Note: Stateside Guantanamo: Breaking the Silence

On December 11, 2006, the Department of Justice quietly began to execute the initial stages of a secret new program, the Communication Management Unit (CMU).[1]  At 7:00 A.M., seventeen federal prisoners from across the country were removed from their cells without warning or explanation.[2]  They were held in isolation for two days and then transferred to the Federal Correction Complex (FCC) in Terre Haute, Indiana.[3]  There, they were notified of their transfer to the CMU—a “completely self-contained unit” designed to severely limit a prisoner’s ability to communicate with the outside world.[4]

Unlike other prisons in the United States, the CMUs have been operating in relative secrecy.[5]  Official comment from the Bureau of Prisons states that the program is part of an ongoing effort to monitor the mail and other communications of “terrorist inmates” within the federal prison system.[6]  The government asserts that CMUs were designed to allow for a concentration of resources in an effort to “greatly enhance the agency’s capabilities for language translation, content analysis and intelligence sharing.”[7]

All forms of communication in the CMU are monitored and severely restricted.[8]  CMU inmates are subjected to twenty-four hour surveillance.[9]  Every word they utter is recorded and remotely monitored by a counter-terrorism team.[10]  Conversation among inmates must be conducted in English, unless otherwise negotiated.[11]  Restrictions on visiting time and phone calls are more severe than in most maximum security prisons.[12]  Although most of the prisoners are not considered high security risks, the units also impose a categorical ban on any physical contact with visitors, including family.[13]

Although the U.S. government contends that the units were created to house terrorist prisoners, many CMU detainees have never been convicted of terrorism related offenses.[14]  Take CMU inmate Sabri Benkahla, who was born in Virginia and graduated from George Mason University.[15]  While studying in Saudi Arabia, he was arrested and charged with aiding the Taliban.[16]  A Virginia court found him not guilty in 2004.[17]  Despite the acquittal, prosecutors forced him to testify before a grand jury, where he was accused and convicted of perjury.[18]  At Benkhali’s sentencing, the presiding judge declared that he was “not a terrorist” and that his chances of “ever committing another crime were ‘infinitesimal.’”[19]  Other CMU inmates include Enaam Arnaort, the founder of the Islamic charity Benevolence International Foundation, and Dr. Rafil Dhafir, a physician and the founder of the Iraqi charity Help the Needy.[20]  Like Benkahla, Dhafir and Arnaout were initially accused of terrorist-related crimes, yet were ultimately imprisoned for far lesser charges.[21]

The CMUs have come under fire from civil rights organizations which argue that the units represent “an unwarranted expansion on the war on terrorism.”[22]  The Federal Bureau of Prisons’ (BOP or “Bureau”) failure to establish meaningful criteria for inmate designation to a CMU coupled with the fact that the units house predominantly Muslim males indicates a strong presumption of racial profiling.[23]  Equally troubling is the secretive manner in which the CMUs were established.  The Administrative Procedures Act (APA) requires that prison regulations be promulgated under the law, yet the Bureau failed to notify the public of any changes to the prison program and did not afford the opportunity for opposition to comment prior to the creation of the CMUs.[24]  Critics have dubbed the facilities a “stateside Guantanamo.”[25]

This Note will argue that the U.S. government’s creation of the CMUs and the current policies under which the prison units operate violate established constitutional and statutory standards.  Part I details the post-9/11 climate from which the CMUs arose.  Part II attempts to expose the clandestine creation of the CMUs, while Part III argues that their establishment represented a marked change in federal policy which failed to comply with the APA.  Part IV maintains that the rules which govern the operation of the CMUs deny inmates due process guarantees of the Fifth Amendment.  Part V addresses the disproportionate percentage of Muslims housed in CMUs.  Finally, Part VI offers recommendations aimed at resolving the CMU regime’s current inadequacies.

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Luke Beata: J.D. Candidate, Syracuse University College of Law, 2012; B.A. International Relations and Economics, Boston University, 2002.



[1]. Katherine Hughes, Dr. Rafil A. Dhafir at Terre Haute Prison’s New Communications Management Unit, Wash. Rep. of Middle East Affairs, 12-13 (May-June 2007), available at http://www.wrmea.com/component/content/article/310-2007-may-june/9186-dr-rafil-a-dhafir-at-terre-haute-prisons-new-communications-management-unit-.html.

[2]. Id.; Nick Meyer, Local former U.S. Navy man locked in isolation unit “without explanation, The Arab Am. News (Jan. 15, 2011, 2:22 AM), http://www.arabamericannews.com/news/index.php?mod=article&cat=

Community&article=3823.

[3]. Hughes, supra note 1.

[4]. Id.

[5]. See id.; see also Basil Katz, Special U.S. prisons unconstitutional: lawsuit, Reuters (Mar. 30, 2010), http://www.reuters.com/article/2010/03/31/us-usa-prisons-rights-lawsuit-idUSN3014363320100331.

[6]. Communication Management Units, 75 Fed. Reg. 17,324, 17,324-26 (Apr. 6, 2010) (to be codified at 28 C.F.R. pt. 540).

[7]. Dan Eggen, Facility Holding Terrorist Inmates Limits Communication, Wash. Post, Feb. 25, 2007, at A7, available at http://www.washingtonpost.com/wp-dyn/content/article/2007/02/24/AR2007022401231.html.

[8]. See id.

[9]. Carrie Johnson & Margot Williams, Guantanamo North: Inside Secretive U.S. Prisons, Nat’l Pub. Radio (NPR) (Mar. 3, 2011), http://www.npr.org/2011/03/03/134168714/guantanamo-north-inside-u-s-secretive-prisons.

[10]. Id.

[11]. Eggen, supra note 7.

[12]. Johnson, supra note 9.

[13]. Hughes, supra note 1; Meyer, supra note 2.

[14]. Meyer, supra note 2.

[15]. Benkahla v. Federal Bureau of Prisons, et al., Am. Civ. Liberties Union (ACLU) (June 2, 2010), http://www.aclu.org/prisoners-rights/benkahla-v-federal-bureau-prisons-et-al.

[16]. Id.

[17]. Id.

[18]. Id.  Notably, the statements which he allegedly had misrepresented were related to the underlying offense of his earlier arrest of which he was acquitted.  Id.

[19]. Benkahla v. Federal Bureau of Prisons, et al., supra note 15.

[20]. Karen Friedemann, The CMU Black Hole, The Muslim Observer (Aug. 6, 2009), http://muslimmedianetwork.com/mmn/?p=4426.

[21]. Id.

[22]. Dean Kuipers, Isolation Prisons Under Fire, An ACLU Lawsuit will Challenge the Transfer of an Inmate to a Facility that Drastically Limits Outside Contact, L.A.Times (June 18, 2009), http://articles.latimes.com/2009/jun/18/nation/na-terror18.

[23]. Eggen, supra note 7.

[24]. Hughes, supra note 1; see also Katz, supra note 5.

[25]. Katz, supra note 5.

Article: The Speedy Trial Rrights of Military Detainees

In Washington, debate roils on about whether terrorism suspects should be tried by military commission, Article III courts, some combination of the two, or not at all.  The Obama administration’s highest profile decision to hold a civilian terrorism trial on American soil—that of Khalid Sheikh Mohammed (KSM) and his September 11 co-conspirators—was met with popular[1] and congressional[2] resistance and ultimately rescinded.[3]  Another Guantanamo detainee, Ahmed Ghailani, was transferred to the Southern District of New York, convicted of a single count of conspiracy to destroy government buildings and property, and sentenced to life in prison.[4]

United States v. Ghailani[5] tested the government’s ability under the Sixth Amendment Speedy Trial Clause and Fifth Amendment Due Process Clause to move military detainees to the civilian justice system after a delay of many years.  While the near-acquittal in Ghailani may freeze criminal trials of long-term military detainees for the foreseeable future,[6] eventually there will be further attempts to bring such prosecutions,[7] whether by President Obama or one of his successors.[8]  As the politicization of terrorism law and policy continues and perhaps even intensifies, more terrorism suspects may be moved between the military and civilian justice systems.  Just as the Bush administration focused its efforts on military commissions and the Obama administration on civilian trials, future Republican and Democratic presidents will be inclined to try terror suspects in their preferred venue.  As a result, there may be more cases like Ghailani in the future, with a defendant who has been transferred to the civilian justice system after spending years in military custody.

This Article examines the Sixth Amendment speedy trial rights[9] and related Fifth Amendment due process rights[10] of criminal defendants who were detained by the military as part of the War on Terror.  I argue that the government should prosecute detainees by either military commission or criminal trial where possible, with the venue depending on the nature of the case.  In criminal cases, the Speedy Trial Clause does not apply to periods of military detention absent unusual circumstances, and judicial scrutiny should occur primarily through the Due Process Clause of the Fifth Amendment.  While defendants carry a higher burden under the Due Process Clause, the determinative factors under both Fifth and Sixth Amendment analysis are the reason for the delay and the resulting prejudice to the defendant.

Part I of this Article examines the arguments for and against trying military detainees as a threshold question.  Part II discusses the nature of the Sixth Amendment Speedy Trial Clause and its interaction with the Fifth Amendment Due Process Clause.  Part III inspects the Barker v. Wingo[11] test for determining whether there has been a violation of Speedy Trial Clause and its application in Ghailani, United States v. Padilla,[12] and potential future detainee cases.  Finally, Part IV more broadly discusses the benefits and dangers of transferring terrorism suspects between the military and civilian justice systems and adjusting existing criminal law to meet the particular needs of terrorism.

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Walter E. Kuhn: Minority Chief Counsel, United States Senate Judiciary Committee, Subcommittee on the Constitution, Civil Rights and Human Rights.  J.D. Duke University School of Law, 2006; B.A, University of North Carolina at Chapel Hill, 2003.



[1]. See Lydia Saad, Americans at Odds With Recent Terror Trial Decisions, Gallup (Nov. 27, 2009), http://www.gallup.com/poll/124493/Americans-Odds-Recent-Terror-Trial-Decisions.aspx?CSTS=tagrss (discussing a poll showing that a majority of Americans believed that Khalid Sheikh Mohammed should be tried by military commission outside of New York City, and were “very concerned” or “somewhat concerned” that a trial would give KSM a forum to further his cause).

[2]. Eighteen senators introduced an amendment to deny the Department of Justice funding for the trials, but it failed to attract the sixty votes necessary in November 2009.  See Kasie Hunt, Senators try to block KSM trial, Politico (Feb. 2, 2010), http://www.politico.com/news/stories/0210/32382.html.  There was press speculation that if offered again, the legislation may receive enough votes for passage.  Michael Isikoff, No KSM in NYC?, The Daily Beast (Jan. 16, 2010), http://www.thedailybeast.com/newsweek/blogs/declassified/2010/01/15/no-ksm-in-nyc.html.

[3]. Anne E. Kornblut & Peter Finn, Obama advisers set to recommend military tribunals for alleged 9/11 plotters, Wash. Post, Mar. 5, 2010, at A01.

[4]. Benjamin Weiser, Ex-Detainee Gets Life Sentence in Embassy Blasts, N.Y. Times, Jan. 25, 2011, at A18.

[5]. See generally 751 F. Supp. 2d 515 (S.D.N.Y. 2010).

[6]. See Jack Goldsmith, The Ghailani Sentence, Lawfare (Jan. 25, 2011), http://www.lawfareblog.com/2011/01/the-ghailani-sentence/ (“I doubt the Ghailani verdict points the way for more civilian trials of GTMO detainees in the near future.  There don’t seem to be that many cases that the administration thinks it can win in civilian court.  But more importantly, this verdict won’t change congressional resistance to such trials, and the President is unlikely to expend political capital in a presidential election cycle to reverse this resistance.”).

[7]. Evidencing the administration’s intention to try detainees criminally in the future, Attorney General Eric Holder reiterated his general support for Article III terrorism trials after reversing his decision to try KSM and his co-conspirators in New York.  Attorney General Eric Holder, Address at the American Constitution Society Convention (June 16, 2011), available at http://www.justice.gov/iso/opa/ag/speeches/2011/ag-speech-1106161.html.  Further, the administration transferred Ahmed Abdulakir Warsame to New York for criminal trial after a short period of military detention following his capture in the Gulf of Aden.  Charlie Savage, U.S. Tests New Approach to Terrorism Cases on Somali Suspect, N.Y. Times, July 7, 2011, at A10.  Members of the Senate Judiciary Committee also sent Attorney General Holder a letter expressing concern about the potential criminal trial of Ali Mussa Daqduq, a detainee held in United States custody for years in Iraq.  Letter from Senators to AG Holder: Prosecute Senior Hezbollah Commander Before Military Tribunal (May 17, 2011) available at http://hatch.senate.gov/public/index.cfm/releases?ContentRecord_id=ae4e97ed-80ba-4f22-9d8c-c3f381440208.

[8]. In the short-term, the 2011 National Defense Authorization Act prohibited the use of fiscal year 2011 Department of Defense funds to transfer Guantanamo detainees to the United States, despite protest from President Obama and Attorney General Eric Holder.  Ike Skelton National Defense Authorization Act for Fiscal Year 2011, Pub. L. No. 111-383, § 1032, 124 Stat. 4137, 4351 (2010); Press Release, President Barack Obama, Office of the Press Secretary, Statement by the President on H.R. 6523 (Jan. 7, 2011), available at http://www.whitehouse.gov/the-press-office/2011/01/07/statement-president-hr-6523 (“Section 1032 [barring the use of funds to transfer detainees into the United States] represents a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantanamo detainees.”); see also Peter Landers, Congress Bars Gitmo Transfers, Wall Street J., Dec. 23, 2010, at A2.

[9]. U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.”).

[10]. U.S. Const. amend. V (“No person shall . . . be deprived of life, liberty, or property, without due process of law.”).

[11]. 407 U.S. 514, 530-33 (1972).

[12]. No. 04-60001-CR-COOKE (S.D. Fla. Apr. 3, 2007) (denying motion to dismiss indictment for speedy trial violations in derogation of Sixth Amendment rights).

Article: Federalism, Harm, and the Politics of Legal Garcia v. Texas

Humberto Leal Garcia savagely raped and murdered sixteen-year-old Adria Sauceda in San Antonio in the spring of 1994.[1]  A Texas jury sentenced him to death.[2]  On these facts alone, his case appears indistinguishable from the dozens of Texas capital cases that regularly receive federal court review, capable of spurring the occasional, predictable complaints about Texas justice and compelling the indignation of the capital defense bar and abolitionist community, but otherwise not especially noteworthy legally or politically.  Yet, Texas law enforcement officials investigating the murder did not allow Leal, a Mexican national who had resided in the United States since the age of two, access to the Mexican consulate pursuant to the Vienna Convention on Consular Relations.[3]  So when Leal sought a stay of his Texas execution from the United States Supreme Court in the summer of 2011, he created more than just a legal question for the Court’s resolution.  His case ignited a storm of controversy at multiple levels of politics—constitutional, international, and electoral.

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J. Richard Broughton: Assistant Professor of Law, University of Detroit Mercy.  In the interests of disclosure, I note that I am a former Assistant Attorney General of Texas, and my former office handled the federal court litigation on behalf of Texas against Leal.  I left the office in 2003 and did not participate in that litigation.  I then served as a lawyer in the Capital Case Unit at the United States Department of Justice, but left the DOJ in 2008 and played no role in the Leal litigation there, either.  I will refer herein to the Medellin litigation, in which I had only a very minor role while at DOJ, and, in any event, my discussion here contains only public information about that case.  I am grateful to Stacy Johnson for her excellent research assistance on this project.



[1]. Garcia v. Texas, 131 S. Ct. 2866, 2867 (2011) (per curiam).  Confusingly, the current Supreme Court Reporter’s caption refers to the petitioner as “Garcia.”  In its opinion, however, the Court refers to him as “Leal,” which is the proper reference and the one employed by the lower courts.  For accuracy here, I will cite to the Supreme Court’s opinion as “Garcia v. Texas,” but will refer to the petitioner personally as “Leal.”

[2]. Id.

[3]. Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820; Garcia, 131 S. Ct. at 2867.