By Christopher Zoukis
In another series of court rulings upholding the use of Special Administrative Measures (SAMs), a prisoner at the federal ADX supermax facility in Florence, Colorado was prohibited from receiving certain publications and communicating with his nieces and nephews.

The federal Bureau of Prisons’ use of SAMs originated in a regulation promulgated in 1996 – 28 C.F.R. § 501.3 – that was amended in the wake of the 9/11 terrorist attacks and finalized in 2007. See: 72 FR 16271, 16275 (April 4, 2007). The regulation, titled “Prevention of Acts of Violence and Terrorism,” provides that “upon direction of the Attorney General, the Director, Bureau of Prisons, may authorize the Warden to implement special administrative measures that are reasonably necessary to protect persons against the risk of death or serious bodily injury.”

Imposed pursuant to a request by a “federal law enforcement agency or the head of a member agency of the United States intelligence community,” SAMs can be used to house prisoners in restricted confinement and to curtail or eliminate their ability to communicate with others – including the public, the media, other prisoners and family members. Seemingly mundane activities such as “carrying of religious materials, recreation, and exercise time” have been restricted by SAMs. See: Yousef v. Reno, 254 F.3d 1214 (10th Cir. 2001) [PLN, March 2002, p.11]. Even attorney-client communications may be monitored pursuant to SAMs, if deemed “reasonably necessary for the purpose of deterring future acts of violence or terrorism.”

While 28 C.F.R. § 501.3 requires that a prisoner be given written notice of the imposition of SAMs and the “basis of the restrictions,” there are no hearings when a prisoner is placed on SAMs, though they must be reviewed annually.

Mohamed Rashed Al-Owhali, serving life plus 40 years for his role in the August 7, 1998 bombing of the U.S. embassy in Nairobi, Kenya, is housed at the ADX and has been subject to SAMs since he was incarcerated in 1998.

In 2004, Al-Owhali was informed that his right to correspond with family members was being curtailed; up to that time, he had been corresponding with his nieces and nephews without incident. As the basis for the new SAMs, Al-Owhali was merely advised that his conviction for acts of terrorism demonstrated a “proclivity for violence,” and that federal prison officials were concerned that his “communications or contacts with persons could result in death or serious bodily injuries to persons.”

Further, Al-Owhali’s subscriptions to two Arabic-language newspapers were prohibited on the basis that barring the publications would prevent him “from receiving and acting upon critically-timed information coded in a potentially undetectable manner.” He was also allegedly prohibited from receiving a book titled Palestine: Peace, Not Apartheid, by former President Jimmy Carter. The SAMs imposed on Al-Owhali were reapproved annually and extended in 2008, which prompted him to file suit.

Unfortunately for Al-Owhali, the lack of due process protections when SAMs are imposed apparently carries little weight in the courts, because his challenge to the SAMs was reviewed under the usual standards applicable to prisoner lawsuits, including Turner v. Safley, 482 U.S. 78 (1987) and the pleading requirements set forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009) [PLN, July 2009, p.18].

The district court granted the Bureau of Prisons’ motion to dismiss, holding that Al-Owhali had not presented facts to support his claims and had failed to show “that there are alternative means of exercising plaintiff’s rights in question, the lack of impact accommodation of the asserted rights will have on guards and other inmates and on allocation of prisoner resources generally, and finally the absence of ready alternatives.” [See: PLN, Aug. 2011, p.27].

In affirming the dismissal on August 7, 2012, the Tenth Circuit held that it was Al-Owhali’s “burden to demonstrate that there is no legitimate, rational basis for the increased communications restriction.” As such, he “simply needed to plead some plausible facts … that the ban on communicating with his nieces and nephews did not serve the purpose of preventing future terrorist activity.”

The Court of Appeals found that Al-Owhali had failed to demonstrate that barring communication with his family members was not rationally connected to preventing terrorist acts. As to the restriction on Al-Owhali’s newspaper subscriptions, the appellate court merely noted that such restrictions were common and that he had failed to rebut the government’s “logical safety rationale for limiting his access to Arabic-language media – namely the need to prevent Al-Owhali from acting upon contemporary information or receiving coded messages.” Regarding the book by former president Carter, the Court held that “Al–Owhali’s sparse pleadings on this claim fail to allege a plausible constitutional violation,” as his “vague allegation[s]” lacked factual context.

As a final matter, the Tenth Circuit disposed of Al-Owhali’s claim that the SAMs violated his “equal protection of the law,” by commenting on the lack of specificity in his pleadings, which did not clearly indicate he was raising a Fifth Amendment due process claim. “It is not ours to piece together Al-Owhali’s arguments for him…. We do not engage in guessing games to determine which arguments Al-Owhali might be asserting,” the Court of Appeals wrote.

Al-Owhali’s circumstances are not unique. Federal case law is replete with rulings involving SAMs, which now encompass not only restrictions imposed on terrorists but also on other prisoners deemed management problems by federal prison officials, such as gang members. See, e.g., Mills v. Davis, U.S.D.C. (D. Col.), Case No. 1:11-cv-03165-PAB; 2012 WL 1657367 (SAMs applied to Aryan Brotherhood leader housed at ADX).

As the use of SAMs has increased, so has the use of Special Management Units and Communications Management Units within the Bureau of Prisons. [See: PLN, Sept. 2012, p.26]. Concurrently, due process concerns such as those raised in this case have increased as well, with little apparent interest or intervention by the federal courts. See: Al-Owhali v. Holder, 687 F.3d 1236 (10th Cir. 2012).

(This article was first published in Prison Legal News and is used here by permission)

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).

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