July 21, 2014

VI. Imprisonment and Treatment

US prisons held 475 people indicted on or convicted of terrorism or terrorism-related offenses as of October 2013, according to the government response to our FOIA request.[584] Some are held in prisons under harsh conditions that include prolonged solitary confinement and severe restrictions on their communication with family and others.

Some restrictions are imposed pursuant to Special Administrative Measures (SAMs), which apply to certain prisoners—not only terrorism detainees—on the grounds that they are necessary to protect national security or prevent disclosure of classified material (as previously noted, these conditions may also be imposed pretrial, raising concerns over fair trial rights). Other prisoners were placed in Communication Management Units (CMUs), which monitor prisoners 24 hours a day.

We reviewed the treatment and conditions of 35 defendants and prisoners in terrorism cases, 9 of whom were not involved in the main cases we focused on for this report (for a list, see Appendix - B). While the Bureau of Prisons denied 16 out of 20 requests we made to meet with prisoners, we were able to communicate with 12 incarcerated men by phone, letters, or email.

In several of these cases, the Bureau of Prisons did not inform the detainee of the basis for imposing the restrictions—whether it was based on an assessment of the severity of the crime, the security of the facility or of the detainee, or for other reasons. Accordingly, it was impossible to independently assess whether the restrictions were disproportionate to the government’s objective. In many cases, this secrecy also stymied prisoners’ ability to learn about the basis for their treatment, or what steps they could take to end their solitary confinement or restrictions on their communications with family.

Background: Tightening of Restrictions in Response to “Prisoner Radicalization”

In the years after the September 11, 2001 attacks, media and congressional concern over supposed “prisoner radicalization”—the idea that prisons are a “fertile ground” for inmate conversion to politicized and violent ideology related to Islam[585]—led the Bureau of Prisons to impose significantly harsher restrictions on terrorism detainees and prisoners.[586]

In 2006, seeking to monitor “100 percent” of all terrorism inmate communications,[587] the Bureau of Prisons began adopting policies and practices to restrict the “volume, frequency, and methods” of terrorism inmate communications,[588] and it began to extensively monitor prisoner communication with family and attorneys, and prohibit contact visits with families (discussed below).[589]

The Bureau of Prisons also made plans to “consolidate all international terrorist inmates in approximately six institutions for enhanced management and monitoring.”[590] We are only aware of three special units—two Communication Management Units (CMUs) and a unit at the Florence supermaximum security prison (“ADX Florence”).[591]

Prolonged Solitary Confinement and Restrictions on Family Contact

As Human Rights Watch has previously documented,[592] jails and prisons across the United States often respond to prison or inmate management challenges by segregating individuals from the general population, often through prolonged physical and social isolation, for hours, days, weeks, or even years. Isolation for 22 hours per day or more, and for one or more days, fits the generally accepted definition of solitary confinement.[593] When it is prolonged, solitary confinement can constitute cruel, inhuman or degrading treatment prohibited by human rights treaties to which the US is party.[594] For 23 men whose experiences we documented, the length of pretrial or post-conviction solitary confinement was measured in months or years, not weeks.[595] The mental pain and suffering caused by isolation was sometimes exacerbated by uncertainty about how long solitary would last.[596]

Prisoners with whom we spoke or corresponded described their solitary confinement as resulting from decisions to put them in administrative segregation based on their security classification. Prisoners in medium-security and low-security prisons experienced solitary as punishment (often called disciplinary segregation).[597]

Special Units for “Terrorism” Prisoners: ADX and CMUs

The Bureau of Prisons says it places the “most dangerous terrorists” at the Administrative Maximum Penitentiary (ADX) in Florence, Colorado, while other so-called “terrorist” inmates have been transferred to Communication Management Units “to consolidate them” and “increase the monitoring and management of these inmates.”[598] According to our review of DOJ data, more than a quarter of prisoners convicted of terrorism or terrorism-related offenses were held in these facilities as of July 2013.[599]

ADX Florence

The Bureau of Prisons held 41 prisoners it designated as “terrorists” at ADX Florence, the federal supermax where nearly all prisoners are held in at least 23-hour solitary confinement, as of October 2013.[600] One of the prison’s former wardens has described ADX as a “clean version of hell.”[601]

For two days a week, a typical ADX prisoner spends the entire day secluded to his single cell, which measures between 75 and 87 square feet, depending on the unit.[602] He is deprived of almost all human contact during these periods, except for perfunctory, impersonal exchange with correctional staff.[603] On the other days, the prisoner remains confined this way for 22 or 23 hours a day, but is given an hour of indoor recreation, alone in a room completely bare but for a pull-up bar; or an hour of outdoor recreation, in a cement enclosure so small that he is only able to take a few steps in each direction.[604] Every time he leaves his cell for recreation, he is strip-searched.[605] For most prisoners at ADX Florence, communication with other inmates is never directly face-to-face and is always mediated by bars or concrete walls—or involves shouting through toilets and vents.[606]

Dritan Duka, who is held in solitary confinement at ADX Florence,[607] described even recreation time as dehumanizing:

You can only see the sky. It’s all steel. You feel like an animal in a cage. When it’s time to eat, they feed you... Actually [dogs] have more freedom than we do. ... We’re in a cage all day, they shove foods in the cell. Then we got a little walk. Then they put us in another cell. I'd rather be in a zoo than over here. People walking by, looking at you like an animal in a caged exhibition.[608]

Dritan said he is able to communicate with other prisoners on his “range” (prison floor and section) by screaming through doors and, during outdoor recreation, talking to prisoners who are in separate cages.[609] These brief periods of communication were insignificant compared to his overall experience of isolation: “There’s a lot of times the walls are caving in. It’s—you can't talk to nobody… It's like staying alone in a bathroom for three days.”[610]

Human Rights Watch has previously reported on conditions at ADX Florence, which houses not only terrorism detainees but also leaders of violent gangs and prisoners with a history of committing violent offenses against other prisoners or corrections officers. We noted in 2001 that inmates there could be subjected to “years of confinement in conditions of extreme social isolation, reduced sensory stimulation, and rigorous security control.”[611] After a 2007 visit to ADX Florence, Human Rights Watch wrote to the Bureau of Prisons to express concern about serious problems, including the mental health impact of long-term isolation and highly limited exercise there, and reports of force feeding inmates on hunger strikes.[612]

While we have not, for this report, conducted a thorough examination of conditions at ADX Florence, the cases we examined continue to raise human rights concerns because of the degree of isolation for prisoners and the inadequate process for securing transfer out of the prison into a less restrictive facility.

Communication Management Units

Another 77 post-conviction prisoners designated as “international terrorists” or “domestic terrorists” are in two Communication Management Units (CMUs).[613] The Bureau of Prisons describes the CMUs as units for prisoners who do “not need the security requirements at [ADX] Florence” but nevertheless require “closer monitoring.”[614] Of the first 54 prisoners transferred to the CMUs, 39 were Muslim.[615] Civil liberties groups and activists allege that the Bureau of Prisons subsequently transferred environmental and political activists convicted of terrorist offenses to the CMUs in response to media criticism that it was targeting Muslims.[616]

“Other than ADX, the CMUs are the most restrictive facilities in the federal system,” a federal appeals court judge wrote in 2010.[617] The CMUs are similar to medium-security units in terms of permitting inmates to interact extensively with each other outside of their cells. However, inmates are constantly surveilled and their communication with the outside world is heavily restricted (including with their families, as described below). There are cameras and listening devices positioned throughout the CMUs, and all inmate conversations are audio-recorded and monitored by the government (except for inmate conversations with their attorneys).[618]

Prisoners and defense lawyers described poor prison conditions at both the Terre Haute and Marion CMUs.[619] At the Terre Haute CMU, they described extreme cold during the winter, insects and rodents, flooding during rainstorms, and extreme heat during the summer with fans so loud that “they gave us earplugs to put in our ears, to keep from damaging our hearing,” a former inmate told us.[620] One defendant described it as “dangerously and poorly ventilated,” explaining that windows on either side of the building were “bricked in from the outside,” making the building “like an oven” in summer.[621]

The recreation area at the Marion CMU is “all kennels on concrete,” environmental activist Andy Stepanian, who was among the first inmates at the facility, told us. In the recreation area, “the ceiling was a chain-link fence and dome of razor wire. So there was open sky but there was razor wire and dead birds between you.”[622]

Several prisoners and their families reported problems accessing medical treatment at the CMU, particularly on weekends and holidays.[623] The CMU functions like “a bubble,” as one defense lawyer explained: prisoners could move freely within the unit, but any movement outside of it was highly constrained, leading to delays in medical attention.[624] Inmates also have few opportunities for work and education in comparison to other federal inmates in medium- or low-security prisons.[625]

Several CMU inmates and defense lawyers also described harassment, intimidation and retaliation by CMU prison guards against Muslim inmates.[626] While a significant majority of the CMU inmates are Muslim, inmates described few accommodations made for Islamic religious practice in comparison with other religions.[627]

Current and former inmates reported arbitrary denials and delays in their ability to send and receive correspondence, including legal mail. Mail is monitored by the Bureau of Prisons’ Counterterrorism Unit.[628] Eljvir Duka, who is currently held at Marion CMU, said he has continuously been denied receipt of materials his attorney sent him: audio recordings of conversations the informants in his case taped for the FBI, which were provided through the discovery process of his trial.[629] Though they are vital to his ability to prepare for his habeas corpus petition, the CMU returned the material to his attorney without allowing him access.[630]

Special Administrative Measures

In about three dozen terrorism cases,[631] the government has used Special Administrative Measures (SAMs): restrictions imposed to protect national security or prevent disclosure of classified material. SAMs ordinarily prohibit defendants, attorneys and their families from communicating about the SAMs to each other—or anyone else.

This “gag order” of sorts limited our ability to document the impact of SAMs, because family members and defense lawyers were concerned that by speaking with us or providing certain details, they might inadvertently violate SAMs. Bars on communicating with journalists, which are often imposed through SAMs, have also resulted in an information void about the government’s practices.[632] We nevertheless documented, in limited form, the experiences of six prisoners currently or formerly under SAMs. We also reviewed, in redacted form, the SAMs modification and extension orders for between 20 and 22 prisoners, which the Department of Justice provided in response to our FOIA.[633]

Two regulations authorize SAMs: the National Security rule and the Prevention of Acts of Violence and Terrorism (“Terrorism”) rule.[634] Both rules provide that SAMs “ordinarily may include housing the inmate in administrative detention” and may limit, among other privileges, “correspondence, visiting, interviews with representatives of the news media, and use of the telephone.”[635] In addition, the Terrorism rule permits the attorney general to order monitoring of attorney-client communication.[636] After 9/11, the SAMs regulations broadened to apply not just to post-conviction inmates, but also defendants detained pretrial, witnesses, and immigration violators.[637]

Figure 1 – Prisoners under SAMs[638]

The number of inmates under SAMs has grown since regulations were substantially broadened the month after 9/11. In November 2001, there were only 16 individuals under SAMs—“a very small group of the most dangerous inmates,” according to then-Assistant Attorney General Michael Chertoff.[639] Since 2009 the number of prisoners under SAMs termed “terrorism-related inmates” has held steady at about 30.[640] The increase may partly owe to a 2006 recommendation from the Department of Justice Office of Inspector General to consider the application of SAMs for each “pretrial or convicted inmate associated with terrorism.”[641]

Our review of the known cases suggests that typically these individuals were accused of having some link with Al‑Qaeda or Al‑Qaeda-affiliated individuals, although these accusations were not necessarily established at trial or an essential part of the conduct underlying conviction. None of the SAMs cases we reviewed involved the use of informants, where there was limited or no actual communication between the defendant and the alleged terrorist organizations.

Severe Restrictions Imposed Through SAMs

SAMs often require the imposition of extreme physical and social isolation. In the orders we obtained through a FOIA regarding 20 to 22 prisoners, SAMs banned at least 20 prisoners from “making statements audible to other prisoners or sending notes” and required them to be housed in single cells “separated as much as possible in cellblock area from other inmates.”[642]

As we described, Oussama Kassir spent one and a half years in pretrial isolation because under SAMs he was barred from talking with other inmates or correctional staff.[643] He was permitted “virtually no recreation or exercise, and [was] never allowed to be outside or enjoy natural light or air.”[644] He was also barred from purchasing food at the prison commissary to supplement his limited meals, a restriction with little evident connection to national security.[645] (SAMs orders we reviewed typically barred prisoners from access to “any material/objects that could be converted to dangerous objects”).

SAMs can also heighten social isolation by blocking prisoners from receiving information about the outside world, including through widely available books.[646] Prison officials initially denied Ahmed Omar Abu Ali access to President Obama’s two memoirs, Dreams from My Father and the The Audacity of Hope.[647] SAMs prisoners can communicate with their immediate family members, but subject to restrictions that have no evident and direct connection to the security risk they pose: letters are limited to “3 pieces of paper, double-sided, once per week, single recipient”; family visits require 14 days’ notice and can include only one adult at a time.[648]

The Department of Justice, in reply to our letter, wrote that all decisions to house prisoners in “single-cell status” were made on a “case-by-case basis,” and that SAMs are not intended to “routinely include complete curtailment of privileges.”[649] The SAMs orders we obtained through FOIA do reflect that prisoners sometimes obtained modifications regarding family visits. Yet the SAMs restrictions we reviewed uniformly barred communication with other prisoners, raising the concern that these restrictions were not individualized or narrowly tailored to each defendant, at least initially.[650]

ADX “H Unit” Conditions for Post-Conviction SAMs Prisoners

According to the Bureau of Prisons, 37 individuals under SAMs are held at ADX Florence.[651] We reviewed the SAMs restrictions of 18 of these prisoners about whom the government provided documentation.

All SAMs prisoners at ADX are housed in the Special Security Unit, also known as “H Unit.”[652]Prisoners there are held in 22- to 24-hour solitary confinement, receiving a minimum of five hours of out-of-cell recreation a week (half that of ADX General Population inmates).[653] They live in cells that measure 75.5 square feet, so small that prisoners reportedly eat their meals within an arm’s length from their toilet.[654] During recreation, inmates pace alone in an outdoor cage, or an indoor room slightly bigger than their cell, and are barred from speaking with other inmates.

Compounding the isolation of solitary confinement are the SAMs bars on communication with the outside world, through letters and phone calls. “For the most part conditions are like those in other solitary units,” Uzair Paracha, who was held at ADX Florence from 2003 to 2009, wrote. [655] “[B]ut every inmate there is subjected to the SAMs, cutting prisoners off from the outside world.” [656] Paracha described “non-stop hunger strikes” at the H Unit since 2002, when it was created, causing “many illnesses” and “psychological issues” for prisoners there. [657]

SAMs and the Attorney-Client Relationship

SAMs permit the government to monitor any and all attorney-client communications—without first seeking court approval—if federal law enforcement agencies have a reasonable suspicion that a defendant may use the attorney-client communication to “further or facilitate acts of terrorism.” [658] Monitoring is permitted “to the extent determined to be reasonably necessary for the purpose of deterring future acts of violence or terrorism.” [659] A “privilege team” monitors communication but cannot disclose any information unless it gets court approval. [660] It also cannot retain any communications that are found to be privileged. [661] According to the Bureau of Prisons, as of November 2013 the government was monitoring the attorney-client communications of one prisoner in its custody. [662]

Full confidentiality of communications between lawyers and prisoners is a key aspect of the right to counsel under international human rights law. [663] In practice, “surveillance cannot but have a chilling effect on the attorney-client relationship,” a lawyer who has worked with a SAMs defendants notes. [664] “The client sharing information with his attorney has nothing but the promise from the very government prosecuting him that such statements will not be used against him.” [665]

In three cases we reviewed, attorneys complained that SAMs undermined their ability to prepare for trial, in particular, due to delays they encountered when trying to communicate with their clients and get information from them. [666] Jay Carney, attorney for Tarek Mehanna, told us that Mehanna’s facility repeatedly rejected attorney-client emails he sent to Mehanna and, in one instance, seized as “contraband” evidence that was from the trial (see section III). [667] SAMs also impose restrictions on attorneys themselves, leading to delays in attorneys’ communication with potential witnesses, defense experts, investigators, paralegals, and interpreters. [668]

Restrictions on Family Contact

Many prisoners who were convicted of terrorism or terrorism-related offenses are denied any physical contact during visits with their families, meaning they are only permitted to see each other through glass or by video monitor, and speak through a telephone receiver. These include all inmates under SAMs[669]; all inmates at the CMUs[670]; all inmates at ADX Florence[671]; and some inmates held in pretrial facilities or other facilities post-conviction, according to interviews we conducted.

This is in contrast to general Bureau of Prisons policy, which permits “handshakes, hugs, and kisses (in good taste)” at the beginning and end of visits.[672] Moreover, while the Bureau of Prisons’ general policy is to provide inmates 300 phone call minutes a month,[673]in the cases we documented individuals frequently received far less: one 15-minute phone call per month in pretrial detention and for inmates under SAMs; at the CMUs, two 15-minute phone calls a week since 2009, which may be reduced to a single 15-minute phone call per month under a proposed rule.[674] Where imposed as a regular policy, rather than a punishment, such restrictions could last years or even a lifetime.

Prisoners described the ban on contact visits as exacerbating the pain of solitary confinement or other restrictive conditions. Dritan Duka, who is serving a life sentence at ADX Florence, described the prohibition on physical contact during visits as “the most difficult thing to deal with”:

We all want to touch our children. You want to hug and kiss them. You got to be patient. Otherwise you’ll break down like other people. … If you’re not strong this place will destroy you.[675]

In a phone interview, Aref told us: “My daughter was five years old and I have never hugged or kissed her. I never touched her because she was born after my arrest. If I knew why—but I do not have any reason.”[676]

Shukri Abu Baker, a defendant in the Holy Land Foundation case, termed the CMU a “touch of hell.”[677] In a letter, he described no-contact visits: “my children…could see, but not touch me as though I had some sort of a contagious disease that the government wanted to protect them from.”[678] He also described trying to call his hospitalized and terminally ill daughter after having exhausted his allowance of two 15-minute phone calls and a single “compassion” call:

I would panic thinking she was dying on me….The most dreadful thought I had was that she is gone before could [s]ay goodbye. The CMU has some good compassionate men who tried to help me but their hands were tied up because it was the Counter Terrorism Unit in the [Bureau of Prisons] that managed my communications….all I wanted was to be able to hear the voices of my loved ones and be heard.[679]

As Representative Sheila Jackson Lee emphasized in a 2010 letter to the Bureau of Prisons regarding CMU inmates: “the ways in which prisoners are prevented from maintaining family ties has the possibility to rise to cruel punishment, and serves no legitimate purpose.”[680]

Because international terrorism inmates are frequently held at facilities that are hundreds of miles from their families, many of the families we spoke to reported they were only able to visit once or twice a year. This is in contrast to most prisoners’ placements, as the Bureau of Prisons’ general policy is to place prisoners within a 500-mile radius of their release residence.[681]

The government’s stated purpose for imposing these family contact restrictions is to ensure complete audio monitoring of inmate communications and detect terrorist or criminal activity.[682] Yet in practice the outcomes raised human rights concerns by escalating the degree of social isolation beyond what is necessary.

Nor are these restrictions necessary to address concerns about prisoner radicalization expressed by Congress or the Department of Justice.[683] Even assuming that complete monitoring of inmate communications is a necessary and legitimate goal, the Bureau of Prisons could meet it by designing contact visitation rooms that permit audio monitoring, and increasing the resources it devotes to monitoring to permit more frequent and longer inmate phone calls.

Obstacles to Challenging Prisoner Classification and Seeking Transfer to Less Restrictive Facilities

Individuals whose cases we reviewed frequently voiced a sense of helplessness and bewilderment at their indefinite social isolation, restrictions on their communication with family, and other conditions. We spoke to many prisoners who had searched the labyrinth of prison administration for answers about the decision to impose certain restrictions on them and their recourse. They were repeatedly blocked by prison officials at multiple levels.

Challenging “Terrorism” Designations

Designation as an “international terrorist” and “domestic terrorist” can result in prisoners’ placement in special units, solitary confinement, and deprivation of contact visits, communication, and other privileges. Yet the Bureau of Prisons’ own policies and statements about terrorism designations are opaque and at times conflicting.[684] A search of Bureau of Prisons manuals and directives yielded little information about terrorism designations—leaving prisoners and their families with minimal access to an explanation of how to challenge designation decisions and treatment.[685]

Only due to our Freedom of Information Act request and following a court order did the Department of Justice confirm the existence of “an assignment system that identifies inmates with a nexus to terrorism”—based not just on their convictions, conduct and affiliations established at trial or while in prison, but an array of “open source information, intelligence provided by other law enforcement agencies, [and] other information subject to validation.”[686] The government did not describe any process for challenging the validity of information derived from these sources.[687] Nor is it clear that the Bureau of Prison’s designation review processes available to prisoners under other Security Threat Group assignments (e.g. for alleged gang affiliations) are available to prisoners designated as “terrorists.” To the extent prisoners are placed in solitary confinement and subject to other potentially abusive conditions because of their designations as “terrorists,” failure to provide a review process for designations raises due process concerns under international human rights law. (US courts have generally failed to uphold similar due process claims.)

In some cases we reviewed, the taint of terrorism subjected prisoners to harsh measures that did not appear to plausibly relate to any potential threat the prisoner poses. For example, Sabri Benkahla is a US citizen who was acquitted of providing material support for terrorism but later convicted of making false statements to a grand jury and the FBI (see above). The district judge in the case was unequivocal that “Sabri Benkahla is not a terrorist” and found that Benkahla’s false statements were not based on intent to promote a terrorist activity but “out of a desire not to be seen as involved with illegal activities.”[688] Although Benkahla received a terrorism enhancement (see section V) to his sentence, the judge concluded: “His likelihood of ever committing another crime is infinitesimal.”[689] Benkahla was classified as a minimum security prisoner and had never been charged with a disciplinary violation when, in October 2007, he was sent to a CMU. There, he was denied any contact visits from his family and permitted only one 15-minute phone call per week.[690] The American Civil Liberties Union filed a lawsuit challenging his confinement in the CMU in June 2009, and he was transferred out of it in July 2010.

The Bureau of Prisons has sometimes transferred prisoners to less restrictive conditions over time, suggesting that the “terrorist inmate” designation does not prevent all individualized inquiry and review. Indeed, we found that nearly a quarter of prisoners convicted of terrorism or terrorism-related offenses were held in low-security prisons, as of July 2013.[691] However, in the cases we reviewed, prisoners transferred to lower-security prisons did not know the reasons for the transfer, and feared being returned to more restrictive conditions.

Transferring Out of ADX

After 9/11, the Bureau of Prisons transferred several Muslim men convicted of terrorism-related offenses from less restrictive prisons to solitary confinement at ADX, although they did not have significant disciplinary histories or any involvement in the 9/11 attacks.[692] The Bureau of Prisons later changed its policies to permit prisoners to be sent to ADX if they were “convicted of, charged with, associated with, or in any way linked to terrorist activities and as a result of such, presents national security management concerns.”[693]

As Human Rights Watch has previously reported, prisoners transferred to ADX based on their convictions and alleged past conduct, rather than their disciplinary history, exist in a bleak limbo.[694] Even if they have no disciplinary history and are not believed to pose an ongoing threat, prisoners may languish in solitary confinement at ADX Florence because their placement stems from their conviction—past conduct that they can never undo. A 2007 Human Rights Watch investigation found that in a number of cases, the good conduct of prisoners had been acknowledged, yet they were denied transfer to less restrictive conditions because the “reason for placement at the ADX has not been sufficiently mitigated.”[695]

ADX has a four-phase “Step Down” program through which inmates can receive incrementally greater privileges of communicating with other inmates, greater phone privileges, and eventual transfer out of the prison.[696] However, ADX prisoners must spend at least three years at the prison to progress out of ADX, and transfer remains rare.[697]

In 2009, an updated Bureau of Prisons manual set out a six-month review process for ADX prisoners conducted by the Step Down Screening Committee, charged with deciding whether a prisoner can advance through the Step Down process. The manual describes clear disciplinary records and completion of educational programs as factors weighing in favor of successful progress.[698] Nonetheless, the Bureau of Prisons may keep a prisoner at ADX if his “original reason for placement still exists,” in other words, it appears that a prisoner could remain stuck in ADX due to his conviction, and regardless of his good behavior, if that was the basis of his placement.[699]

Transferring out of CMUs

Unlike other similarly situated Bureau of Prisons inmates,[700] prisoners are designated for a CMU and transferred there without prior notice or pre-transfer opportunity to contest their placement. Instead, within five days of transfer to a CMU, an inmate receives a “Notice of Transfer to Communications Management Unit.” Our review of these notices from several cases suggests they do not describe specific acts or evidence underlying a designation that would permit a prisoner to challenge them.[701] In some cases, the notices state that “reliable evidence” indicates the prisoner has been involved in “radicalization efforts,” but we are aware of no notices that describe the evidence.[702] The Bureau of Prisons is not required to document or substantiate CMU designations.[703] Decisions to place prisoners at the CMUs appear to bypass the Bureau of Prisons’ general designation and placement system, which by statute must include consideration of factors including the sentencing court’s statements.[704]

According to the Bureau of Prisons, as of October 2013, 45 individuals have been released or transferred from the CMUs based on a Step Down process, but it was unpredictable and ineffective in some cases.[705] Indeed, of the nearly 100 CMU detainees, the Bureau of Prisons said only four were currently in the Step Down process.[706] Whereas the Bureau of Prisons requires review of prisoners’ placement at control units every 30 days, there is no required Bureau of Prisons review of CMU prisoners’ ongoing placement.[707] In October 2009, the Bureau of Prisons issued a memo requiring staff to review CMU prisoners’ designation every six months. But this process does not provide prisoners the opportunity to address specific allegations or evidence, as is possible in the reviews for control unit prisoners.[708]

Mohamed Shnewer, a defendant in the Fort Dix case, said he had been imprisoned at Marion CMU for four years. In an email, he described the review process:

I asked how can I get out of here, I was told when my “crime” I was convicted [of] changes. It’s the same every time, there is never a discussion, this “review” usually takes less than two minutes. I sign a few places, take the papers they have ready for me, then leave the room.[709]

Defense lawyers who have visited the Marion CMU told us that the men they met had no disciplinary histories, and their continued placement at the CMU was based on their terrorism convictions. “That is only done for terrorism cases, everyone else is classified according to what they do in the prison system,” a defense lawyer explained.[710] “The effect of that means they can never change their security classification, because their underlying crime will remain the same—so no matter how they behave, they’re forever stuck.”[711]

Some CMU prisoners have filed administrative appeals, in a process that applies Bureau of Prisons-wide.[712] Nongovernmental organizations (NGOs) and advocates with whom we spoke said that no one’s placement in a CMU has ever been reversed through the administrative appeals process.[713] The Bureau of Prisons did not reply to our letter requesting information about the process, although they released statistics pursuant to our FOIA.[714]

Challenging SAMs

Under post-9/11 rules, the timeframe for imposing SAMs was extended from 120 days to one year;[715] renewal of SAMs became contingent on certification that “based on the information available” the SAMs were still necessary, rather than, as previously required, that “the circumstances identified in the original certification continued to exist.”[716]

The government contends that “[i]nmates under SAMs are afforded due process.”[717] Indeed, there are signs that the government is willing to modify and remove SAMs over time: a significant proportion of the overall number of post-conviction prisoners under SAMs has been transferred out of ADX Florence—11, as of January 14, 2011.[718] We are aware that at least some prisoners have been able to secure modification of their SAMs without pursuing an administrative remedy.

But prisoners are not given a hearing where they can contest the initial imposition of SAMs.[719] Nor do they have adequate notice of the process for securing SAMs modification and removal, nor of the conduct that will make modification and removal more likely.

After SAMs are imposed, inmates can, in theory, challenge the restrictions through the Bureau of Prisons’ Administrative Remedy Program,[720] or they can seek modification of their SAMs by making a request to a Bureau of Prisons staff member[721] or during a six-month Bureau of Prisons review.[722] But the Bureau of Prisons has argued in litigation that it in fact has “no authority to remove or amend any restrictions imposed” through SAMs.[723] One prisoner formerly held in solitary confinement under SAMs said: “The wardens of ADX used to tell us that there is nothing that they can do to improve our conditions as long as the SAMs is in place. That’s why the inmates in ADX were in an endless hunger strike,” he wrote. “[T]here is no way for them out except if SAMs is removed, and that is in the hands of the [Attorney General].”[724]

There is also an annual renewal process for each prisoner’s SAMs. Prisoners have long had the opportunity to provide written comments regarding SAMs renewal. In August 2010, the Bureau of Prisons established a process including an in-person meeting for ADX inmates under SAMs, which includes the prisoner, ADX personnel and the FBI case agent assigned to the prisoner’s case.[725] But the prisoner does not have an opportunity to address the specific allegations of the US Attorney’s office requesting SAMs renewal. Prisoners are ordinarily not given an explanation of why their SAMs are being renewed that is detailed enough for them to meaningfully contest.[726] Instead, they simply receive a boilerplate letter stating their SAMs are being renewed because they “continue to show a proclivity for violence.”[727]

Under a three-stage Step Down program (distinct from the regular ADX program), SAMs prisoners at ADX Florence can gain incrementally more out-of-cell time and phone privileges.[728] We were only able to discern the parameters of this Step Down process by reviewing the government’s responses in litigation; however, no attorneys we spoke with were able to confirm how the process works in practice—either because they were unaware of it, or because they believed the terms of their SAMs precluded them speaking about the process.[729]

Ahmed Abu Ali—Serving Life in the “H” Unit

Ahmed Abu Ali is currently serving a life sentence in ADX’s “H Unit.” He was convicted largely on the basis of a confession, which he says was false and extracted by Saudi officials who tortured him (see section IV). Abu Ali’s SAMs were apparently modified to permit him less restrictive conditions over time: while Abu Ali was previously in 23-hour lockdown with an hour of indoor exercise, he is now permitted at least two hours of interaction with other inmates a day, and an hour and a half of outdoor recreation. Still, his attorney told us they were not notified of the SAMs modification and that the Step Down process was unclear, making the duration of these ameliorated conditions—and the potential that Abu Ali could be put back in 23-hour isolation—unknown. “I have no understanding of what that process is,” the attorney told us. “There’s no handout or handbook. There’s nothing that I can point to, to say, ‘This is how you can step down in the future.’ There’s no clear guidance.” [730]

The Convention against Torture requires governments to systematically review arrangements for the custody and treatment of persons subjected to any form of confinement with a view to ensuring there is no inhuman or degrading treatment.[731]

Limited opportunities to contest conditions of confinement, including transfer into special units where prisoners are subject to solitary confinement or restrictions on their communication, raise concerns under the convention. In units that hold prisoners designated as “terrorists,” internal review systems too often fail to provide an effective check on unnecessary or prolonged solitary confinement or other restrictive conditions.

This is compounded by the fact that US law imposes unfair limitations on US prisoners’ ability to seek redress through litigation for abuse and dangerous conditions of confinement.[732]

[584] Bureau of Prisons documents obtained from Freedom of Information Act requests made by Human Rights Watch on August 24, 2012 (on file with Human Rights Watch).

[585] Then-FBI Director Robert Mueller repeatedly described prisons as “fertile ground for extremists” in 2005 and 2006. See Robert S. Mueller III, Director, Federal Bureau of Investigation, statement before the Senate Committee on Homeland Security and Governmental Affairs, Washington, DC, September 19, 2012, transcript at http://www.fbi.gov/news/testimony/homeland-threats-and-agency-responses (accessed July 11,2014), p. 24; Robert S Mueller III, Director, Federal Bureau of Investigation, speech at the City Club of Cleveland, Cleveland, Ohio, June 23, 2006, transcript at http://www.fbi.gov/news/speeches/the-threat-of-homegrown-terrorism (accessed June 27, 2014). Beginning in 2003, scholarship and government reports suggested Al-Qaeda was seeking to recruit American converts to plan terrorist attacks from prison. See, e.g., John S. Pistole, Assistant Director, Federal Bureau of Investigation, statement before the Senate Judiciary Committee, Subcommittee on Terrorism, Technology, and Homeland Security, Washington, DC, October 14, 2003, transcript at http://www.fbi.gov/news/testimony/terrorist-recruitment-in-prisons-and-the-recent-arrests-related-to-guantanamo-bay-detainees (accessed June 27, 2014). A growing literature now characterizes prisoner radicalization in hyperbolic terms—as “a threat of unknown magnitude” and “a problem unlike any other faced by correctional administrators today, or at any other time in history” —which the government has repeated or alluded to in defending its detention policies. See George Washington University Homeland Security Policy Institute and University of Virginia Critical Incident Analysis Group, “Out of the Shadows: Getting Ahead of Prisoner Radicalization,” September 2006, http://www.investigativeproject.org/documents/testimony/345.pdf (accessed June 27, 2014), p. i; Mark S. Hamm, “Terrorist Recruitment in American Correctional Institutions: An Exploratory Study of Non-Traditional Faith Groups Final Report,” December 2007, https://www.ncjrs.gov/pdffiles1/nij/grants/220957.pdf (accessed June 27, 2014), p. 111. In litigation regarding bans on group Islamic prayer, the government has cited both reports. See Lindh v. Warden, No. 2:09-cv-00215-JMS-MJD (S.D. Ind. Jan. 11, 2013).

[586] As Human Rights Watch previously reported, such restrictions have also been implemented on a piecemeal basis, including when the federal government detained approximately 1,200 individuals as "special interest" detainees immediately following September 11, and also the detention of approximately 70 or more individuals under the material witness statute. In both cases, Human Rights Watch documented harsh restrictions and conditions of confinement, all for individuals who were not charged with any crime. Human Rights Watch, Presumption of Guilt; Human Rights Watch, Witness to Abuse.

[587] See US Department of Justice, “Fact Sheet: Security at the Department of Justice Bureau of Prisons Administrative Maximum Security Facility,” February 21, 2007, http://www.justice.gov/opa/pr/2007/February/07_opa_104.html (accessed June 27, 2014).

[588] Declaration of Leslie Smith, Chief of the Counter Terrorism Unit, Lindh, No. 2:09-cv-00215-JMS-MJD (S.D. Ind. Jan. 11, 2013).

[589] See generally, US Department of Justice, Office of the Inspector General, Evaluation and Inspections Division, “The Federal Bureau of Prisons’ Monitoring of Mail for High Risk Inmates,” September 2006, http://www.justice.gov/oig/reports/BOP/e0609/final.pdf (accessed June 27, 2014).

[590] Ibid., p. 50.

[591] In 2013, the Bureau of Prisons confirmed that it plans to convert Thomson Correctional Institution in Thomson, Illinois—a former state facility purchased by the federal government—at least in part into a new administrative maximum. See James Ridgeway and Jean Casella, “Welcome to the New Federal Supermax,” Mother Jones, February 11, 2013, http://www.motherjones.com/politics/2013/02/thompson-federal-supermax-solitary-illinois-dick-durbin (accessed June 27, 2014).

[592] Solitary confinement in general has a long history, and Human Rights Watch has done extensive research on the isolated—and solitary—confinement of adults and juveniles. See, for example: Human Rights Watch, Growing Up Locked Down: Youth in Solitary Confinement in Jails and Prisons Across the United States (New York: Human Rights Watch, 2012), http://www.hrw.org/sites/default/files/reports/us1012ForUpload.pdf; Written Statement from Human Rights Watch to the Senate Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights, and Human Rights, “US: Look Critically at Widespread Use of Solitary Confinement,” June 18, 2012, http://www.hrw.org/news/2012/06/18/us-look-critically-widespread-use-solitary-confinement.

[593] Jail and prison officials do not generally use the term “solitary confinement” to refer to the range of segregation and isolation practices they employ to manage inmates. They are correct in noting that conditions are not exactly like those used in the earliest facilities to employ the practice. But because the conditions and effects of various segregation practices are substantially the same, Human Rights Watch uses a single definition based on the degree of deprivation. At the same time, this report’s focus on solitary confinement should not be read to endorse segregation and isolation practices that do not fit this definition. Any use of physical and social isolation, including those of shorter duration, can raise serious human rights concerns. The same is true for the practice of holding two inmates in conditions that would otherwise constitute solitary confinement (Human Rights Watch and mental health professionals have raised serious concerns about this practice). UN Generaly Assembly, Interim report of the Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, A/66/268, August 5, 2011, http://solitaryconfinement.org/uploads/SpecRapTortureAug2011.pdf (accessed June 28, 2014).

[594] The UN Special Rapporteur on Torture has defined solitary confined to be prolonged when it exceeds 15 days. He reported that he is “aware of the arbitrary nature of the effort to establish a moment in time which an already harmful regime becomes prolonged and therefore unacceptably painful … [and] concludes that 15 days is the limit between solitary confinement and prolonged solitary confinement because at that point, according to the literature surveyed, some of the harmful psychological effects of isolation can become irreversible” (citing Ken Strutin, “Solitary Confinement,” LLRX.com, August 10, 2010). Ibid., para. 26.

[595]We documented the cases of eight individuals who spent at least a year in post-conviction solitary confinement, all at ADX Florence. Some of them were eventually transferred to medium or low-security facilities. See Appendix - B. We were unable to document conditions of some prisoners who are held in solitary confinement and whose cases we otherwise reviewed, in part because the Bureau of Prisons denied our visit requests. We also reviewed the cases of prisoners who experienced solitary for shorter periods, sometimes in “holdover status” in transit to a prison or for disciplinary reasons, but we do not include them in this analysis.

[596] Studies have found that numerous adults who have no history of mental health problems develop psychological symptoms in solitary confinement. While many of those studies are open to questions about the mental health status of individuals before entering solitary confinement, there is agreement that solitary confinement can cause or exacerbate mental health problems. For a discussion, see Human Rights Watch, Growing Up Locked Down, p. 23. Many defendants we spoke to or corresponded with reported little direct emotional suffering, saying that their religious faith and practice sustained them, though some described the mental suffering of other inmates. Some scholars believe that prisoners tend to underreport or play down their mental health problems, perhaps out of belief that such confinement is an overt attempt by prison authorities to “break them down” psychologically. See Sharon Shalev, A Sourcebook on Solitary Confinement (London: Mannheim Centre for Criminology, London School of Economics, 2008), www.solitaryconfinement.org/sourcebook (accessed June 27, 2014), p. 12; Stuart Grassian, “Psychiatric Effects of Solitary Confinement,” Washington University Journal of Law and Policy, vol. 22 (2006), http://law.wustl.edu/journal/22/p325grassian.pdf (accessed June 27, 2014), p. 333.

[597] For background on solitary confinement policies, see generally, Human Rights Watch, Growing Up, Locked Down.

[598] John M. Vanyur, Assistant Director, Correctional Programs Division, Bureau of Prisons, statement before the Subcommittee on Intelligence, Information Sharing, and Terrorism Risk Assessment, Committee on Homeland Security, United States House of Representatives concerning “Radicalization, Information Sharing and Community Outreach: Protecting the Homeland from Homegrown Terror,” Washington, DC, April 5, 2007, transcript at http://www.investigativeproject.org/documents/testimony/283.pdf (accessed June 27, 2014).

[599] In July 2013, we used the Bureau of Prisons' inmate locator to determine the placement of 494 defendants convicted of terrorism or terrorism-related offenses according to the Department of Justice. One hundred and thirty seven of them were, at the time, held in Bureau of Prisons facilities; 143 had been released, were not in Bureau of Prisons custody, or were in transit. Nearly thirty percent of those in Bureau of Prisons facilities were held at the CMUs or ADX Florence (15 at Terre Haute FCI; 9 at Marion USP; and 13 at ADX Florence). 

[600] Bureau of Prisons documents obtained from Freedom of Information Act requests made by Human Rights Watch on August 24, 2012 (on file with Human Rights Watch); See US Government Accountability Office, “Guantánamo Bay Detainees: Facilities and Factors for Consideration if Detainees Were Brought to the United States” (report no. GAO-13-31, submitted to the Chairman, Select Committee on Intelligence, US Sentate, November 2012), http://www.gao.gov/products/GAO-13-31 (accessed July 2, 2014), p. 40.

[601] “Supermax: A Clean Version of Hell,” 60 Minutes (CBS News), June 19, 2009, http://www.cbsnews.com/8301-18560_162-3357727.html (accessed June 27, 2014).

[602]There are nine units within ADX, divided into six security levels: the Control Unit (or “Bravo” Unit); the disciplinary Special Housing Unit (also called “Zulu” Unit, the “SHU,” or the “Hole”); the so-called “Range 13” unit where prisoners have virtually no human contact; four so-called “General Population” Units (“Delta,” “Echo,” “Fox,” and “Golf” Units); the Special Security Unit (for prisoners under SAMs); and two units (“J” Unit and “K” Unit) for prisoners in the Step Down program described later in this section. ECHR, Babar Ahmad and Others v. the U.K., nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09, § 83, 10 April 2012; see also, Complaint, Cunningham v. Fed. Bureau of Prisons, No. 1:12-cv-01570 (D. Colo. filed June 18, 2012) (describing conditions at each unit). Here, we describe conditions typical for prisoners in the General Population and Special Security Units, where many individuals convicted of terrorism or terrorism-related offenses are held.

[603] No defense lawyers or inmates we spoke to complained of harassment by correctional staff at ADX, in contrast to reports we heard about other prisons in which inmates convicted of terrorism or terrorism-related offenses are held.

[604] See Plaintiff’s Response to Defendants’ Motion for Summary Judgment, Ayyad v. Holder, No. 05-cv-02342 (D. Colo. filed May 17, 2012); Columbia Law School’s Human Rights Institute phone interview with Pardiss Kebriaei, staff attorney, Center for Constitutional Rights, January 28, 2012.

[605] ECHR, Babar Ahmad and Others v. the U.K. (dec.), nos. 24027/07, 11949/08 and 36742/08, § 90, 6 July 2010. However, not all ADX prisoners are subjected to strip searches. See Professor Laura Rovner, testimony before the US Senate Committee on Judiciary Subcommittee on Constitution, Civil Rights, and Human Rights congressional hearing “Reassessing Solitary Confinement: The Human Rights, Fiscal, and Public Safety Consequences,” Washington, DC, June 15, 2012, transcript at http://www.law.du.edu/documents/student-law-office-clinical-programs/laura-rovner-university-of-denver-sturm-college-of-law.pdf (accessed July 2, 2014).

[606] See Plaintiff’s Response to Defendants’ Motion for Summary Judgment, Ayyad, No. 05-cv-02342 (D. Colo. filed Jan. 9, 2012). Columbia Law School’s Human Rights Institute phone interview with Pardiss Kebriaei, staff attorney, Center for Constitutional Rights, January 28, 2012. A 2012 European Court of Human Rights ruling upheld the extradition of prisoners to the United States despite the risk of their placement at ADX, finding the isolation suffered by ADX prisoners was “partial and relative,” because they could communicate with each other through “the ventilation system” and during recreation periods. ECHR, Babar Ahmad and Others v. the U.K., nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09, § 222, 10 April 2012.

[607] In June 2013, Dritan Duka was transferred from ADX General Population to ADX’s J Unit, the first phase of the Step Down program described below. Although provided greater phone and visitation privileges, he remains in solitary confinement. Columbia Law School’s Human Rights Institute and Human Rights Watch interview with Dritan Duka, July 19, 2012.

[608] Columbia Law School’s Human Rights Institute and Human Rights Watch interview with Dritan Duka, July 19, 2012.

[609] Another prisoner, who was held at ADX for several years, described screaming through sink drain pipes and wrote that in some units that have two sets of doors, prisoners would “shout or scream on tops of their lungs…trying to get their voices across the second solid door.” Columbia Law School’s Human Rights Institute email correspondence with Shah Wali Khan Amin (self-identified as Osama Haidar Turkistani), July 22, 2013.

[610] Columbia Law School’s Human Rights Institute and Human Rights Watch interview with Dritan Duka, July 19, 2012.

[611] Letter from Kenneth Roth, Executive Director, Human Rights Watch, to John Ashcroft, US Attorney General, March 21, 2001, http://www.hrw.org/news/2001/03/20/us-attorney-general-ashcroft-urged-act-human-rights-agenda. See also, Letter from Jamie Fellner, Executive Director, US Program, Human Rights Watch and Jennifer Daskal, Advocacy Director, US Program, to Harley G. Lappin, Federal Bureau of Prisons, May 2, 2007, http://www.hrw.org/news/2007/05/01/letter-harley-g-lapin-federal-bureau-prisons-re-adx-florence; Human Rights Watch, Locked up Alone: Detention Conditions and Mental Health at Guantanamo (New York: Human Rights Watch, 2008), http://www.hrw.org/sites/default/files/reports/us0608_1.pdf, pp. 20-23.

[612] Letter from Human Rights Watch to Harley G. Lappin, Federal Bureau of Prisons, May 2, 2007, http://www.hrw.org/news/2007/05/01/letter-harley-g-lapin-federal-bureau-prisons-re-adx-florence.

[613] Bureau of Prisons documents obtained from Freedom of Information Act requests made by Human Rights Watch on August 24, 2012 (on file with Human Rights Watch). However, a government report describes only 44 such prisoners. See US Government Accountability Office, “Guantánamo Bay Detainees: Facilities and Factors for Consideration if Detainees Were Brought to the United States” (report no. GAO-13-31, submitted to the Chairman, Select Committee on Intelligence, US Sentate, November 2012), http://www.gao.gov/products/GAO-13-31 (accessed July 2, 2014), p. 43.

[614] See Harley G. Lappin, “Testimony of Harley G. Lappin before House Appropriations Subcommittee on Commerce Justice, Science and Related Agencies,” US Congress, Washington, DC, March 12, 2008, (on file with Human Rights Watch).

[615] US Department of Justice, Federal Bureau of Prisons, Counter Terrorism Unit, “Inmates Housed in a Communication Management Unit,” updated November 25, 2013 . As of November 25, 2013, 47 of the 94 prisoners at Marion and Terre Haute were Muslim (23 of 47 at Marion, and 24 of 47 at Terre Haute). Bureau of Prisons documents obtained from Freedom of Information Act requests made by Human Rights Watch on August 24, 2012 and received January 31, 2014 (on file with Human Rights Watch).

[616] See, e.g., Center for Constitutional Rights, “Communications Management Units: The Federal Prison System’s Experiment in Social Isolation,” March 2013, http://www.ccrjustice.org/files/CCR_CMU_Factsheet_March2013.pdf (accessed July 3, 2014).

[617] Rezaq v. Nalley, 677 F.3d 1001, 1009 (10th Cir. 2012).

[618] See Lindh v. Warden, Fed. Correctional Inst., Terre Haute, Ind., No. 2:09-cv-00215-JMS-MJD (S.D. Ind. Jan. 11, 2013).

[619] Terre Haute CMU is a former federal death row unit and Marion CMU was the Secure Housing Unit of a US penitentiary that closed in 2005.

[620] Columbia Law School’s Human Rights Institute interview with Avon Twitty, Washington, DC, September 20, 2013 (quoted); Letter from Eljvir Duka to Columbia Law School’s Human Rights Institute and Human Rights Watch, November 6, 2012. According to family members of Sabri Benkahla, flooding was so severe that Benkahla had to roll up his mattress during rainstorms to keep it from getting wet. Human Rights Watch Interview with Anthony Benkahla and Souhail Benkahla, Falls Church, Virginia, August 1, 2012.

[621] Letter from Eljvir Duka to Columbia Law School’s Human Rights Institute and Human Rights Watch, November 6, 2012.

[622] Columbia Law School’s Human Rights Institute interview with Andy Stepanian, New York, February 28, 2013.

[623] Columbia Law School’s Human Rights Institute email correspondence with Mohamad Shnewer, March 18, 2013; Columbia Law School’s Human Rights Institute interview with Andy Stepanian, February 28, 2012.

[624] Columbia Law School’s Human Rights Institute phone interview with Alan Mills, legal director, Uptown People’s Law Center, February 7, 2012.

[625] Columbia Law School’s Human Rights Institute interview with Avon Twitty, September 20, 2013; Email from Mufid Abdulqader to his attorney, March 25, 2012 (on file with Human Rights Watch); Columbia Law School’s Human Rights Institute email correspondence with Mohamad Shnewer, March 18, 2013; Letter from Eljvir Duka to Columbia Law School’s Human Rights Institute and Human Rights Watch, November 6, 2012; Columbia Law School’s Human Rights Institute email correspondence with Shukri Abu Baker, Terre Haute inmate, March 1, 2013 and March 2, 2013; Letter from Matin Siraj to Sarah Qureshi and Rules Unit, Office of General Counsel, Bureau of Prisons, “Communications Management Units: Comments Submitted to the Federal Bureau of Prisons,” ed. Center for Constitutional Rights, June 2010, http://ccrjustice.org/files/Complete_Selection_Comments-2010.0618.pdf (accessed July 5, 2014), pp. 35-38; Daniel McGowan, “Tales from Inside the U.S. Gitmo,” Huffington Post, June 8, 2009, http://www.huffingtonpost.com/daniel-mcgowan/tales-from-inside-the-us_b_212632.html (accessed June 27, 2014).

[626] Columbia Law School’s Human Rights Institute interview with Avon Twitty, September 20, 2013; Letter from Eljvir Duka, November 6, 2012; Columbia Law School’s Human Rights Institute email correspondence with Mohamad Shnewer, March 18, 2013. They reported that Muslim prisoners are disciplined for conduct that, though it is technically prohibited, is routine for non-Muslim prisoners, such as keeping food in their cells. Columbia Law School’s Human Rights Institute phone interview with Elisabeth L. Owen, executive director, Colorado Prison Law Project, February 6, 2013; Columbia Law School’s Human Rights Institute email correspondence with Mohamad Shnewer, March 18, 2013; Letter from Eljvir Duka to Columbia Law School’s Human Rights Institute and Human Rights Watch, November 6, 2012; Law School’s Human Rights Institute email correspondence with Shukri Abu Baker, Terre Haute inmate, March 1, 2013 and March 2, 2013.

[627] The Bureau of Prison’s policy is to “provide inmates of all faith groups with reasonable and equitable opportunities to pursue religious beliefs and practices, within the constraints of budgetary limitations and consistent with the security and orderly running of the institution and Bureau of Prisons.” Bureau of Prisons Program Statement, “Religious Beliefs and Practices,” no. P5360.09, December 31, 2004, http://www.bop.gov/policy/progstat/5360_009.pdf (accessed July 3, 2014). At the Marion CMU, inmates reported being denied halal food items for their Eid Al Adha holiday or on their commissary list, although Jewish inmates may purchase items from a Passover list, and a Christmas list includes special items for purchase. Email from Mufid Abdulqader to his attorney, April 25, 2012 (on file with Human Rights Watch). One inmate at Terre Haute CMU told us that MP3 players are permitted in the CMU and that while Islamic songs and recitations are banned, there are six Christian genres available. Letter from Eljvir Duka to Columbia Law School’s Human Rights Institute and Human Rights Watch, November 6, 2012. Since June 2007, Terre Haute CMU has banned group prayer other than jummah service (Friday congregational prayer), arguing that “extremist inmates could use the religious services to radicalize and recruit other inmates.”Declaration of Harvey G. Church, Associate Warden, Federal Correctional Center Terre Haute, ¶ 14, Lindh v. Warden, Fed. Correctional Inst., Terre Haute, Ind., no. 2:09-cv-00215-JMS-MJD, 2013 WL 139699 (S.D. Ind. Jan. 11, 2013). In January 2013, a federal district court found that the ban violated federal law by imposing a substantial burden on religious exercise. The court found that the ban violated the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb-1, by imposing a substantial burden on religious exercise by inmate John Walker Lindh, and because the government failed to establish either a compelling government interest or that the ban was the least restrictive means of furthering that interest. Facts and Conclusions of Law, Lindh, no. 2:09-cv-00215-JMS-MJD (S.D. Ind. Jan. 11, 2013).

[628] Mufid Abdulqader, a defendant in the Holy Land Foundation case who is currently serving a 20-year sentence at the Marion CMU said that an email he wrote that cost him $20 (the Bureau of Prisons charges inmates 5 cents a minute to read, write and review emails) was pending for two weeks before the Bureau of Prisons Counterterrorism Unit rejected it without providing a reason. He described the email as mainly about “my own story of what happened to me at the time of my arrest before my trial and the extreme hardship my family and I suffered thru it.” Email from Mufid Abdulqader to his attorney, May 10, 2012 (on file with Human Rights Watch). Abdulqader is pursuing an administrative remedy and appeal regarding the rejection of his email.

[629] Columbia Law School’s Human Rights Institute email correspondence with Eljvir Duka, December 13, 2012.

[630] Ibid.

[631]As of May 2013, there were a total of 55 prisoners under SAMs: 31 termed “terrorism-related inmates,” 16 “violent-crime related inmates, and 8 termed “national security inmates (such as espionage).” Reply Letter from National Security Division, Department of Justice to Human Rights Watch, May 23, 2013 (on file with Human Rights Watch). In response to our Freedom of Infromation Act request, the Bureau of Prisons identified 9 prisons where inmates under SAMs are currently held: ADX Florence, FCC Butner, MCC New York, MDC Brooklyn, USP Terre Haute, USP Allenwood, USP Lee, FMC Devens, and FMC Carswell.

[632] SAMs generally preclude prisoners from contacting the press, communicating with the press through their attorneys, or responding to reporters’ inquiries. Bureau of Prisons documents obtained from Freedom of Information Act requests made by Human Rights Watch on August 24, 2012 (on file with Human Rights Watch); Rachel Bunn, “Silencing stories: Special administrative measures handcuff First Amendment,” News Media and The Law, vol. 36, no. 1 (Winter 2012), http://www.rcfp.org/browse-media-law-resources/news-media-law/news-media-and-law-winter-2012 (accessed July 5, 2014).

[633] Bureau of Prisons documents obtained from Freedom of Information Act requests made by Human Rights Watch on August 24, 2012 (on file with Human Rights Watch). Due to extensive redactions, we could not determine the identity of the prisoners about whom we were given information. We received 22 sets of documents about prisoners, consisting of modification or extension orders. Two of the documents were only modification orders, creating uncertainty about whether they pertained to distinct individuals.

[634] US Department of Justice, Bureau of Prisons, National Security; Prevention of Acts of Violence and Terrorism, Supplementary Information,” 66 FR 55062-66 (October 31, 2001) (codified as 28 C.F.R. § 501.2 and § 501.3). Both regulations were introduced in the mid-1990s, according to some observers, in response to the 1993 World Trade Center bombing and 1995 Oklahoma City bombing, and they were finalized in June 1997. See US Department of Justice, Bureau of Prisons, “Scope of Rules: National Security; Prevention of Acts of Violence and Terrorism,” 62 Fed. Reg. 33730-32 (June 20,1997), http://www.gpo.gov/fdsys/pkg/FR-1997-06-20/pdf/97-16208.pdf (accessed June 27, 2014) OR US Department of Justice, Bureau of Prisons, National Security; Prevention of Acts of Violence and Terrorism, Supplementary Information,” 66 FR 55062 (October 31, 2001), http://www.gpo.gov/fdsys/pkg/FR-2001-10-31/pdf/01-27472.pdf (accessed June 27, 2014) (codified as 28 C.F.R. § 501.2 and § 501.3). The timing of the initial introduction of the regulations, particularly the National Security rule, coincides with the arrest of Ramzi Yousef, one of the masterminds of the March 1995World Trade Center bombing—though SAMs were only imposed on him beginning in February 1998. See Yousef v. Reno, 254 F.3d 1214, 1216 (10th Cir. 2001); American Civil Liberties Union, “Actions for Restoring America: Transition Recommendations for President-Elect Barack Obama,” (paper presented to President Barack Obama, December 15, 2008), http://www.aclu.org/files/images/asset_upload_file734_37256.pdf (accessed July 3, 2014).

[635] 28 C.F.R. § 501.2(a) and §501.3(a). The National Security rule permits the government to impose SAMs that are “reasonably necessary to prevent disclosure of classified information” upon written certification from the head of a US intelligence agency that unauthorized disclosure of the information would “pose a threat to the national security” and that there “is a danger that the inmate will disclose such information.” 28 C.F.R. § 501.2 (1997; 2007). The Terrorism rule permits SAMs that are “reasonably necessary to protect persons against the risk of death or personal bodily injury” to be imposed upon written notification by the Attorney General or another government official. 28 C.F.R. § 501.3 (1997; 2007). The regulation appears to permit certification, at the Attorney General’s direction, by the head of a federal law enforcement agency or member agency of the intelligence community. In a letter to Human Rights Watch, the DOJ stated that all SAMs under the terrorism rule must be authorized by the DOJ, but the Bureau of Prisons may be informed of SAMs by the head of a federal law enforcement agency, or the head of a member agency of the intelligence community. Reply Letter from National Security Division, Department of Justice to Human Rights Watch, May 23, 2013 (on file with Human Rights Watch).The attorney general can issue SAMs upon a finding that “there is a substantial risk that a prisoner’s communications with persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons.” Ibid.

[636] 28 C.F.R. § 501.3(d).

[637] US Department of Justice, Bureau of Prisons, “National Security; Prevention of Acts of Violence and Terrorism,” 72 FR16274 (April 4, 2007), http://www.gpo.gov/fdsys/pkg/FR-2007-04-04/pdf/E7-6265.pdf (accessed June 27, 2014) (SAMs can be imposed on “pretrial inmates, witnesses, and immigration violators”).

[638] Reply Letter from National Security Division, Department of Justice to Human Rights Watch, May 23, 2013 (on file with Human Rights Watch); Letter from the Permanent Mission of the United States to the UN Office of the High Commissioner of Human Rights and Juan Mendez, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, February 23, 2012 (reporting there were 45 prisoners under SAMs as of February 2012); See “Fact Sheet: Prosecuting and Detaining Terror Suspects in the U.S. Criminal Justice System,” US Department of Justice press release, June 9, 2009, http://www.justice.gov/opa/pr/2009/June/09-ag-564.html (accessed July 3, 2014) (reporting that as of June 2009, there were 44 inmates subject to SAMs, 29 were incarcerated on “terrorism-related charges,” 11 on “violent crime crime-related charges (gangs, organized crime, etc.),” and four on espionage charges); “Fact Sheet: Security at the Department of Justice Bureau of Prisons Administrative Maximum Security Facility,” US Department of Justice press release, February 21, 2007, http://www.justice.gov/opa/pr/2007/February/07_opa_104.html (accessed July 3, 2014) (reporting that 33 of its 213 “terrorist inmates” were subject to Special Administrative Measures); Michael Chertoff, Assistant Attorney General, statement before the Senate Committee of the Judiciary hearing “DOJ Oversight: Preserving Our Freedoms While Defending Against Terrorism,” Washington, DC, November 28, 2001, http://www.gpo.gov/fdsys/pkg/CHRG-107shrg81998/pdf/CHRG-107shrg81998.pdf (accessed July 3, 2014), p. 14 (describing 16 prisoners under SAMs).

[639] Chertoff, Assistant Attorney General, statement before the Senate Committee of the Judiciary hearing “DOJ Oversight: Preserving Our Freedoms While Defending Against Terrorism,” Washington, DC, November 28, 2001, pp. 8-24.

[640] Reply Letter from National Security Division, Department of Justice to Human Rights Watch, May 23, 2013 (on file with Human Rights Watch).

[641] See US Department of Justice, Office of the Inspector General, Evaluation and Inspections Division, “The Federal Bureau of Prisons’ Monitoring of Mail for High Risk Inmates,” report no. I-2006-009 (September 2006), http://www.justice.gov/oig/reports/BOP/e0609/final.pdf (accessed July 2, 2014), p. 94. (Memorandum from Paul R. Johnson, Acting Executive Officer of U.S. Department of Justice Criminal Division, to Paul A. Price, Assistant Inspector for Evaluations and Inspections.)

[642] In most of the orders we reviewed, the SAMs also provided that SAM prisoners were only permitted to speak with other SAMs prisoners at “designated times,” in monitored or recorded sessions where no physical touching was allowed. Bureau of Prisons documents related to SAMs obtained on November 21, 2013 from Freedom of Information Act requests made by Human Rights Watch on August 24, 2012 (on file with Human Rights Watch); Letter from Wilson Moorer to Columbia Law School’s Human Rights Institute and Human Rights Watch, “Re: Request for Information, FOIA Request No. 2012-11904,” November 21, 2013 (on file with Human Rights Watch) (stating that SAMs prisoners are permitted to communicate “with other SAM inmates verbally and/or physically as well, during certain designated times”).

[643] See ECHR, Babar Ahmad and Others v. the U.K. (dec.), nos. 24027/07, 11949/08 and 36742/08, § 85, 6 July 2010.

[644] Memorandum of Law in Support of Defendant Kassir’s Motion to Lift the Special Administrative Measures that Have Been Imposed on Him, United States v. Mustafa, No. S2 04 CR. 356, 2008 WL 8888942 (S.D.N.Y. May 19, 2008).

[645] Memorandum of Law in Support of Defendant Kassir’s Motion to Lift the Special Administrative Measures that Have Been Imposed on Him, Exhibit A ¶ 9(a), Mustafa, No. S2 04 CR. 356, 2008 WL 8888942.

[646] In the SAMs documentation we obtained through FOIA, nearly all of the SAMs modification and extension orders stated that the prisoner “shall have access to materials determined not to facilitate criminal activity or be detrimental to national security.” Fahad Hashmi’s experience of physical and social isolation was heightened by prohibitions on his listening to television or radio news, and a 30-day delay on receiving newspapers. Memorandum of Law in Support of Mr. Hashmi’s Motion for Modification of Pretrial Conditions of Detentions and Accompanying Order from Acting Agent Matthew W. Friedrich to Director of Federal Bureau of Prisons Harry G. Lappin, extending SAMs for Syed Hashmi at 3, United States v. Hashmi, No. 1:06-cr-00442-LAP (S.D.N.Y. June 10, 2010); “Rights Groups Issue Open Letter on Upcoming NYC Trial of Syed Fahad Hashmi and Severe Special Administrative Measures,” Center for Constitutional Rights press release, April 23, 2010, http://ccrjustice.org/newsroom/press-releases/rights-groups-issue-open-letter-upcoming-nyc-trial-syed-fahad-hashmi-and-sev (accessed July 3, 2014).

[647] Prison officials twice denied Abu Ali access to the books, but in November 2008 decided to permit them. See “Al-Qaida inmate gets access to Obama’s books,” Associated Press, July 10, 2009, http://www.nbcnews.com/id/31854575/ns/us_news-security/t/al-qaida-inmate-gets-access-obamas-books/ (accessed June 27, 2014). Mohamed Rashed Al-Owhali, a prisoner under SAMs at ADX Florence, challenged the Bureau of Prisons’ denial of Jimmy Carter’s book Palestine: Peace Not Apartheid; though a court dismissed the complaint because he failed to provide more information, it wrote: “We cannot imagine how this book could have raised safety concerns or facilitated terroristactivity.” Al-Owhali v. Holder, 687 F.3d 1236, 1243 (10th Cir. 2012).Kassir was permitted to receive a newspaper “heavily censored” to remove international news, but only at least 30 days after its publication date. Defendant’s Sentencing Memorandum at 4, United States v. Kassir, No. 1:04-cr-00356-KBF-3, 2009 WL 3149523 (S.D.N.Y. Aug. 28, 2009).

[648] Bureau of Prisons documents related to SAMs obtained on November 21, 2013 from Freedom of Information Act requests made by Human Rights Watch on August 24, 2012 (on file with Human Rights Watch). These restrictions likely relate to required monitoring of communications, see above.

[649]Reply Letter from National Security Division, Department of Justice, to Human Rights Watch, May 23, 2013 (see Appendix – E); Letter from the Permanent Mission of the United States to the UN Office of the High Commissioner of Human Rights and Juan Mendez, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, February 23, 2012. The government also contends that SAMs are based on“an appropriate balancing of the interests of the individual inmates and of the public interest.” See “National Security; Prevention of Acts of Violence and Terrorism, Supplementary Information,” 66 FR 55062 (October 31, 2001). See also, United States v. Reid, 214 F.Supp.2d 84, 92 (D. Mass. 2002) (describing SAMs as “prisoner specific; that is, each prisoner upon whom SAMs are imposed has a set of SAMs issued for him, and him alone, based on the circumstances of his case”).

[650] Bureau of Prisons documents related to SAMs obtained on November 21, 2013 from Freedom of Information Act requests made by Human Rights Watch on August 24, 2012 (on file with Human Rights Watch).

[651] Letter from Wilson Moorer to Columbia Law School’s Human Rights Institute and Human Rights Watch, “Re: Request for Information, FOIA Request No. 2012-11904,” Nov. 21, 2013 (on file with Human Rights Watch).

[652] Defendant’s Motion to Disnmiss Plaintiff’s Claims as Moot, Exhibit A-6, Declaration of Mark Collins, unit manager for the General Population Units, Bureau of Prisons, ¶ 8, Reid v. Wiley, No. 07-cv-01855-PAB-KMT, (D. Colo. filed Nov. 12, 2009).

[653] Ibid.

[654] ECHR, Babar Ahmad and Others v. the U.K., nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09, § 83, 10 April 2012; Laura Rovner and Jeanne Theoharis, “Preferring Order to Justice,” American University Law Review, vol. 61, no. 5 (2012), p. 1404.

[655] Letter from Uzair Paracha to Human Rights Watch, December 2, 2012.

[656] Ibid.

[657] Ibid.

[658] The rule permits “the monitoring or review of communications between that inmate and attorneys or attorneys’ agent who are traditionally covered by the attorney-client privilege.” 28 C.F.R. § 501.3(d).

[659] Unlike other rules limiting attorney-client privilege, with SAMs there is no initial judicial oversight over the decision to monitor communications; the Attorney General alone decides the extent of “reasonably necessary” monitoring. For a comparison of SAMs with other limitations on attorney client privilege and communications, see Marianne Kerber and Alexis M. Thomas, “The Erosion of Privacy After September 11: A Call to Arms for the Protection of the Attorney-Client Relationship in the Face of a National Crisis,” Georgetown Journal of Legal Ethics, vol. 16 (Summer 2003), p.693.

[660] 28 C.F.R. § 501.3 (d)(3).

[661] Under SAMs, communications remain covered by attorney-client privilege unless they could “facilitate criminal acts or a conspiracy to criminal acts” or are not related to legal advice—categories of information that would be covered by well-recognized exceptions to the attorney-client privilege. See 28 C.F.R. § 501.3(d)(2)(ii).

[662] Letter from Wilson Moorer, November 21, 2013.

[663]See UN Human Rights Committee, General Comment 13, para. 9 (Interpreting the ICCPR as requiring “counsel to communicate with the accused in conditions giving full respect for the confidentiality of their communications,” and noting, “[l]awyers should be able to counsel and to represent their clients in accordance with their established professional standards and judgement without any restrictions, influences, pressures or undue interference from any quarter.”); see also, UN Human Rights Committee, General Comment 32, para. 34 (“Counsel should be able to meet their clients in private and to communicate with the accused in conditions that fully respect the confidentiality of their communications.”). Numerous UN guidelines likewise require “full confidentiality” of communications. See Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles), adopted December 9, 1988, G.A. Res. 43/173, annex, 43 U.N. GAOR Supp. (No. 49A) at 200, U.N. Doc. A/45/49 (1990), principle 18(3)(4); Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990, U.N. Doc. A/CONF.144/28/Rev.1 at 118 (1990), principles 8, 22; United Nations Standard Mimimun Rules for the Treatment of Prisoners (Standard Minimum Rules), adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of July 31, 1957, and 2076 (LXII) of May 13, 1977, para. 93. See also, Inter-American Commission on Human Rights, Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, approved by the Commissioan during its 131st regular period of sessions, held from March 3-14, 2008, O.A.S. Res. 1/08, O.A.S. Off. Rec. OEA/Ser/L/V/II.131, adopted March 13, 2008, principle 5.

[664] Andrew M. St. Laurent, “Managing Communications by Potentially Dangerous Detainees: A Balancing Act,” Bloomberg BNA, October 10, 2012, http://www.bna.com/managing-communications-by-potentially-dangerous-detainees-a-balancing-act/ (accessed July 3, 2014).

[665] Ibid.

[666] These were the case of Fahd Hashmi, Abu Ali, and Tarek Mehanna, discussed above.

[667] Columbia Law School’s Human Rights Institute phone interview with Jay Carney, October 18, 2012.

[668] Joshua L. Dratel, “Ethical Issues in Defending a Terrorism Case: How Secrecy and Security Impair the Defense of a Terrorism Case,” Cardozo Public Law, Policy and Ethics Journal, vol. 2, issue 1 (Fall 2003), pp. 81, 85.

[669] US Department of Justice, Office of the Inspector General, Evaluation and Inspections Division, “The Federal Bureau of Prisons’ Monitoring of Mail for High Risk Inmates,” report no. I-2006-009 (September 2006), http://www.justice.gov/oig/reports/BOP/e0609/final.pdf (accessed July 2, 2014), p. 94 (Memorandum from Paul R. Johnson, Acting Executive Officer of U.S. Department of Justice Criminal Division, to Paul A. Price, Assistant Inspector for Evaluations and Inspections: “June 26, 2014) 26, 2014)-13-31 (ch)All social visits for SAMs inmates are non-contact and are monitored contemporaneously by the FBI as well as recorded for later monitoring and analysis”).

[670] US Government Accountability Office, “Guantánamo Bay Detainees: Facilities and Factors for Consideration if Detainees Were Brought to the United States,” report to the Chairman, Select Committee on Intelligence, US Sentate, GAO-13-31 (November 2012), http://www.gao.gov/products/GAO-13-31 (accessed July 2, 2014), p. 44 (“no physical contact is allowed during visits”); US Department of Justice, Federal Bureau of Prisons, “Institutional Supplement,” no. THX-5270.07A, November 30, 2008, https://www.prisonlegalnews.org/media/publications/terre_haute_cmu_institution_supplement_2006.pdf (accessed July 1, 2014), p. 5; US Department of Justice, Federal Bureau of Prisons, “Institutional Supplement,” no. MAR-5270.07A, March 20, 2008, https://www.prisonlegalnews.org/media/publications/bop_marion_cmu_institution_supplement_2008.pdf (accessed July 1, 2014), p. 4; US Department of Justice, Federal Bureau of Prisons, “Institutional Supplement,” no. MAR-5321.07A, November 13, 2008, https://www.prisonlegalnews.org/media/publications/bop_operation_and_security_of_the_cmu_11-13-2008.pdf (accessed July 1, 2014).

[671] US Department of Justice, Federal Bureau of Prisons, “Institutional Supplement,” no. FML 5267.08C, May 7, 2014, http://www.bop.gov/locations/institutions/flm/FLM_visit_hours.pdf (accessed July 3, 2014) (permitting five non-contact visits a month in “isolated rooms”).

[672] “Visiting Room Procedures,” Federal Bureau of Prisons, accessed July 3, 2014, http://www.bop.gov/inmates/visiting.jsp.

[673] Bureau of Prisons Program Statement, “Inmate Telephone Regulations,” no. P5264.08, February 11, 2014, http://www.bop.gov/policy/progstat/5264_008.pdf (accessed July 3, 2014), p. 14.

[674] Inmates at the CMUs were previously permitted only one phone 15-minute phone call a week. See Aref v. Holder, 774 F.Supp. 2d 147, 154 (D.D.C. 2011). In March 2013, the Bureau of Prisons reopened the period for public comment on a rule it proposed in 2010 that would limit CMU prisoners to a single 15-minute phone call and restrict them to one hour of family visitation a month (they currently receive eight hours). See US Department of Justice, Bureau of Prisons, “Proposed Rule: Notice to Reopen Comment Period,” 28 C.F.R Part 540; Department of Justice, Bureau of Prisons Docket No. 1148-N; US Department of Justice, Bureau of Prisons, “Communication Management Units,” 75 FR 17324 (April 6, 2010).

[675] Columbia Law School’s Human Rights Institute and Human Rights Watch interview with Dritan Duka, July 19, 2012; Columbia Law School’s Human Rights Institute email correspondence with Shain Duka, June 14, 2013.

[676] Columbia Law School’s Human Rights Institute phone interview with Yassin Aref, February 23, 2012. Aref was reportedly permitted to meet and hold his newborn daughter at least twice prior to being sent to a CMU. He did not hold her again until after he was transferred out of the CMU, when she was six years old. See Complaint, Aref v. Holder, No. 1:10-cv-00539-BJR-DAR (D.D.C. filed Apr. 1, 2010).

[677] Letter from Shukri Abu Baker to Columbia Law School’s Human Rights Institute, March 1, 2013.

[678] Columbia Law School’s Human Rights Institute email correspondence with Shukri Abu Baker, March 19, 2013.

[679] Letter from Shukri Abu Baker to Columbia Law School’s Human Rights Institute, March 1, 2013.

[680] Letter from Congresswoman Sheila Jackson Lee to Federal Bureau of Prisons, c/o Director Harley Lappin, November 22, 2010 (on file with Columbia Law School’s Human Rights Institute).

[681] “If an inmate is placed at an institution that is more than 500 miles from his/her release residence, generally, it is due to specific security programming, or population concerns.” “Custody and Care: Designations,” Federal Bureau of Prisons, accessed July 2, 2014, http://www.bop.gov/inmates/custody_and_care/designations.jsp.

[682] See Declaration of Leslie Smith, Chief of the Counter Terrorism Unit, Lindh v. Warden, No. 2:09-cv-00215-JMS-MJD (S.D. Ind. Jan. 11, 2013) (“As a result of documented problems with ongoing communications from some federal prisoners, the volume, frequency and methods of allowing CMU inmates contact with person in the community must be restricted as required by the goal of complete monitoring of their communications”). However, communication limitations for SAMs prisoners are due to the Department of Justice, not the Bureau of Prisons, as we describe below. Moreover, for inmates held at pretrial facilities and at Bureau of Prisons prisons, we were not able to find bureau-level policies on contact and phone privileges, and many decisions may be made at the warden-level. Some denial of contact and phone visits occurs when inmates are placed in special housing units.

[683] See US Department of Justice, Office of the Inspector General, Evaluation and Inspections Division, “The Federal Bureau of Prisons’ Monitoring of Mail for High Risk Inmates,” report no. I-2006-009 (September 2006), http://www.justice.gov/oig/reports/BOP/e0609/final.pdf (accessed July 2, 2014).

[684] For example, while in 2008 the director of the Bureau of Prisons told Congress that it had about 1200 “terrorist” inmates in custody, in November 2013, it told us there were only 475 such inmates in pre-conviction and post-conviction custody. In 2008, then-Bureau of Prisons director Harley Lappin told Congress there were “211 international terrorists” and a little more than 1,200 total “[i]f you throw in the domestic terrorists.” Asked where these “terrorists” were from, Lappin said, “[y]ou know, primarily the Middle East.” He later provided a breakdown indicating these “international terrorists” were citizens of 37 countries, including the United States, as well as countries as varied as Belize, Haiti and Japan. The designation as “international” rather than “domestic” terrorist does not appearto be related to an inmate’s US versus foreign citizenship. Nor does it appear to track the inmate’s citizenship in a country that the US considers to be a hotbed of activity by Al-Qaeda or any groups the U.S. describes as affiliated with Al-Qaeda. It is thus hard to discern the underlying basis for these different designations. In addition, Lappin’s figure of 211 “international terrorist inmates” is far fewer than the Department of Justice’s number of 494 individuals convicted of international terrorism or terrorist-related offenses. In February 2012, Bureau of Prisons reported to the Government Accountability Office that it had 373 inmates “charged with or convicted of federal crimes related to terrorism” in its custody. In November 2013, the Bureau of Prisons told us there were 332 post-conviction prisoners designated as “international terrorism” and 91 as “domestic terrorism,” while there were 52 pre-conviction prisoners so designated in their custody. See Harley G. Lappin, “Testimony of Harley G. Lappin before House Appropriations Subcommittee on Commerce Justice, Science and Related Agencies,” US Congress, March 12, 2008, (on file with Human Rights Watch); US Government Accountability Office, “Guantánamo Bay Detainees: Facilities and Factors for Consideration if Detainees Were Brought to the United States,” report to the Chairman, Select Committee on Intelligence, US Sentate,GAO-13-31 (November 2012), http://www.gao.gov/products/GAO-13-31 (accessed July 2, 2014); Bureau of Prisons documents related to SAMs obtained on November 21, 2013 from Freedom of Information Act requests made by Human Rights Watch on August 24, 2012 (on file with Human Rights Watch).

[685] In 2007, the Bureau of Prisons released a “fact sheet” describing a system to classify individuals as “terrorist inmates,” defined broadly as “those having been convicted of, charged with, associated with, or linked to terrorist activities, or belonging to organizations that planned and/or executed violent and destructive acts against the government and/or privately owned US corporations. Department of Justice, Fact Sheet: Security at the Department of Justice Bureau of Prisons Administrative Maximum Security Facility, February 21, 2007.

[686] Letter from Preet Bharara, US Attorney’s Office for the Southern District of New York, Department of Justice, Re: Human Rights Watch v. Dep’t of Justice Fed. Bureau of Prisons, 13 Civ. 7360 (HB), January 17, 2014 (on file with Human Rights Watch).

[687] The Bureau of Prisons may base an initial placement decision on a prisoner’s security score, which is calculated based on several factors, including the sentencing court’s recommendation and the prisoner’s criminal history. If the Bureau of Prisons seeks to place an individual at a higher or lower-security prison, inconsistent with his security score, it must base its decision on a “management variable.” The Bureau of Prison’s Program Statement on inmate placement does not reference terrorism offenses or “terrorist inmates” at any point. However, it describes one management variable as “Central Inmate Monitoring,” applying to “certain inmates who present special needs for management.” It is possible that individuals deemed “terrorist inmates” are placed at prisons inconsistent with their security scores, but without further information we could not determine if this was the case. See US Department of Justice, Federal Bureau of Prisons, “Program Statement: Inmate Security Designation and Custody Classification,” September 12, 2006, http://www.bop.gov/policy/progstat/5100_008.pdf (accessed June 26, 2014).

[688] United States v. Benkahla, 501 F.Supp.2d 748, 760 (E.D. Va. 2007), aff’d, 500 F.3d 300 (4th Cir. 2008).

[689] Ibid., p.759.

[690] Amended Complaint, Benkahla v. Fed. Bureau of Prisons, No. 2:09-cv-00025-WTL-DML (S.D. Ind. filed July 7, 2009), pp. 9-12.

[691] In July 2013, we used the BOP’s inmate locator to determine the placement of 494 defendants convicted of terrorism or terrorism-related offenses according to the Department of Justice. Thirty-two of the prisoners were held in low-security facilities; 41 in medium-security facilities. Thirteen prisoners were held at high-security prisons other than ADX Florence.

[692]See Human Rights Watch Letter to Harley G. Lappin, Federal Bureau of Prisons , May 2, 2007, http://www.hrw.org/news/2007/05/01/letter-harley-g-lapin-federal-bureau-prisons-re-adx-florence; Memorandum from Michael B. Cooksey, Assistant Director Correctional Programs Division, Federal Bureau of Prisons to all Chief Executive Officers, “Guidance for Handling of Terrorists and Recent Detainees,” October 1, 2001(“Following the tragic events of September 11, 2001, all inmates in the custody of the Bureau of Prisons who were convicted of, charged with, associated with, or in any way linked to terrorist activities were placed in Administrative Detention as part of an immediate national security endeavor.” (quoted and discussed in Laura Rovner and Jeanne Theoharis, “Preferring Order to Justice,” American University Law Review, Vol. 61 (2012), http://www.aulawreview.org/pdfs/61/61-5/Rovner-Theoharis.website.pdf (accessed June 26, 2014), p. 1331.)).

[693] Neither the term “terrorist activities” nor “national security management concerns” are defined. Memorandum from Michael K. Nalley, Regional Director, Federal Bureau of Prisons, North Central Regional Office, November 2, 2007 (quoted in Rovner and Theoharis, “Preferring Order to Justice,” American University Law Review, p. 1331).

[694] See Human Rights Watch Letter to Harley G. Lappin, Federal Bureau of Prisons, May 2, 2007, http://www.hrw.org/news/2007/05/01/letter-harley-g-lapin-federal-bureau-prisons-re-adx-florence; see also, Human Rights Watch letter to Paul Harvey, Registrar, European Court of Human Rights, re: Appl. No. 36004/08, Gary McKinnon v. United Kingdom, August 27, 2008 (on file with Human Rights Watch).

[695] Human Rights Watch Letter to Harley G. Lappin, Federal Bureau of Prisons, May 2, 2007, http://www.hrw.org/news/2007/05/01/letter-harley-g-lapin-federal-bureau-prisons-re-adx-florence.

[696] US Government Accountability Office, “Improvements Needed in Bureau of Prisons’ Monitoring and Evaluation of Impact of Segregated Housing,” report to Congressional Requestors, GAO-13-429 (May 2013), http://www.gao.gov/assets/660/654349.pdf (accessed July 1, 2014), p. 9. The 2012 European Court of Human Rights decision upholding extradition of prisoners to ADX cited the Step Down program,  reasoned that while there might be a violation of the European Convention on Human Right’s prohibition on torture and ill-treatment for inmates who “spent significant periods of time” at ADX, the prison provided a way out for prisoners. However, ADX prisoners must spend at least three years at the prison to progress out of ADX. ECHR, Babar Ahmad and Others v. the U.K., nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09, § 88,10 April 2012.

[697] ECHR, Babar Ahmad and Others v. the U.K., nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09, § 88, 10 April 2012; US Government Accountability Office, “Improvements Needed in Bureau of Prisons’ Monitoring and Evaluation of Impact of Segregated Housing,” Report to Congressional Requestors, GAO-13-429 (May 2013), http://www.gao.gov/assets/660/654349.pdf, p. 9. Fewer than 5 percent of ADX prisoners have completed the Step Down program in just three years. Appellants’ Opening Brief at 10, Rezaq v. Nalley, 677 F.3d 1001 (10th Cir. 2012). A study of 110 ADX prisoners reported that the average length of solitary confinement at the prison was 8.2 years. See also, Professor Laura Rovner, testimony before the US Senate Committee on Judiciary Subcommittee on Constitution, Civil Rights, and Human Rights, congressional hearing “Reassessing Solitary Confinement: The Human Rights, Fiscal, and Public Safety Consequences,” Washington, DC, June 15, 2012, transcript at http://www.law.du.edu/documents/student-law-office-clinical-programs/laura-rovner-university-of-denver-sturm-college-of-law.pdf (describing Bureau of Prisons’ resistance to providing relevant statistics and discussing study finding that 43 prisoners at ADX Florence and USP Marion had been in solitary confinement for more than eight years) (accessed July 2, 2014).

[698] See ECHR, Babar Ahmad and Others v. the U.K., nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09, § 88, 10 April 2012 (describing 2009 Supplement); US Department of Justice, Federal Bureau of Prisons, “Institutional Supplement,” no. FML 5321.06J(1), November 21, 2011.

[699] Ibid.; US Government Accountability Office, “Improvements Needed in Bureau of Prisons’ Monitoring and Evaluation of Impact of Segregated Housing,” Report to Congressional Requestors, GAO-13-429 (May 2013), http://www.gao.gov/assets/660/654349.pdf, p. 60. In litigation before the European Court of Human Rights, the US government reported that since the 2009 manual came into effect, it has moved an increasing percentage of prisoners to ADX’s less restrictive units. ECHR, Babar Ahmad and Others v. the U.K., nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09, § 88, 10 April 2012. Indeed, we are aware of at least two prisoners who successfully completed the Step Down program and were transferred out of ADX, although one described irregularities in the review system. Eljvir Duka was transferred from ADX to a CMU in August 2011 after completing only two Step Down phases, and his family reported that they could not learn why he was transferred before completing the program. Shain Duka was transferred from ADX to Big Sandy USP after completing the Step Down program: he spent one year in ADX General Population, six months in ADX’s J Unit, six months in K-Unit, and one year in the Delta Bravo Unit. Columbia Law School’s Human Rights Institute email correspondence with Shain Duka, June 14, 2013. However, defense lawyers remain concerned about the prospects for transfer out of ADX and argue that only a minority of ADX prisoners have progressed through the program. ECHR, Babar Ahmad and Others v. the U.K., § 191, 10 April 2012 (discussing testimony and evidence submitted by defense lawyer and solitary confinement expert Laura Rovner). According to the government’s September 2011 response to the European Court of Human Rights, there were only 89 prisoners in the Step Down program, which is about a quarter of the population eligible for it (this excludes ADX prisoners under SAMs and in the Control Unit, who are subject to different procedures). Of those in the program, 25 were in the third and final phase—forming about only 7 percent of the ADX prisoner population eligible for the program. In response to a request by the European Court of Human Rights, the Department of Justice in September 2011 reported that there were 252 prisoners at ADX in General Population.

[700] For example, before a prisoner is transferred to a Bureau of Prisons Control Unit (a type of unit for inmates believed to pose a threat to other inmates or to prison security), he or she is entitled to 24-hour advance notice of the charges and the specific acts or evidence forming the basis for the transfer recommendation, a live hearing with representation by a staff member, and the opportunity to call witnesses and present documentary evidence and a written decision. 28 C.F.R. § 541.40 (describing control unit programs) and § 541.43.

[701] There is typically a one-page form that only includes enough space for a brief paragraph, which commonly describes the prisoner’s conviction and underlying conduct, with an emphasis on his communication with other individuals or terrorist groups. See, e.g., Complaint, Exhibit E, “Notice to Inmate of Transfer to Communication Management Unit,” Reg. No. 12778-052 (Aref, Yassin Muhiddin), Aref v. Holder, No. 1:10-cv-00539-BJR-DAR (D.D.C. filed Apr. 1, 2010) (describing, inter alia, his offense conduct as including “communicating in code and teaching others how to commit crimes of arson”); Complaint, Exhibit E, “Notice to Inmate of Transfer to Communication Management Unit,” Reg. No. 39551-039 (Jayyousi, Kifah), Aref, No. 1:10-cv-00539-BJR-DAR (D.D.C. filed Apr. 1, 2010) (describing his offense conduct as including “significant communication…to al-Qaida”).

[702] See, e.g., Complaint, Exhibit E, “Notice to Inmate of Transfer to Communication Management Unit,” Reg. No. 12778-052, 052 (Aref, Yassin Muhiddin), Aref, No. 1:10-cv-00539-BJR-DAR (D.D.C. filed Apr. 1, 2010) (stating “[r]eliable evidence indicates your crimes and incarceration conduct have included involvement in recruitment and radicalization efforts, including of other inmates, through extremist, violence oriented indoctrination methods to intimidate or coerce others”); Motion to Add and Remove Defendants, Attachment No. 4, Benkahla v. Fed. Bureau of Prisons, No. 2:09-cv-00025-WTL-DML (S.D. Ind. July 29, 2010). But see, Defendant’s Cross Motion for Summary Judgment, Exhibit 3, Attachment 1, Lindh v. Warden, No. 2:09-cv-00215-JMS-MJD (S.D. Ind. Jan. 11, 2013).

[703] For a critique of the CMU designation process, see Center for Constitutional Rights, et al, “Communications Management Units: Comments Submitted to the Federal Bureau of Prisons,” comments submitted to US Department of Justice, Federal Bureau of Prisons, Office of General Counsel, June 2010, http://ccrjustice.org/files/Complete_Selection_Comments-2010.0618.pdf (accessed June 26, 2014).

[704] See 18 U.S.C. § 3621(b).

[705] US Department of Justice, Federal Bureau of Prisions, Counter Terorrism Unit, “Communications Management Units (CMU) Population Tracking,” November 25, 2013, obtained from Freedom of Information Act requests by Human Rights Watch (on file with Human Rights Watch).

[706] Ibid.

[707] 28 C.F.R. § 541.49 (providing for review by a control unit team every 30 days and by the “Executive Panel” every 60 to 90 days).

[708] US Government Accountability Office, “Improvements Needed in Bureau of Prisons’ Monitoring and Evaluation of Impact of Segregated Housing,” report to Congressional Requestors, GAO-13-429 (May 2013), http://www.gao.gov/assets/660/654349.pdf (accessed July 1, 2014), p. 54; The US Government Accountability Office reviewed ten files of CMU prisoners and found that for two prisoners, the BOP “did not include documentation that unit team staff regularly monitored the inmate’s CMU status every six months.” US Government Accountability Office, “Improvements Needed,” p. 58; see Memorandum in Support of Plaintiffs’ Motion for Summary Judgment at 31-36, Aref v. Holder, No. 1:10-cv-00539-BJR-DAR (D.D.C. filed March 23, 2014).

[709] Columbia Law School’s Human Rights Institute email correspondence with Mohamed Shnewer, March 18, 2013.

[710] Columbia Law School’s Human Rights Institute phone interview with Alan Mills, legal director, Uptown People’s Law Center, February 7, 2013; see Memorandum in Support of Plaintiffs’ Motion for Summary Judgment at 33-34, Aref, No. 1:10-cv-00539-BJR-DAR (D.D.C. filed March 23, 2014) (describing Bureau of Prisons’ staff confusion over criteria for continued designation to CMUs).

[711] Ibid.

[712] See US Department of Justice, Federal Bureau of Prisons, “Institutional Supplement,” no. THX-5270.07A, November 30, 2008, https://www.prisonlegalnews.org/media/publications/terre_haute_cmu_institution_supplement_2006.pdf (accessed July 1, 2014), p. 5; US Department of Justice, Federal Bureau of Prisons, “Institutional Supplement,” no. MAR-5270.07A, March 20, 2008, https://www.prisonlegalnews.org/media/publications/bop_marion_cmu_institution_supplement_2008.pdf (accessed July 1, 2014), p. 4; US Department of Justice, Federal Bureau of Prisons, “Institutional Supplement,” no. MAR-5321.07A, November 13, 2008, https://www.prisonlegalnews.org/media/publications/bop_operation_and_security_of_the_cmu_11-13-2008.pdf (accessed July 1, 2014), p. 5. See also, 28 C.F.R. § 542.10-19.

[713] Letter from the Brenann Center for Justice to Sarah Qureshi, Office of General Counsel, Bureau of Prisons, from Brennan Center for Justice, June 2, 2010, http://www.ccrjustice.org/files/Public%20Comment%20Volume%20Former%20Corrections%20Officers-2010.0602.pdf (accessed July 1, 2014); Columbia Law School’s Human Rights Institute phone interview with Alexis Agathocleous, staff attorney at Center for Constitutional Rights, August 27, 2012; Columbia Law School’s Human Rights Institute phone interview with Laura Rovner, director of Civil Rights Clinic at Sturm College of Law, University of Denver, February 6, 2013

[714] See letter from Columbia Law School’s Human Rights Institute to Charles E. Samuels, Director of the Bureau of Prisons, November 29, 2013. We received a letter from the Bureau of Prisons Research Review Board directing us to submit a research proposal; letter from Jody Klein-Saffran, Human Subjects Protection Officer, Bureau of Prisons to Columbia Law School’s Human Rights Institute, January 23, 2013. We submitted a research proposal on March 15, 2013 and at time of writing had received no response.

[715] 28 C.F.R. § 501.2(c) and § 501.3(c) (2007).

[716] 28 C.F.R. § 501.2(c) and § 501.3(c) (2007); 28 C.F.R. § 501.2(c) and § 501.3(c) (1997).

[717] Letter from the Permanent Mission of the United States to the UN Office of the High Commissioner of Human Rights and Juan Mendez, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Feb. 23, 2012.

[718] Defendants’ Reply in Support of Motion for Summary Judgment at 53, Mohammed v. Holder, No. 1:07-cv-02697-MSK-BNB, 2014 WL 2743935 (D. Colo. June 17, 2014).

[719] Plaintiff’s Response to Defendants’ Motion for Summary Judgment, Part Three at 60, Mohammed v. Holder, No. 1:07-cv-02697-MSK-BNB, 2014 WL 2743935 (D. Colo. June 17, 2014).

[720] 28 C.F.R. § 501.3(e); 28 C.F.R. § 542.11(a)(3) (Administrative Remedy Program).

[721] Once the request for modification is “made known,” information concerning the proposed modification is forwarded to the prosecuting United States Attorneys Office and the FBI for review and consideration. Defendants’ Motion for Summary Judgment at 37, Ayyad v. Holder, No. 05-cv-02342 (D. Colo. filed Mar. 25, 2011).

[722] During a review that occurs every six months, the Bureau of Prisons collects recommendations from staff and the prisoner regarding the SAMs and current conditions of confinement. Staff also review requests, grievances, and/or administrative remedies submitted by the prisoner throughout the year, disciplinary information from throughout the year, correspondence to/from the prisoner, types of educational materials requested, types of leisure materials requested, and participation in the various programming offered by the institution. Plaintiff’s Response to Defendants’ Motion for Summary Judgment, Exhibit 3 at 15, Mohammed v. Holder, No. 1:07-cv-02697-MSK-BNB, 2014 WL 2743935 (D. Colo. June 17, 2014). Since 2009, the review provides an in-person meeting with the prisoner and his unit team approximately one week following the submission of written comments by the prisoner. While this process allows for some input from the prisoner, it is inadequate because the Bureau of Prisons has limited authority to modify or remove SAMs yet the the Bureau of Prisons is the only institution the prisoner can questions from and with which he may discuss his concerns.

[723] See Plaintiff’s Response to Defendants’ Motion for Summary Judgment at 54, Ayyad, No. 05-cv-02342 (D. Colo. filed May 17, 2012); Plaintiff’s Response to Defendants’ Motion for Summary Judgment, Exhibit 21 at 12, Mohammed v. Holder, No. 1:07-cv-02697-MSK-BNB, 2014 WL 2743935 (D. Colo. June 17, 2014) (“[T]he Bureau’s role in such matters is to inform you of the SAMs restrictions and ensure the measures are followed. To this extent, unit staff have influence as to how the restrictions are applied, and can affect appropriate modifications provided such approval would not jeopardize security concerns”).

[724] Columbia Law School’s Human Rights Institute email correspondence with Shah Wali Khan Amin (self-identified as Osama Haidar Turkistani), March 21, 2013.

[725] Following the meeting with the inmate, ADX staff prepare a memorandum summarizing the discussion with the prisoner, which is then routed to ADX personnel who are in a position to provide additional input about the prisoner. See Defendants’ Motion for Summary Judgment at 32, Ayyad v. Holder, No. 05-cv-02342 (D. Colo. filed March 25, 2011). The US Attorney’s Office and the DOJ’s Office of Enforcement Operations also receive information after this meeting.

[726] See, e.g., Plaintiff’s Response to Defendants’ Motion for Summary Judgment, Exhibits Part 4 at 17, Mohammed, No. 1:07-cv-02697-MSK-BNB, 2014 WL 2743935 ("Based upon information provided to me of your proclivity for violence there is substantial risk that your communications or contacts with persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of serious bodily injury to persons." This explanation does not provide any evidence of the prisoner's "proclivity of violence," other than the original conviction of a terrorism crime, and merely tracks the statutory language for imposing SAMs).

[727] Ibid.

[728] In 2012, Director of the Bureau of Prisons Samuels described a “three phase program with increased out of cell time or increased telephone calls monthly based upon positive adjustment and programming, again depending upon the specific SAMs conditions.”Charles E. Samuels, Jr., Director, Federal Bureau of Prisons, statement before the US Senate Committee on Judiciary Subcommittee on Constitution, Civil Rights, and Human Rights congressional hearing “Reassessing Solitary Confinement: The Human Rights, Fiscal, and Public Safety Consequences,” Washington, DC, June 19, 2012, transcript at http://www.justice.gov/ola/testimony/112-2/06-19-12-bop-samuels.pdf, p. 9. The “Special Security Unit Program” is the counterpart of the Step Down Program for ADX General Population inmates. According to the Bureau of Prisons, its purpose is “to confine inmates with SAMs under close controls while providing them opportunities to demonstrate progressively responsible behavior and participate in programs in a safe, secure environment.” In 2009, ADX increased these prisoners out-of-cell recreation time from five to ten hours, which is the same as non-SAMs prisoners. Defendants’ Reply in Support of Motion for Summary Judgment at 46, Mohammed v. Holder, No. 1:07-cv-02697-MSK-BNB, 2014 WL 2743935 (D. Colo. June 17, 2014); Defendants’ Reply in Support of Motion for Summary Judgment, Exhibit Q-1, Declaration of ADX Associate Warden Louis J. Milusnic, ¶ 34, Mohammed, No. 1:07-cv-02697-MSK-BNB, 2014 WL 2743935.

[729] In litigation, the Bureau of Prisons has described a review process for “H Unit” prisoners that occurs every six months. To be eligible for Step Down, prisoners must have a minimum of twelve months of clear conduct (no disciplinary infractions), positive behavior, respectful conduct toward staff and other prisoners, and “positive overall institutional adjustment.” Defendants’ Reply in Support of Motion for Summary Judgment at 48, Mohammed v. Holder, No. 1:07-cv-02697-MSK-BNB, 2014 WL 2743935 (D. Colo. June 17, 2014). Inmates must also participate and complete recommended programs. While the prisoner participates in his six-month program review, he is not entitled to have counsel or call witnesses. See Implementation of the Special Security Unit Program, December 21, 2009, p. 3. In the first and second phases, prisoners progress from getting two 15-minute non-legal phone calls per month to three such calls.See Charles E. Samuels, Jr., Director, Federal Bureau of Prisons, statement before the US Senate Committee on Judiciary Subcommittee on Constitution, Civil Rights, and Human Rights, congressional hearing “Reassessing Solitary Confinement,” Washington, DC, June 19, 2012, transcript at http://www.justice.gov/ola/testimony/112-2/06-19-12-bop-samuels.pdf; Ibid., p. 47; Defendants’ Reply in Support of Motion for Summary Judgment, Exhibit Q-1, Declaration of ADX Associate Warden Louis J. Milusnic, ¶¶ 19-20, Mohammed, No. 1:07-cv-02697-MSK-BNB, 2014 WL 2743935. In the third phase of the program, prisoners get their first opportunity to have physical contact with other individuals—a minimum of 1.5 hours with a small group of inmates—although like other ADX prisoners they are still denied any contact visits. Defendants’ Reply in Support of Motion for Summary Judgment at 47-48, Mohammed, No. 1:07-cv-02697-MSK-BNB, 2014 WL 2743935; Defendants’ Reply in Support of Motion for Summary Judgment, Exhibit Q-1, Declaration of ADX Associate Warden Louis J. Milusnic, ¶ 21, Mohammed, No. 1:07-cv-02697-MSK-BNB, 2014 WL 2743935. As of September 2011 there were only six prisoners in this phase of the program. Opinion and Order, Mohammed, No. 1:07-cv-02697-MSK-BNB, 2014 WL 2743935. To get to the third phase, inmates must get their SAMs modified, though the procedure for obtaining modification is unclear.

[730] Columbia Law School’s Human Rights Institute interview with attorney (name and location withheld), July 13, 2012.

[731] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 22, 2006, art. 11. If a person alleges ill-treatment, he or she has a right to complain to, and to have his case promptly and impartially examined by, authorities of the jurisdiction in question. Convention against Torture, arts. 12 and 13.

[732] Human Rights Watch, No Equal Justice: the Prison Litigation Reform Act in the United States (New York: Human Rights Watch, 2009), http://www.hrw.org/sites/default/files/reports/us0609webwcover.pdf.