“As of October 1, 2011, the ... [BOP] reported that it was holding 362 people convicted in terrorism-related cases, 269 with what the bureau calls a connection to international terrorism, up from just 50 in 2000. An additional 93 inmates have a connection to domestic terrorism,” the Times stated. The Times also noted that many of those prisoners were prosecuted as part of the government’s “zero-tolerance” approach to any conduct remotely related to terrorism. The BOP, for its part, has set up two special Communication Management Units (CMUs) to house such prisoners, who are disproportionately black and Muslim.
At a time when many legal experts of both conservative and liberal persuasions are calling for an end to the draconian federal sentencing guidelines and decrying the rising federal prison population, the U.S. government is unrelenting in seeking maximum penalties for defendants with ties to terrorism, no matter how attenuated they may be.
The 9/11 terrorist attacks galvanized federal and state law enforcement into declaring a “War on Terror,” and sparked a reorganization of various independent agencies such as the Border Patrol and Immigration and Customs Enforcement into the Department of Homeland Security. Thousands of new federal officers now patrol the border and detain and deport hundreds of thousands of undocumented immigrants every year, while dozens of “fusion centers” have been formed nationwide to collect information about national security risks. [See: PLN, Aug. 2012, p.32]. The social and financial costs of these measures have been well-publicized and are the subject of rigorous debate.
However, the BOP, in full stealth mode, has largely evaded this level of public scrutiny. Those familiar with the operational style of federal prison officials are not surprised by this lack of transparency; the BOP rarely grants interviews, provides little background information related to its activities and discloses details concerning its funding and staffing only to Congress, which is responsible for approving the BOP’s budget. Attempts to obtain information through Freedom of Information Act requests are routinely frustrated, forcing the media and concerned citizens to file federal lawsuits to compel compliance with public disclosure requirements.
As best as can be determined by the limited public information available, most of the approximately 170 prisoners confined at Guantanamo Bay are foreign nationals apprehended by American forces in various military operations in Africa, Afghanistan and Pakistan. Of those, 87 have been cleared for release by the government but remain incarcerated.
Federal officials have argued for years about whether or not military tribunals are the most appropriate way to deal with suspected terrorists detained at Guantanamo, and the Supreme Court has weighed in on the issue with rulings in Hamdan v. Rumsfeld, 548 U.S. 557 (2006) and Boumediene v. Bush, 553 U.S. 723 (2008). [See: PLN, Dec. 2008, p.20; Sept. 2006, p.27]. One fact that is not in dispute is the huge annual cost to house each prisoner at Guantanamo, which is around $800,000. By comparison, the average cost of confining prisoners in a BOP supermax facility is approximately $92,000 per year.
Compared to the relatively faceless, anonymous detainees held at Guantanamo, the BOP houses some of the most notorious foreign and domestic terrorists. Richard Reid, the shoe bomber; Terry Nichols, who was convicted along with Timothy McVeigh in the bombing of the Oklahoma City federal building; Ahmed Ressam, the “millennium bomber”; John Walker Lindh, the “American Taliban”; and Eric Rudolph, convicted of bombing abortion clinics and the 1996 Atlanta Summer Olympics, are all held at the BOP’s supermax prison in Florence, Colorado, as are al-Qaeda members Zacarias Moussaoui and Times Square bomber Faisal Shahzad.
Prisoners confined at the BOP supermax are limited in their ability to communicate with the outside world, barred from using email and restricted to highly-monitored phone calls.
Outside exercise is limited to two hours in what amounts to a large cage with little to no contact with other prisoners. Human rights activists have condemned such conditions of confinement as “inhuman” and unworthy of a democratic form of government. There has been little outcry from the public, though, which apparently is not troubled by such restrictive conditions.
The CMUs are a more recent example of the BOP’s development of sophisticated ways to confine prisoners considered by the government to be dangerous or troublesome. They are a perfect illustration of what happens when governmental agencies are free to make their own rules with little or no oversight from Congress, the courts or the public. The CMUs are designed to be monuments to the federal government’s power to prosecute, convict and confine individuals who sometimes have only a tangential connection to terrorism.
While there is legitimate concern as to the dangerousness of some accused international terrorists, many of the American-born or naturalized U.S. citizens in BOP custody serving long sentences for “domestic terrorism” do not present as clear a threat.
Due to the questionable dangerousness of such prisoners, a group of researchers sought and won approval from the Department of Homeland Security in 2009 to study the issue, but was denied access to the prisoners by BOP officials. Professor Gary LaFree, director of a national terrorism study center at the University of Maryland, said, “There’s a huge national debate about how dangerous these people are. I just think, as a citizen, somebody ought to be studying this.”
One issue that is already well known is that people convicted of terrorism-related charges receive lengthy sentences. According to a September 2011 report from the Center on Law and Security, of the 204 people charged with what the Center calls serious jihadist crimes since the 9/11 attacks, 87 percent were convicted (lower than the average DOJ conviction rate, which is in the 90 percent range) and they received an average sentence of 14 years (compared to the overall average federal sentence of approximately 6 years).
The federal government’s decision to seek harsh sentences in such cases is reminiscent of the original rationale for the federal sentencing guidelines that grew out of the “War on Drugs.” The clear purpose of draconian sentences for drug offenses was to incarcerate drug dealers for long periods of time to cripple the drug trade. Yet despite the flood of drug offenders entering the federal prison system, most experts agree that use of illegal drugs in the U.S. has remained fairly consistent.
Scholarly studies such as those by Professor William J. Stuntz of Harvard University, author of “The Collapse of American Criminal Justice,” have shown there is little to no connection between soaring incarceration rates and reductions in crime. Current downward trends in crime rates appear to indicate that increased and targeted policing has a much greater impact than sending more people to prison. Regardless, with respect to terrorism cases, federal prosecutors have demonstrated they are willing to go to extremes to obtain convictions despite widespread criticism of their methods.
In one case originating in Virginia, according to the Times, “prosecutors used the Neutrality Act, a little-used law dating to 1794 that prohibits Americans from fighting against a nation at peace with the United States. Prosecutors combined that law with weapons statutes that impose a mandatory minimum sentence in a strategy to get the longest prison terms ... said Paul J. McNulty, the United States attorney overseeing the case. ‘We were doing all we could to prevent the next attack,’” he stated.
That case involved 11 defendants charged with participating in a conspiracy to aid and abet terrorism. Their crimes? Playing paintball and firing legally-owned firearms in a rural area, which was described as “paramilitary training” by prosecutors. Several of the defendants had also attended a training camp in Pakistan (a U.S. ally). Although belonging to a group that opposes India, which has long had an adversarial relationship with Pakistan, they committed no attacks or violence in the United States or elsewhere.
Three of the defendants, Masoud Khan, Seifullah Chapman and Hammad Abdur-Raheem, all American citizens, went to trial; they were convicted and sentenced to prison terms of life, 85 years and 97 years, respectively.
“It was a deterrence strategy and show of strength,” said Karen J. Greenberg, a law professor at Fordham University. “The attitude of the government was: Every step you take toward terrorism, no matter how small, will be punished severely.” Of course, one questions whether such enthusiastic prosecutions would have deterred the 9/11 attackers, whose mission was to ram planes into buildings and die in the process.
In another case, Dr. Rafil A. Dhafir, a U.S. citizen, was prosecuted for sending millions of dollars to Iraq through a charity he founded despite U.S.-imposed economic sanctions on that country. He was convicted of fraud, money laundering, tax evasion and conspiracy charges, and sentenced in 2005 to 22 years in federal prison. He was not charged with promoting violence, though prosecutors accused him of terrorism-related conduct during sentencing. Dhafir was resentenced in February 22, 2012 after his case was remanded by the Second Circuit Court of Appeals, but still received 22 years. Initially confined in a CMU, he was released to the general prison population shortly before resentencing.
More than 300 prisoners have been prosecuted and convicted of domestic terrorist acts since 2001, completed their sentences and then been quietly released. Most were not accused of violent offenses but rather of “’material support’ for a terrorist group; financial or document fraud; weapons violations; and a range of other crimes,” according to the Times. Foreign nationals released from BOP custody after finishing their sentences were deported, but U.S. citizens returned to their homes and families. The recidivism rates for the latter group are well below that of the average federal prisoner, which tends to indicate that domestic “terrorists” are not the threat they are portrayed as being by federal prosecutors.
Faced with a lack of cooperation by the BOP and the reluctance of many released prisoners – most of whom are still on supervised release – to speak with the news media, the Times interviewed several prisoners currently serving time for terrorism-related offenses. One, Randall Todd Royer, now known as Ismail Royer, is a 38-year-old Missourian who converted to Islam.
Royer was active in the Council on American-Islamic Relations and the Muslim American Society, often traveled to Washington, D.C., and visited the White House. He is now serving a 20-year federal prison sentence after pleading guilty to “helping several American friends go to a training camp for Lashka-e-Taiba, an extremist group fighting Indian rule in Kashmir.... He trained at [the same] camp himself ... in 2001, he was stopped by Virginia police with an AK-47 and ammunition in his car.” He denied ever planning to kill Americans. He was one of the 11 defendants in the Virginia case described above who trained with paintball guns and legal firearms, and committed no violent acts.
Royer received the statutory minimum sentence of 20 years, was divorced by his wife and is only able to have non-contact visits with his young children. After a stint at a CMU, he was transferred to the BOP’s Florence supermax facility.
One analyst, Chris Heffelfinger, author of “Radical Islam in America,” concluded that Royer’s prosecution was justified but that he received probably double the punishment that the crime deserved. “I think a strong law enforcement response to cases like this is appropriate nine times out of 10,” he said.
Another alleged domestic terrorist, Daniel McGowan, was placed in the CMU after receiving a 7-year federal prison sentence; he pleaded guilty in 2006 to arson-related charges in connection with fires set by environmental activists at a lumber company and tree farm research center. There were no injuries. Prosecutors pursued a terrorism enhancement at his sentencing, claiming McGowan’s offenses “either involved or were intended to promote a federal crime of terrorism.” Other prisoners held in CMUs have included animal rights activists.
“Many of the men here (both Muslim and non) are considered political prisoners in their respective movements and have been engaged in social justice, religious organizations, charities and humanitarian efforts,” McGowan wrote. “Another conception of the CMU is that it is a location designed to isolate us from our movements and to act as a deterrent for others from those movements (as in ‘step outside the line and you too will end up there’).”
In response to the high number of prisoners convicted of terrorism-related offenses, the BOP set up CMUs in the federal prison complexes at Terre Haute, Indiana in 2006 (in the former death row unit) and at Marion, Illinois in 2008. Derisively described by Muslim activists as MMUs, or “Muslim Management Units” because over two-thirds of the prisoners held in such units are reportedly Muslims, the CMUs house up to 80 prisoners, permit no physical contact with visitors, and have closely-monitored and limited access to the BOP’s phone and email systems. Incoming and outgoing mail is read and scanned
The Center for Constitutional Rights filed a lawsuit in March 2010 on behalf of five CMU prisoners and two of their spouses, challenging conditions in the CMUs; the suit remains pending on the plaintiffs’ procedural due process and retaliation claims. See: Aref v. Holder, U.S.D.C. (D. D.C.), Case No. 1:10-cv-00539-RWR-DAR. On October 7, 2011, twelve members of Congress sent a joint letter to the BOP, questioning policies and practices in the CMUs. More recently, a group of prisoners in the CMU at Marion went on a hunger strike in April 2012 to protest human rights violations by prison officials and interference with the religious rights of Muslim prisoners.
One question that remains unanswered is whether or not the government’s approach of prosecuting “terrorism” offenses that only marginally involve actual terrorism, and imposing lengthy sentences and harsh CMU confinement on domestic “terrorists,” will protect the U.S. from future attacks. Assuming, of course, that that is in fact the government’s goal.
Sources: New York Times, www.findlaw.com, www.ccrjustice.org, www.democracynow.org, www.cnycentral.com, www.truth-out.org, www.thinkprogress.org, www.aclu.org, Washington Post, www.supportdaniel.org, www.prisonabolitionist.org
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Related legal case
Aref v. Holder
|Cite||U.S.D.C. (D. D.C.), Case No. 1:10-cv-00539-RWR-DAR|