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.