Unlawful Detention on US Soil

Alia Malek | December 22, 2011
When his wfie and children arrived to visit Shukri Abu-Baker at the secretive federal prison known as a Communications Management Unit (CMU) in Terre Haute, Indiana, this past fall, they were forced to sit in silence and stare at him through Plexiglass. The twin phones on either side of the partition wouldn’t work. They raised their voices to be able to hear each other, but the guards immediately told them to stop. Their communications, after all, had to be recorded and monitored live by someone in Washington, DC.

The Abu-Bakers had scheduled their visit over a month in advance. The Federal Board of Prisons (BOP) knew they were coming. The family made the fifteen-hour trip from Dallas to Terre Haute in a rented van, spending a total of $2,000 so they could spend eight hours that weekend seeing and talking to Shukri.

The prison officials told the family to go to the hotel and wait so that they could fix the phones. They never called them. When the family returned a month later to spend Eid at the prison, the same thing happened.

Shukri Abu-Baker was among those convicted in 2009 of providing material support to terrorism because he helped found the Holy Land Foundation, a charity that the US government says is affiliated with Hamas. (The convictions were recently upheld.) He has been imprisoned at the CMU since April 2010. As The Nation reported this spring [See “Gitmo in the Heartland 1,” March 28, 2011], the primary purpose of these units—the only other facility of its kind is in Marion, Illinois—is to closely monitor the communications of its inmates. The restrictions are much more severe than those on prisoners at the federal supermax prison in Florence, Colorado, with far fewer visitation hours or phone calls. Visits are restricted to family and attorneys, and there is an absolute ban on physical contact, even with their wives and children.

Prisoners at the CMU have no real idea as to why they’re there. Shukri, for instance, has no history of communications infractions. He spent the first year and a half of his sixty-five-year sentence without incident at the low-security Federal Correctional Institute in Seagoville, Texas. But like most CMU inmates, he is Arab and Muslim American.

A lack of transparency has been a trademark of the CMUs since they first began operating under the Bush administration. It continues under Obama. The BOP has been operating the Marion CMU since 2008 and the one in Terre Haute since 2006, despite its never having met the protocols dictated by the Administrative Procedures Act (APA), which requires federal agencies to publish proposed new rules and regulations and provide a period of public comment before starting operations. Although the Bush administration published its proposed rule for “Limited Communication for Terrorist Inmates” in August 2006—prompting a wave of criticism—the BOP never published the final rule before moving forward. Word that the Terre Haute CMU was up and running spread only when transferred prisoners leaked information of their whereabouts to family and attorneys.

In March 2010, the Center for Constitutional Rights 2 (CCR) sued the BOP, alleging both violations of the Constitution and the APA. In response, the Obama administration republished an expanded version of the rule, took comments via mail and e-mail and indicated that it would publish the finalized rule in October 2011. Assuming the Obama administration was operating in good faith by complying with the APA (albeit ex post facto), the court dismissed the APA claims in CCR’s lawsuit without prejudice. A letter to the BOP from eleven members of Congress—raising questions that advocates and families had been asking for years—also presumed a finalized rule would be published in October.

But October came and went and, to date, no finalized rule has been published. When contacted by The Nation, the BOP responded, “All [dates] are simply estimates. When the new Unified Regulatory Agenda is published there will be another date indicated within it and again it will be just an estimate.” The BOP added that while it does “respond to all Congressional inquiries,” it declined to say when it will respond to the Congressional letter.

Civil liberties advocates suggest that this is just another delaying tactic. CCR is currently considering whether to refile the APA claims. “The BOP has long refused to comply with the APA with respect to CMUs,” says David Shapiro, an attorney at the ACLU’s National Prison Project 3, which helped bring litigation on behalf of a CMU prisoner before he was transferred from the facility.

“BOP created these units behind closed doors in the first place. The fact that another APA deadline has come and gone despite litigation on this very issue, and even as CMUs continue to operate without a proper regulation, is further evidence of the government’s flouting the law with respect to these units,” he says.

As for the Abu-Baker family, they are not sure when they will see their father again.

“The past two visits in one month really hit us hard,” Zaira, the eldest daughter, says. “Financially, physically, mentally and emotionally.”