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Prisoner Education Guide

Court Orders Attorney General to Allow Law Students Access to Political Prisoners at Federal Supermax

On January 17, 2008, U.S. District Judge Wiley Y. Daniel granted a preliminary injunction permitting University of Denver law students access to two prisoners housed at the Bureau of Prisons’ (BOP) Administrative Maximum facility (Supermax) in Florence, Colorado.

On February 25, 2005, NBC broadcasted an investigative news report related to correspondence between Nidal Ayyad, Mahmud Abouhalima, and certain prisoners in Spain allegedly tied to the 2004 Madrid train bombings. Ayyad and Abouhalima are serving sentences in the Supermax for convictions related to the 1993 World Trade Center bombing.
In response to the news report, then Attorney General, Alberto Gonzales, imposed Special Administrative Measures (SAMs) on Ayyad and Abouhalima. The SAMs severely restrict Ayyad and Abouhalima’s communications. For instance, Ayyad and Abouhalima are only permitted to send correspondence to members of their immediate family, and receive only certain newspapers absent editorials and classifieds.

Ayyad and Abouhalima sued the Attorney General over the imposition of the SAMs. Originally proceeding pro se, Ayyad and Abouhalima obtained representation from the Student Law Office of the University of Denver. However, because of the SAMs, the law students were denied access to their clients. Under regulations promulgated by the Attorney General, only licensed attorneys and pre-cleared paralegals can meet with prisoners subject to SAMs.

On December 3, 2007, the law students moved for a preliminary injunction requesting access to Ayyad and Abouhalima. The government opposed the motion arguing that (1) Ayyad and Abouhalima failed to exhaust their administrative remedies; (2) because the students are not lawyers yet, they might be more susceptible to passing messages from Ayyad and Abouhalima to outside contacts and go unpunished; and (3) Laura Rovner and Daniel Manville, law professors supervising the law students, have access to Ayyad and Abouhalima instead.

The court began its analysis of Ayyab and Abouhalima’s motion with the exhaustion issue. According to the court, exhaustion of administrative remedies was not required because the motion did not deal with “prison conditions.” Rather, the imposition of the SAMs occurred “outside the prison gates.” The fact that the effect of the SAMs were felt in prison, the court stated, was “not sufficient ... to require exhaustion.” Further, the court noted exhaustion would be a waste of BOP’s resources since only the Attorney General has the authority to remove or amend the SAMs.

Turning to the merits of the motion, the court found that a preliminary injunction was warranted. First, the court found that Ayyad and Abouhalima were likely to succeed on their Due Process challenge to the denial of access to the law students. In reaching this conclusion, the court rejected the government’s assertion that the law students, unlike licensed attorneys or pre-cleared paralegals, were more likely to exchange messages on behalf of Ayyab and Abouhalima. Noting that the SAMs permitted paralegals to receive clearance, the court found “no logical distinction” between paralegals and law students. In fact, law students, the court explained, might have even more to lose than paralegals if they violated SAMs as they could be kicked out of law school, denied a law license, prosecuted, or be subjected to contempt of court proceedings. Thus, the court found that it was arbitrary and capricious to allow paralegals to visit Ayyab and Abouhalima, but not law students.

Finally, the court found that there were no alternative means of exercising Ayyab and Abouhalima’s Due Process rights. While the government had argued that the law professors supervising the law students could have access to Ayyab and Abouhalima, the court found that the structure of the Student Law Office did not permit this. Rather, by denying the law students access, the court held, the government was depriving Ayyab and Abouhalima of their right to counsel.

Accordingly, the court granted Ayyab and Abouhalima’s motion for a preliminary injunction and ordered the government to allow the law students access to their clients. See: Ayyad v. Gonzales, US DC , D CO, Case No. 05-CV-02342-WYD-MJW.

Additional Source: Denver Post

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Ayyad v. Gonzales


 

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