidence of its past crimes, as the district court found. In this case, where the killings underlying the charges were extraordinary in scale and were also allegedly deliberate acts of terrorism, not only were the district court's findings as to risk of flight and dangerousness not clearly erroneous, but the evidence supporting them is strong.

[44] Legal Conclusion.

[45] Consequently, after weighing the length of the delay, the government's lack of fault in causing the delay, and the strength of the evidence, we conclude that El-Hage's continued detention is regulatory and that a rational purpose may be assigned it. Hence, the detention does not violate defendant's rights to due process.

[46] II. Due Process and the Conditions of Confinement

[47] El-Hage asserts that the conditions of his confinement violate his due process rights because they restrict his ability to prepare his own defense. In Turner v. Safley, 482 U.S. 78, 87 (1987), the Supreme Court clarified what standard of review governs inmates' constitutional claims. To determine whether a prison regulation "burdens fundamental rights," the reviewing court asks whether the regulation is "'reasonably related' to legitimate penological objectives, or whether it represents an 'exaggerated response' to those concerns." Id. Turner outlined a four-factor test for evaluating whether a prison regulation that allegedly violates a constitutional right is reasonably related to a valid correctional objective. The court must consider first whether there is a "valid, rational connection" between the regulation and the legitimate governmental interest used to justify it; second, whether there are alternative means for the prisoner to exercise the right at issue; third, the impact that the desired accommodation will have on guards, other inmates, and prison resources; and fourth, the absence of "ready alternatives." Id. at 89-91; accord United States v. Felipe, 148 F.3d 101, 110 (2d Cir. 1998).

[48] Where the regulation at issue imposes pretrial, rather than post- conviction, restrictions on liberty, the "legitimate penological interests" served must go beyond the traditional objectives of rehabilitation or punishment. See McGinnis v. Royster, 410 U.S. 263, 273 (1973) ("[I]t would hardly be appropriate for the State to undertake in the pretrial detention period programs to rehabilitate a man still clothed with a presumption of innocence."); cf. Schall v. Martin, 467 U.S. 253, 263-64 (1984) (upholding pretrial detention of juvenile delinquents only after a finding of "serious risk" on the ground that it served a legitimate, non-punitive regulatory purpose). The government contends the restrictions imposed on El-Hage are reasonably related to the non-punitive objective of protecting national security interests. It maintains that the challenged conditions serve the regulatory purpose of preventing El-Hage from communicating with his unconfined co- conspirators, and thereby from facilitating additional terrorist acts by those co-conspirators. See Wolfish, 441 U.S. at 535. The government has supported these assertions with ample evidence of the defendant's extensive terrorist connections.

[49] In Felipe, we upheld even more onerous restrictions, including a virtual ban on communications with others, aside from prison employees, Felipe's attorney, and five approved individuals. Though Felipe involved restrictions imposed on a convicted felon sentenced to imprisonment, the governmental interest behind those restrictions related to security concerns, just as they do in the case at hand, and they were not intended as part of Felipe's punishment or rehabilitation. The security concerns in Felipe might have been more acute because Felipe had ordered murders and beatings from prison, unlike El-Hage who is not alleged to have made any illegal communications from prison. However, the restrictions at issue in Felipe were correspondingly more severe than those we are reviewing (e.g., defendant Felipe had no cellmate and was not allowed visits with his attorney or family members). In this light, we conclude that the conditions of El-Hage's confinement are reasonably related to the government's asserted security concerns.

[50] The alternative to El-Hage's current confinement conditions appears to be his confinement as part of the general prison population. Because his dangerousness arises out of the information he might communicate to others, it was reasonable for the government to find that alternative unacceptable.

[51] III. Denial of an Evidentiary Hearing

[52] El-Hage argues, citing only United States v. Lee, 79 F. Supp.2d 1280 (D.N.M. 1999), that he was entitled to an evidentiary hearing below because the government has not identified any documents that, if revealed, would pose a threat to the security of the United States. A detention hearing need not be an evidentiary hearing. While the defendant may present his own witnesses and cross-examine any witnesses that the government calls, either party may proceed by proffer and the rules of evidence do not apply. See 18 U.S.C. § 3142(f) (1994 & Supp. III 1997); Ferranti, 66 F.3d at 542. Nothing in Lee contradicts this proposition. The district court proceedings here, which have included three detention hearings to date and left open the possibility of more hearings if circumstances warrant, were adequate.


[54] The order of the district court is accordingly affirmed.