COLUMBIA
HUMAN RIGHTS
LAW REVIEW

HOW TERROR TRANSFORMED FEDERAL
PRISON: COMMUNICATION
MANAGEMENT UNITS
David M. Shapiro

Reprinted from
Columbia Human Rights Law Review
Vol. 44, No. 1
Fall 2012

COLUMBIA HUMAN RIGHTS LAW REVIEW
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HOW TERROR TRANSFORMED
FEDERAL PRISON:
COMMUNICATION MANAGEMENT UNITS

David M. Shapiro*

I. INTRODUCTION
The decade since 9/11 witnessed a revolution in federal
incarceration, ushering in major changes within the Federal Bureau
of Prisons (“BOP” or the “Bureau”). Surprisingly, this transformation
received little attention in the academic literature.1 The limited
discussion of changes in domestic incarceration becomes especially
striking when compared to the extensive scholarship addressing
detention beyond, or at the periphery of, American territory, in
locations such as Abu Ghraib, CIA “black sites,” Bagram Air Base,
and Guantanamo Bay.2
*
Clinical Assistant Professor, Northwestern University School of Law.
While employed by the American Civil Liberties Union, the author was lead
counsel in Benkahla v. Federal Bureau of Prisons, No. 2:09-CV-00025 (S.D. Ind.
Jan. 21, 2009), which challenged the creation of Communication Management
Units. The author is grateful to Emily Berman, David Fathi, Jacob Fiddelman,
and Jennifer Soble for their constructive suggestions.
1.
See infra note 7 and accompanying text.
2.
See generally Jonathan Hafetz, Habeas Corpus after 9/11:
Confronting America’s Global Detention System (2011); Benjamin Wittes et al.,
The Brookings Institution, The Emerging Law of Detention: The
Guantánamo Habeas Cases as Lawmaking (Jan. 22, 2010), available at
http://www.brookings.edu/~/media/Files/rc/papers/2010/0122_guantanamo_wittes
_chesney/0122_guantanamo_wittes_chesney.pdf; Daniel J. Meltzer, Habeas
Corpus, Suspension, and Guantanamo: The Boumediene Decision, 2008 Sup. Ct.
Rev. 1 (2008); Robert Chesney & Jack Goldsmith, Terrorism and the Convergence
of Criminal Military Detention Models, 60 Stan. L. Rev. 1079 (2008); Robert
Chesney, Iraq and the Military Detention Debate: Firsthand Perspectives from the
Other War, 2003–2010, 51 Va. J. Int’l L. 549 (2011); Matthew Waxman, The Law
of Armed Conflict and Detention Operations in Afghanistan, in The War in
Afghanistan: A Legal Analysis 343 (Michael Schmitt ed., 2009). It appears that
not only domestic prison conditions, but also domestic investigations and federal
prosecutions in terrorism-related cases, have received comparatively little
attention. Criminal proceedings in such cases have been less closely analyzed

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The War on Terror, however, affects domestic incarceration as
surely as it influences detention abroad. For example, regulations
promulgated shortly after 9/11 permit government officials to monitor
communications between lawyers and federal prisoners purportedly
connected to terrorist groups, a substantial limitation of the attorneyclient privilege.3 In 2005, the Department of Justice established the
Correctional Intelligence Initiative,4 a program whose functions
include “[d]etecting, deterring, and disrupting efforts by terrorist,
extremist, or radical groups to radicalize or recruit in federal, state,
local, tribal, and privatized prisons.”5 In 2006, concerned with
potential radicalization and terrorist recruitment in prison, BOP
removed a host of religious texts from the shelves of prison libraries,
generating an exclusive list of permissible books.6 These

than “[t]he rights violations of people detained at Guantanamo, in naval brigs, or
subjected to rendition and torture in CIA black sites.” Laura Rovner & Jeanne
Theoharis, Preferring Order to Justice, 61 Am. U. L. Rev. 1331, 1333 (2012).
3.
National Security: Prevention of Acts of Violence and Terrorism, 66 Fed.
Reg. 55,062, 55,066 (Oct. 31, 2001) (interim rule that attorney-client
communications of prisoners may be monitored where “[r]easonable suspicion
exists to believe that a particular inmate may use communications with attorneys
or their agents to further or facilitate acts of terrorism”); National Security:
Prevention of Acts of Violence and Terrorism, 72 Fed. Reg. 16,271, 16,271 (Apr. 4,
2007) (codified at 28 C.F.R. pt. 501.3) (finalizing interim rule).
4.
Letter from Joseph Billy, Acting Director, Counterterrorism Division,
Fed. Bureau of Investigation, to Paul A. Price, Assistant Inspector General, U.S.
Dep’t of Justice (Sept. 22, 2006) (on file with author); Office of Inspector General,
U.S. Dep’t of Justice, A Review of the Federal Bureau of Prisons’ Selection of
Muslim Religious Services Providers 27–28 (2004) [hereinafter Muslim Religious
Services Providers].
5.
Prison Radicalization: Are Terrorist Cells Forming in U.S. Cell Blocks?:
Hearing Before the Senate Committee on Homeland Security and Governmental
Affairs and Related Agencies, 109th Cong. 25 (2006) (statement of Donald Van
Duyn, Deputy Assistant Director, Counterterrorism Division, Fed. Bureau of
Investigation).
6.
Laurie Goodstein, Prisons Purging Books on Faith from
Libraries, N.Y. Times, Sept. 10, 2007, http://www.nytimes.com/2007/09/10
/us/10prison.html. The removal of certain publication was driven by concerns
about religious radicalization and a fear that prisons could become “[r]ecruiting
grounds for militant Islamic and other religious groups.” Id. Congress later
enacted a federal statute to ban this program. Second Chance Act of 2007, Pub. L.
No. 110-199, 122 Stat. 683, Sec. 214(a) (codified at 42 U.S.C. 17534(a) (2008))
(“Not later than 30 days after the date of enactment of this Act, the Director of the
Bureau of Prisons shall discontinue the Standardized Chapel Library project, or
any other project by whatever designation that seeks to compile, list, or otherwise
restrict prisoners’ access to reading materials, audiotapes, videotapes, or any
other materials made available in a chapel library . . . .”).

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How Terror Transformed Federal Prison

49

transformations in federal incarceration rarely have been examined,7
but they implicate rights ranging from the effective assistance of
counsel8 to the free exercise of religion.9
This Article addresses a component of BOP’s response to 9/11
that has gone virtually unaddressed in the scholarly literature: the
creation of Communication Management Units (“CMUs”).10 Prisoners
incarcerated in CMUs face sweeping communication restrictions that
all but eliminate contact with the outside world. In 2006, BOP issued
a Notice of Proposed Rulemaking entitled “Limited Communication
7.
The Correctional Intelligence Initiative has never been mentioned in a
law review article. The Standardized Chapel Library Project, see supra note 6 and
accompanying text, has been discussed in two student notes and one student
comment. Andrew Lincoln, Note, Purging Religion from Prison: The
Constitutionality of the Standardized Chapel Library Project, 6 First Amend L.
Rev. 312 (2008); Joanna E. Varner, Comment, Battle of the Lists: The Use of
Approved Versus Restricted Religious Book Lists in Prison, 40 McGeorge L. Rev.
803 (2009); Aamir Wyne, Note, Dear God, Give Me Back My Books: The
Standardized Chapel Library Project and Free Exercise Rights, 11 U. Pa. J. Const.
L. 1135 (2009). Post-9/11 limitations on the attorney-client privilege in federal
prison have received slightly greater attention. See, e.g., Chris Ford, Fear of a
Blackened Planet: Pressured by the War on Terror, Courts Ignore the Erosion of
the Attorney-Client Privilege and Effective Assistance of Counsel in 28 C.F.R.
501.3(D) Cases, 12 Wash. & Lee J. Civil Rts. & Soc. Just. 51, 95 (2006); Marjorie
Cohn, The Evisceration of the Attorney-Client Privilege in the Wake of September
11, 2001, 71 Fordham L. Rev. 1233, 1251 (2003); see generally Katherine
Ruzenski, Balancing Fundamental Civil Liberties and the Need for Increased
Homeland Security: The Attorney-Client Privilege After September 11th, 19 St.
John’s J. Legal Comment. 467 (2005); Akhil Reed Amar & Vikram David Amar,
The New Regulation Allowing Federal Agents To Monitor Attorney-Client
Conversations: Why It Threatens Fourth Amendment Values, 34 Conn. L. Rev.
1163 (2002).
8.
See Ford, supra note 7, at 95 (arguing that monitoring the attorneyclient communications of suspected terrorists pursuant to Special Administrative
Measures trenches on the Sixth Amendment right to effective assistance of
counsel).
9.
See Lincoln, supra note 7, at 316, 339 (arguing that the Standardized
Chapel Library Project violates the Free Exercise Clause).
10.
Communication Management Units—the subject of this Article—have
been examined closely only once in the scholarly literature, in a recent student
note. Luke A. Beata, Note, Stateside Guantanamo: Breaking the Silence, 62
Syracuse L. Rev. 281 (2012) (arguing that the operation of CMUs violates due
process requirements and the Administrative Procedure Act, and suggesting
policy improvements). The analysis in this Article is consistent with that of the
note, but goes on to consider in depth additional statutory and constitutional
objections to CMUs as well as additional policy considerations and
recommendations. CMUs are also discussed briefly in Sahar F. Aziz, Caught in a
Preventive Dragnet: Selective Counterterrorism in a Post-9/11 America, 47 Gonz.
L. Rev. 429, 453–56 (2012).

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for Terrorist Inmates” (“2006 NPRM”), setting forth a proposed rule
that would empower the Bureau to severely restrict the
communications of prisoners “who have an identifiable link to
terrorist-related activity.”11 The Bureau, however, never promulgated
a final rule based on the 2006 NPRM, essentially abandoning the
proposed rulemaking. Nonetheless, seven months later, the Bureau
converted the former federal death row in Terre Haute, Indiana—the
unit that housed Oklahoma City bomber Timothy McVeigh until his
execution—into the first CMU.12 The following month, seventeen
prisoners, all but two of them Muslims, arrived at the unit.13 As a
notice issued to CMU inmates would later state, reasons for
placement in a CMU include “association, communication, or
involvement related to international or domestic terrorism.”14
The Terre Haute CMU was created through an unusual
procedure. The Bureau captioned the document that established the
new unit and set forth the governing rules as an “Institution
Supplement.” This is a policy document that the Bureau uses to
establish rules that apply to a single facility, and it is issued without
notice-and-comment rulemaking.15 The Institution Supplement
provided that CMU prisoners would be cordoned off from other
inmates and face sweeping restrictions on communications with the
outside world.16
Less than two years later, an internal BOP memo stated that
“the need for CMU bed space ha[d] exceeded the capacity” of the
Terre Haute CMU.17 Through the issuance of a second Institution

11.
Limited Communication for Terrorist Inmates, 71 Fed. Reg. 16,520,
16,523 (proposed Apr. 3, 2006).
12.
Christopher S. Stewart, Little Gitmo, N.Y. Mag., Jul. 10, 2011,
http://nymag.com/news/features/yassin-aref-2011-7/.
13.
Carrie Johnson & Margot Williams, Guantanamo North: Inside
Secretive U.S. Prisons, Nat’l Pub. Radio, Mar. 3, 2011, http://www.npr.org/
2011/03/03/134168714/guantanamo-north-inside-u-s-secretive-prisons.
14.
Fed. Bureau of Prisons, U.S. Dep’t of Justice, Notice to Inmates: Review
of Inmates for Continued Communication Management Unit (CMU) Designation 1
(on file with author), available as Exhibit F to Complaint, Aref v. Holder, 774 F.
Supp. 2d 147 (D.D.C. 2011) (No. 10-0539) [hereinafter Review of Inmates].
15.
Fed. Bureau of Prisons, Institution Supplement THX-5270.07A, at 1
(Nov. 30, 2006) (on file with author), available as Exhibit A to Complaint, Aref v.
Holder, 774 F. Supp. 2d 147 (D.D.C. 2011) (No. 10-0539) [hereinafter Terre Haute
CMU Institution Supplement].
16.
Terre Haute CMU Institution Supplement, supra note 15, at 3.
17.
Memorandum from Joyce K. Conley, Assistant Director, Fed. Bur. of
Prisons, to All Regional Directors 1 (Mar. 5, 2011) (on file with author), available

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How Terror Transformed Federal Prison

51

Supplement, virtually identical to the one used in Terre Haute, the
Bureau then created the second CMU at the United States
Penitentiary in Marion, Illinois.18 In 2010, and following the filing of
two lawsuits challenging the establishment of CMUs on
administrative law grounds, BOP issued a second notice of proposed
rulemaking, this time entitled “Communication Management Units”
(“2010 NPRM”).19 The Bureau, however, has yet to promulgate a final
regulation, and the two CMUs continue to be governed only by the
Institution Supplements.
CMU prisoners face broad restrictions on their
communications with the outside world. These inmates may make
only two fifteen-minute telephone calls per week and may only
receive two visits per month—far less contact with the outside world
than BOP permits for virtually all other federal prisoners.20 The
Bureau forbids all physical contact (including hugs, kisses, and
handshakes) between CMU prisoners and their visitors, completely
isolates CMU prisoners from non-CMU prisoners, and uses special
equipment to monitor and record all conversations among CMU
prisoners.21 The pending regulation proposed in the 2010 NPRM
would limit communication even further.22
The Bureau’s operation of CMUs has been the subject of three
major lawsuits. The first of these, Benkahla v. Federal Bureau of
Prisons, which was litigated by counsel at the American Civil
Liberties Union (“ACLU”), challenged the creation of CMUs on
administrative law grounds, asserting that BOP failed to engage in
mandatory notice-and-comment procedures prior to establishing the
new units.23 The ACLU of Indiana filed a second case, Lindh v.
Warden, which asserted that CMUs violate the Religious Freedom

as Exhibit G to Amended Complaint, Benkahla v. Fed. Bureau of Prisons, No.
2:09-CV-00025 (S.D. Ind. July 27, 2009).
18.
U.S. Dep’t of Justice, Fed. Bur. of Prisons, Institution Supplement
MAR-5270.07A, at 1 (Nov. 13, 2008) [hereinafter Second Marion CMU Institution
Supplement].
19.
Communication Management Units, 75 Fed. Reg. 17,324 (proposed
Apr. 6, 2010) (to be codified at 28 C.F.R. pt. 540); Complaint at 65, Aref v. Holder,
774 F. Supp. 2d 147 (D.D.C. 2011) (No. 10-0539) [hereinafter Aref Complaint];
Amended Complaint at 11, Benkahla v. Fed. Bureau of Prisons, No. 2:09-CV00025 (S.D. Ind. July 27, 2009) [hereinafter Benkahla Complaint].
20.
See infra notes 73–92 and accompanying text.
21.
See infra notes 78–79, 98–103, and accompanying text.
22.
Communication Management Units, 75 Fed. Reg. at 17,326–27.
23.
Benkahla Complaint, supra note 19, at 1.

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Restoration Act (“RFRA”)24 by denying prisoners adequate
opportunities for congregate prayer.25 The Center for Constitutional
Rights filed a third case, Aref v. Holder, challenging the operation of
CMUs on administrative law, due process, equal protection, Eighth
Amendment, and First Amendment grounds.26 The Benkhala case
was voluntarily dismissed after BOP transferred the plaintiff to a
different unit; Lindh and Aref remain pending as of this writing.
This Article asserts that BOP’s operation of CMUs is greatly
flawed, both legally and from the perspective of sound policy. CMUs
were created without public notice-and-comment; the Bureau
dispatches prisoners to these units without adequate procedures and
on the basis of vague and overbroad criteria; unnecessarily severe
restrictions all but eliminate the communications of CMU prisoners
with the outside world; and limitations on congregate prayer in
CMUs severely inhibit religious exercise.
Part II of this Article examines the government’s rationales
for establishing CMUs. Part III describes conditions in CMUs and the
criteria and procedures governing the assignment of prisoners to
these units. Part IV argues that CMUs rest on questionable legal
footing under several federal statutes and constitutional provisions.
Part V examines CMUs from a policy standpoint, proposing
improvements that would clarify the criteria for placing prisoners in
CMUs and increase CMU prisoners’ contact with the outside world,
all without jeopardizing prison security or compromising the principal
functions of these units.

II. THE GOVERNMENT’S RATIONALES FOR CREATING
COMMUNICATION MANAGEMENT UNITS
The Bureau of Prisons created CMUs for five principal
reasons. First, the Bureau believes that communications between
certain prisoners and the outside world require heightened
monitoring, and that reducing the volume of such communications
makes monitoring easier.27 Second, concentrating prisoners in CMUs,
as opposed to dispersing them throughout various general population
units, makes it more difficult for CMU prisoners to evade

24.
42 U.S.C. §§ 2000bb–2000bb-4 (2006).
25.
Complaint at 1, Lindh v. Warden, No. 2:09-CV-0215, 2012 WL 379737
(S.D. Ind. Feb. 3, 2012).
26.
Aref Complaint, supra note 19, at 2–5.
27.
See infra notes 32–40 and accompanying text.

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How Terror Transformed Federal Prison

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communication restrictions.28 Third, concentrating prisoners in
CMUs facilitates monitoring of the cellblock and visiting room
conversations of these inmates: most non-CMU facilities lack the
equipment to monitor such communications.29 Fourth, CMUs provide
the Bureau with an alternative to an even more draconian set of
limitations—Special Administrative Measures (“SAMs”)—when BOP
believes an inmate poses a significant threat but one that would not
warrant the imposition of SAMs.30 Fifth, CMUs exist to cordon off
certain prisoners, thereby inhibiting terrorist “radicalization” and
recruitment in federal prisons.31 Each of these rationales is examined
below in greater detail.

A. Reducing the Volume of Communications To Improve
Monitoring
The government’s principal rationale for establishing CMUs
appears to be that limiting the communications of certain prisoners,
primarily those thought to have connections with terrorists,
facilitates careful monitoring. On April 3, 2006, BOP published a
Notice of Proposed Rulemaking entitled “Limited Communication for
Terrorist Inmates.”32 The 2006 NPRM set forth the central concern
that ultimately resulted in the creation of CMUs:
Past behaviors of terrorist inmates provide sufficient
grounds to suggest a substantial risk that they may
inspire or incite terrorist-related activity, especially if
communicated to groups willing to become martyrs, or
to provide equipment or logistics to carry out
terrorist-related activities. The potential ramifications
of this activity outweigh the inmate’s interest in
unlimited communications with persons in the
community . . . .33
The 2006 NPRM cited examples in which prisoners have
attempted to further terrorist acts while incarcerated, noting, for
example, that Sheikh Abdel Rahman, who was incarcerated for

28.
See infra notes 41–43 and accompanying text.
29.
See infra notes 44–47 and accompanying text.
30.
See infra notes 48–56 and accompanying text.
31.
See infra notes 57–62 and accompanying text.
32.
Limited Communication for Terrorist Inmates, 71 Fed. Reg. 16,520
(proposed Apr. 3, 2006).
33.
Id. at 16,521.

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involvement in the 1993 World Trade Center bombing,34 “had urged
his followers to wage jihad to obtain his release.”35 The 2006 NPRM
also asserted that the communications of imprisoned terrorists
“acquire a special level of inspirational significance for those who are
already predisposed to [extremist] views, causing a substantial risk
that such recipients of their communications will be incited to
unlawful terrorist-related activity.”36
According to the 2006 NPRM, limiting visits, telephone calls,
and correspondence would facilitate monitoring of inmates whose
communications could pose substantial dangers by reducing the
volume of communications necessary to monitor.37 Specifically, the
2006 NPRM states:
By limiting the frequency and volume of the
communication to/from inmates identified under this
regulation, we will reduce the amount of
communication requiring monitoring and review.
Reducing the volume of communications will help
ensure the Bureau’s ability to provide heightened
scrutiny in reviewing communications, and thereby
reducing [sic] the terrorism threat to the public and
national security.38
Like the 2006 NPRM, both the Terre Haute and Marion
Institution Supplements, issued in 2006 and 2008 respectively, state
that communications will be limited to facilitate monitoring.
Specifically, the Institution Supplements inform prisoners: “[y]our
communication . . . may be limited as necessary to allow effective
monitoring.”39 The second NPRM, issued in 2010, also contains the
same principal justification: additional restrictions on the
communications of certain “high risk” prisoners will facilitate careful
monitoring.40
34.
Alia Malek, Gitmo in the Heartland, The Nation, Mar. 28, 2011, at 17;
Attorney Gen. John Ashcroft, Prepared Remarks, Islamic Group Indictment/SAMs
(Apr. 9, 2002).
35.
Limited Communication for Terrorist Inmates, 71 Fed. Reg. at 16,522.
36.
Id. at 16,521.
37.
Id. at 16,522.
38.
Id.
39.
Terre Haute CMU Institution Supplement, supra note 15, Attachment
A, at 1; Second Marion Institution Supplement, supra note 18, Attachment A,
at 1.
40.
Communication Management Units, 75 Fed. Reg. 17,324, 17,325
(proposed Apr. 6, 2010) (to be codified at 28 C.F.R. pt. 540) (“The volume,

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How Terror Transformed Federal Prison

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B. Preventing Prisoners from Circumventing Communication
Restrictions
Concentrating
prisoners
subject
to
communication
restrictions in specialized units, and forbidding all contact between
CMU prisoners and non-CMU prisoners, is also designed to prevent
CMU prisoners from evading monitoring. As the 2010 NPRM states,
if BOP monitored all communications of a high-risk prisoner in a
general population unit but did not rigorously monitor the
communications of other prisoners in the same unit, the high-risk
prisoner might evade monitoring by sending a letter under another
inmate’s name or by making a telephone call with the PIN number
for another inmate’s telephone account.41
This concern helps to explain BOP’s decision not merely to
limit the communications of certain prisoners but to concentrate
these prisoners in specialized units. In a CMU, as distinguished from
a typical unit, BOP rigorously monitors the communications of all
prisoners,42 which may decrease opportunities to circumvent
monitoring through collaboration with other prisoners.43

C. Monitoring Cellblock and Visiting Room Conversations
In addition to facilitating the monitoring of telephone calls
and correspondence, concentrating prisoners in CMUs also allows
BOP, using equipment not available in most federal prisons, to record
both communications among prisoners and communications between
prisoners and visitors. Shortly before the creation of CMUs, the
Justice Department’s Inspector General criticized BOP for failing to
monitor the cellblock and visiting room communications of high-risk
prisoners:

frequency, and methods of CMU inmate contact with persons in the community
may be limited as necessary to achieve the goal of total monitoring . . . .”).
41.
Id. (“It is difficult to police inmate communication in the ‘open’ context
of a general population setting because it is harder to detect activity such as
inmates sending mail under another inmate’s name, or using another’s PIN
number, without constant monitoring.”).
42.
Id. (stating that CMU prisoners will be subject to “complete monitoring
of telephone use, written correspondence, and visiting”); Terre Haute CMU
Institution Supplement, supra note 15, at 2 (stating that all calls and visits will
be “live-monitored by staff”).
43.
See Terre Haute CMU Institution Supplement, supra note 15, at 1 (“By
operating a self-contained housing unit, staff may adequately regulate and
monitor all communications between inmates and persons in the community.”).

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[T]he BOP may be missing opportunities to gather
intelligence about terrorist and other high-risk
inmates by monitoring their conversations with
visitors in the visiting rooms and with other inmates
in the cellblocks. Monitoring verbal exchanges in
these settings poses challenges to the BOP, but
inmates may plan and conduct illegal activities during
visits or in the housing units if they know their mail
and telephone calls are being monitored.44
BOP has the ability to monitor both the cellblock and visiting
room communications of CMU prisoners. Although most BOP
facilities lack the ability to monitor cellblock conversations among
prisoners,45 BOP now monitors all such communications among CMU
prisoners: “[T]here are cameras and listening devices throughout the
[Terre Haute CMU]. Some of these are visible to prisoners, and some
are not.”46 Similarly, monitoring conversations in a typical visiting
room, in which multiple prisoners meet simultaneously with multiple
visitors, is often difficult because many conversations occur at the
same time. In contrast, prisoners in a CMU speak to visitors through
telephones with BOP monitoring the line.47

44.
Office of Inspector General, U.S. Dep’t of Justice, The Federal Bureau
of Prisons’ Monitoring of Mail for High-Risk Inmates 68 (2006) [hereinafter
Monitoring of Mail].
45.
Prior to the establishment of CMUs:
[T]he BOP did not monitor the cellblock conversations of SAMs inmates
or the visiting room conversations of international terrorist and other
high-risk inmates who were not under SAMs. In addition, a lack of audio
recording equipment was a further barrier to recording cellblock and
visiting room conversations at most institutions.
Monitoring of Mail, supra note 44, at vii.
46.
Plaintiffs’ Memorandum in Support of Second Motion for Summary
Judgment at 5, Lindh v. Warden, No. 2:09-CV-0215, 2012 WL 379737 (S.D. Ind.
Feb. 3, 2012) (citations omitted) [hereinafter Lindh Plaintiffs’ S.J. Memorandum].
See also Carrie Johnson & Margot Williams, Guantanamo North: Inside Secretive
U.S.
Prisons,
Nat’l
Pub.
Radio,
Mar.
3,
2011,
available
at
http://www.npr.org/2011/03/03/134168714/guantanamo-north-inside-u-s-secretiveprisons (“Every word [CMU prisoners] speak is picked up by a counterterrorism
team that eavesdrops from West Virginia.”).
47.
Communication Management Units, 75 Fed. Reg. 17,324, 17,325
(proposed Apr. 6, 2010) (to be codified at 28 C.F.R. pt. 540) (stating that CMU
prisoners will be subject to “complete monitoring of . . . visiting.”); Terre Haute
CMU Institution Supplement, supra note 15, at 2 (stating that visits will be “livemonitored by staff”).

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D. Providing an Alternative to Special Administrative Measures
While CMU prisoners face severe communication restrictions,
federal regulations give the Attorney General authority to impose
even more sweeping limitations through Special Administrative
Measures.48 The federal regulations governing SAMs permit virtually
any restrictions on communications believed to be “reasonably
necessary to protect persons against the risk of acts of violence or
terrorism,”49 and the Bureau has asserted that SAMs could even be
used to eliminate a prisoner’s communications with the outside world
entirely.50 Prisoners subject to SAMs typically are held in isolated
confinement,51 meaning that restrictions on communications with the
outside world are compounded by the elimination of contact with
other prisoners. The SAM regulations, unlike the rules governing
CMUs, also allow for monitoring of attorney-client communications.
Specifically, when there exists “reasonable suspicion . . . to believe
that a particular inmate may use communications with attorneys or
their agents to further or facilitate acts of terrorism,” BOP must,
upon order of the Attorney General, “provide appropriate procedures
for the monitoring or review of communications between [an] inmate
and attorneys or attorneys’ agents.”52 Prisoners subject to SAMs
currently include Richard Reid (the “Shoe Bomber”) and Sheikh
Abdel Rahman, among many others.53
CMU placement triggers severe limitations on communication
but does not result in restrictions as extreme as the limitations to
which most SAM prisoners are subjected.54 Thus, CMUs create an
alternative to SAMs, enabling BOP to impose substantial
communication restrictions in cases where the evidence does not
warrant the imposition of a SAM and where officials believe that a
prisoner’s communications pose a lesser, but still significant, risk.55
As the 2010 NPRM states, BOP may send prisoners to a CMU based
48.
28 C.F.R. § 501.3 (2006).
49.
Id.
50.
Communication Management Units, 75 Fed. Reg. at 17,235 (stating
that SAMs “have the potential to restrict communication entirely”).
51.
Frank Dunham, When Yasir Esam Hamdi Meets Zacarias Moussaoui, 4
Rich. J. Global L. & Bus. 21, 32 (2004).
52.
28 C.F.R. § 501.3(d).
53.
Alia Malek, Gitmo in the Heartland, Nation, Mar. 10, 2011, at 17;
Attorney General John Ashcroft, Remarks on Islamic Group Indictment/SAMs
(Apr. 9, 2002).
54.
Communication Management Units, 75 Fed. Reg. at 17,235.
55.
Id.

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on “evidence which does not rise to the same degree of potential risk
to national security or risk of acts of violence or terrorism which
would warrant the Attorney General’s intervention by issuance of a
SAM.”56

E. Inhibiting “Radicalization” and Terrorist Recruitment
CMUs are also used to cordon off inmates that the Bureau
believes may seek to radicalize other prisoners or recruit them to
terrorist groups.57 For example, in one high-profile case, California
prisoners “recruited more than a dozen fellow prisoners into a group
called the JIS (Jamiyyat Ul-Islam Is-Saheed, roughly translated as
the Assembly of Authentic Islam)” and contemplated attacks on
targets including national guard recruiting centers and a
synagogue.58 The plan was exposed in 2005, however, when a follower
who had been released from prison was arrested after robbing a gas
station in an attempt to fund the attacks.59
BOP has not stated publicly that CMUs exist in part to
isolate prisoners with a tendency to radicalize or recruit other
inmates, but the reasons for CMU placement given to individual
inmates suggest as much. For example, one Notice of Transfer states:
“Reliable evidence indicates your incarceration conduct has included
56.
Id.
57.
“Radicalization” and terrorist recruitment are separate concepts.
Radicalization has been defined as “the process by which inmates who do not
invite or plan overt terrorist acts adopt extreme views, including beliefs that
violent measures need to be taken for political or religious purposes.” Muslim
Religious Services Providers, supra note 4, at 6 n.6 (2004). Recruitment, in
contrast, refers to “the solicitation of individuals to commit terrorist acts or
engage in behavior for a terrorism purpose.” Id. While some law enforcement
agencies subscribe to the view that being radicalized often leads, in a linear
fashion, to being recruited to participate in terrorist acts, this model has been
criticized as oversimplified: there is no standard pattern in which increasingly
impassioned political or religious views lead to acts of terrorism. Faiza Patel
writes:
Overall, the available research does not support the view that Islam
drives terrorism or that observing the Muslim faith—even a particularly
stringent or conservative variety of that faith—is a step on the path to
violence. In fact, that research suggests the opposite: Instead of
promoting radicalization, a strong religious identity could well serve to
inoculate people against turning to violence in the name of Islam.
Faiza Patel, Brennan Center for Justice, Rethinking Radicalization 10 (2011).
58.
Mark S. Hamm, Terrorist Recruitment in American Correctional
Institutions: An Exploratory Study of Non-Traditional Faith Groups 27 (2007).
59.
Id. at 28.

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involvement in recruitment and radicalization efforts of other
inmates through extremist, violence-oriented indoctrination methods
to intimidate or coerce others.”60
The radicalization and recruitment justification is also
evident in statements made by lawmakers and government officials
in the years before the creation of CMUs. During an October 2003
Senate Judiciary Committee hearing entitled Terrorism: Growing
Wahhabi Influence in the United States, Senator Chuck Schumer
asserted: “[Wahhabi] imams flood the prisons with anti-American,
pro-bin Laden videos, literature, sermons, and tapes . . . . [T]he
Wahhabi influence is inculcating [prisoners] with the same kind of
militant ideas that drove the 9/11 hijackers to kill thousands of
Americans.”61 In 2006, the Director of the Federal Bureau of
Investigation asserted: “Prisons are . . . fertile ground for extremists.
Inmates may be drawn to an extreme form of Islam because it may
help justify their violent tendencies. These persons represent a
heightened threat because of their criminal histories, their propensity
for violence, and their contacts with fellow criminals.”62
60.
Fed. Bureau of Prisons, U.S. Dep’t of Justice, Notice of Transfer to Avon
Twitty, May 30, 2007; Fed. Bureau of Prisons, U.S. Dep’t of Justice, Notice of
Transfer to Royal Jones, June 17, 2008 (both on file with author), both available
as Exhibit E to Aref Complaint, supra note 19.
61.
Terrorism: Growing Wahhabi Influence in the United States: Hearing
Before the Subcommittee on Terrorism, Technology, and Homeland Security of the
Senate Committee on the Judiciary, 108th Cong. 6 (2003) (statement of Senator
Schumer, Member, Senate Committee on the Judiciary). But see Radical Islamic
Influence of Chaplaincy of the U.S. Military and Prisons: Hearing before the
Subcommittee on Terrorism, Technology and Homeland Security of the Senate
Committee on the Judiciary, 108th Cong. 32 (2003) [hereinafter Radical Islamic
Influence] (statement of Paul E. Rogers, President, American Correctional
Chaplains Association) (“Regarding reports of prisons being infiltrated by
terrorists or terrorist organizations via prison religious programs, I think these
have been blown out of proportion. Yes, some relatively minor situations have
been identified, but they were stopped before escalating to dangerous levels.”).
62.
Robert S. Mueller, III, Director, Fed. Bureau of Investigation, Remarks
at The City Club of Cleveland, Ohio (June 23, 2006); see also Attorney General
Alberto R. Gonzales, Prepared Remarks at the World Affairs Council of
Pittsburgh on Stopping Terrorists Before They Strike: The Justice Department’s
Power of Prevention (Aug. 16, 2006) (“The threat of homegrown terrorist cells—
radicalized online, in prisons and in other groups of socially isolated souls—may
be as dangerous as groups like al Qaeda, if not more so. They certainly present
new challenges to detection.”); Radical Islamic Influence, supra note 61, at 9
(statement of John S. Pistole, Assistant Director, Counterterrorism Division, Fed.
Bureau of Investigation) (“Recruitment of inmates, we believe, within the prison
system will continue to be a problem throughout our country. Inmates are often
ostracized, abandoned by, or isolated from their family and friends, leaving them

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III. CONFINEMENT IN A COMMUNICATION MANAGEMENT UNIT
A. Designation to a Communication Management Unit
According to a BOP memorandum, CMU placement occurs on
the basis of the following criteria:
(a) The inmate’s current offense(s) of conviction, or offense
conduct, included association, communication, or
involvement related to international or domestic
terrorism;
(b) The inmate’s current offense(s) of conviction, offense
conduct, or activity while incarcerated indicates a
propensity to encourage, coordinate, facilitate, or
otherwise act in furtherance of, illegal activity though
communications with persons in the community;
(c) The inmate has attempted, or indicates a propensity, to
contact victims of the inmate’s current offense(s) of
conviction;
(d) The inmate committed prohibited activity related to
misuse/abuse of approved communication methods while
incarcerated; or
(e) There is any other evidence of a potential threat to the
safe, secure, and orderly operation of prison facilities, or
protection of the public, as a result of the inmate’s
unmonitored communication with persons in the
community.63
Within five days after being transferred to a CMU, inmates
receive a document captioned “Notice to Inmate of Transfer to

susceptible to recruitment. Membership in the various radical groups offer
inmates protection, positions of influence, and a network they can correspond with
both inside and outside of prison.”); Muslim Religious Services Providers, supra
note 4, at 8 (“The BOP Muslim chaplains stated that some inmates are radicalized
in prison by other inmates . . . Other chaplains told us that convicted terrorists
from the 1993 World Trade Center bombing were put into their prisons’ general
population where they radicalized inmates and told them that terrorism was part
of Islam.”).
63.
Review of Inmates, supra note 14, at 1. BOP’s pending proposed rule on
CMUs sets forth the same criteria for CMU designation. Communication
Management Units, 75 Fed. Reg. 17,324, 17,328 (proposed Apr. 6, 2010) (to be
codified at 28 C.F.R. pt. 540).

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Communication Management Unit.”64 The Notice of Transfer is a
one-page form, which leaves enough blank space for only a short
paragraph explaining the basis for CMU designation.65 A fairly
typical Notice of Transfer states: “Your current offenses of conviction
include Providing Material Support & Resources to a Foreign
Terrorist Organization, & Conspiracy to Use a Weapon of
Mass Destruction. Your offense conduct included significant
communication, association and assistance to Jaish-e-Mohammed
(JeM), a group which has been designated as a foreign terrorist
organization.”66 A prisoner assigned to a CMU may file an
administrative appeal through BOP’s Administrative Remedy
Program (the general avenue for prisoner grievances) but is not
entitled to contest CMU placement through a live hearing.67 The
Administrative Remedy Program is a purely written process in which
BOP prisoners may submit complaints to BOP officials and appeal
the rejection of complaints through the chain of command, and
ultimately to the agency’s Office of General Counsel.68
Releasing a prisoner from a CMU involves a complicated
review process, and ultimately the approval of the appropriate BOP
Regional Director. Lower-level staff members working in a CMU
first make a recommendation to the warden of the institution where
the prisoner is incarcerated.69 The warden then decides whether
to forward the recommendation to BOP’s Counterterrorism
Unit, a division with functions that include “identifying inmates
involved in terrorist activities” and monitoring “terrorist inmate
communications.”70 The Counterterrorism Unit then forwards its
own recommendation to the Regional Director “for further review

64.
Terre Haute CMU Institution Supplement, supra note 15, Attachment
A, at 1; Aref v. Holder, 774 F. Supp. 2d 147, 154 (D.D.C. 2011).
65.
Terre Haute CMU Institution Supplement, supra note 15, Attachment
A, at 1.
66.
Fed. Bureau of Prisons, Notice of Transfer to Yassin Muhiddin Aref 1
(2007) (on file with author), available as Exhibit E to Aref Complaint, supra
note 19.
67.
Terre Haute CMU Institution Supplement, supra note 15, at 5; Fed.
Bur. of Prisons, U.S. Dep’t of Justice, Institution Supplement MAR-5270.07A, at 4
(Mar. 20, 2008) [hereinafter First Marion CMU Institution Supplement]; Second
Marion CMU Institution Supplement, supra note 18, at 5; 28 C.F.R. § 542.10–
542.19 (2006) (regulations regarding Administrative Remedy Program).
68.
28 C.F.R. § 542.10–542.19 (2006).
69.
Review of Inmates, supra note 14, at 2.
70.
The Bureau Celebrates 80th Anniversary, Fed. Bureau of Prisons,
http://www.bop.gov/about/history/first_years.jsp (last visited Sep. 9, 2012).

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and consideration.”71 The Regional Director “has final authority to
approve an inmate’s re-designation from a CMU.”72

B. Conditions in Communication Management Units
CMU inmates are subject to far greater restrictions on
communications than nearly all other prisoners in BOP custody. All
told, a prisoner assigned to a CMU may make two fifteen-minute
telephone calls per week, may see visitors for eight hours per month,
cannot receive contact visits, will remain in the unit at virtually all
times, will never interact with non-CMU prisoners, and will never
speak a word without monitoring by government officials. A pending
proposed regulation would restrict communications even further. The
current restrictions, and those proposed in the pending regulation,
are discussed below in greater detail.

1. Telephone Calls
Current, former, and proposed future rules regarding CMUs
all significantly restrict prisoners’ phone usage. Inmates may make
only two fifteen-minute telephone calls each week (with the exception
of legal calls with attorneys).73 A more restrictive limitation applied
when BOP established the first CMU: CMU prisoners could make
only one fifteen-minute call each week.74 The pending regulation
regarding CMUs would allow BOP officials to limit prisoners to one
fifteen-minute telephone call per month.75
In contrast to these strict limitations, non-CMU prisoners in
BOP custody generally are allowed 300 minutes of outgoing calls per
month, assuming they have sufficient funds in their inmate accounts
to pay for such calls.76 For non-CMU prisoners, the warden of each

71.
Review of Inmates, supra note 14, at 2. The Bureau established the
Counterterrorism Unit in 2006. The units’ functions include “identifying inmates
involved in terrorist activities” and monitoring “terrorist inmate
communications.” The Bureau Celebrates 80th Anniversary, supra note 70.
72.
Id.
73.
Aref v. Holder, 774 F. Supp. 2d 147, 154 (D.D.C. 2011).
74.
Id. at 154 n.2.
75.
Communication Management Units, 75 Fed. Reg. 17,324, 17,328
(proposed Apr. 6, 2010) (to be codified at 28 C.F.R. pt. 540).
76.
See Fed. Bureau of Prisons, U.S. Dep’t of Justice, Program Statement
5264.08: Inmate Telephone Regulations 14 (2008), available at http://www.bop.gov
/policy/progstat/5264_008.pdf.

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facility also has discretion to allow an inmate to place outgoing calls
exceeding 300 minutes per month.77

2. Visitation
CMU prisoners are permitted to see their visitors only
thorough non-contact visits, meaning the prisoner and the visitor sit
in separate rooms partitioned by glass and communicate by speaking
through telephone receivers.78 In contrast, most BOP prisoners sit in
the same room as their visitors. BOP’s general visiting room
procedures state: “[i]n most cases, handshakes, hugs, and kisses (in
good taste) are allowed at the beginning and end of a visit.”79
According to the complaint in Aref v. Holder, a challenge to
CMUs brought by attorneys at the Center for Constitutional Rights
(“CCR”), the space where non-contact visits with friends and family
occur is “tiny, cramped, and poorly ventilated.”80 The complaint in
Aref alleges that the denial of contact visits has devastating effects on
the families of some CMU prisoners:
More than anything, the lack of physical
contact is devastating to the younger children [of
Kifah Jayyousi, a CMU prisoner]. At the end of their
first visit, [his] youngest daughter, then ten years old,
screamed that she wanted to hug her father, and
began to cry uncontrollably. [Mr. Jayyousi’s wife]
tried to calm her daughter down, hugging her and
saying that it was the same as her father doing so.
Her daughter pushed her away and screamed for her
father, who began crying as well as he was forced to
watch his family’s pain and was unable to comfort
them.81

77.
Id. at 9.
78.
Terre Haute CMU Institution Supplement, supra note 15, at 2 (stating
that visits will be “conducted using non-contact facilities (i.e., secure partitioned
rooms, telephone voice contact)”); Aref, 774 F. Supp. 2d at 154.
79.
Fed. Bureau of Prisons, U.S. Dep’t of Justice, Visiting Room
Procedures:
General
Information,
http://www.bop.gov/inmate_locator/
procedures.jsp (last visited Oct. 9, 2012). The one exception to the rule against
contact visits for CMU prisoners is that contact visits with attorneys are
permissible. Terre Haute CMU Institution Supplement, supra note 15, at 2; Aref,
774 F. Supp. 2d at 154.
80.
Aref Complaint, supra note 19, at 65.
81.
Id. at 65–66.

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Designation to a CMU also limits the duration of visits. When
BOP established the first CMU, prisoners could receive only two
visits per month, with each visit lasting two hours or less.82 The
Bureau later increased the limit to eight hours of visitation per
month, with no single visit permitted to exceed four hours.83 The
pending proposed rule, however, would permit officials to restrict
visitation to a one hour-long visit per month.84
In contrast to these caps on visitation hours for CMU
prisoners, no national policy limits the number or duration of visits
that non-CMU prisoners in BOP custody may receive. National
policy, instead, grants each warden the discretion to establish the
extent of visitation at each institution.85 In practice, virtually all
prisoners in BOP custody are permitted greater visitation hours than
CMU prisoners. For example, even the Federal Supermax prison in
Florence, Colorado, the highest-security prison in the United States,
allows inmates five monthly visits, each of which may last up to seven
hours.86
The location of the CMUs imposes an additional burden on
visitation. BOP generally attempts to assign a prisoner to a facility
within 500 miles of the address where the prisoner expects to reside
upon release.87 This policy presumably exists to promote community
ties and reduce the distance family members must travel to visit
loved ones in prison. BOP, however, operates only two CMUs, and
they are located near each other (in Terre Haute, Indiana and
Marion, Illinois).88 As a result, any prisoner designated to a CMU
must be confined in one of these two midwestern locations, and many
family members (such as those who live on the East Coast or West
Coast) must travel distances greatly exceeding 500 miles to visit
CMU prisoners.
82.
Benkahla Complaint, supra note 19, at 11.
83.
Aref Complaint, supra note 19, at 19.
84.
Communication Management Units, 75 Fed. Reg. 17,324, 17,327
(proposed Apr. 6, 2010) (to be codified at 28 C.F.R. pt. 540).
85.
Fed. Bureau of Prisons, U.S. Dep’t of Justice, Program Statement
5267.08: Visiting Regulations, at 5 (2006), available at http://www.bop.gov/
policy/progstat/5267_008.pdf.
86.
Fed. Bureau of Prisons, U.S. Dep’t of Justice, Institution Supplement
FLM 5267.08B, at 2 (2011). These are non-contact visits. Id. at 1.
87.
Fed. Bureau of Prisons, U.S. Dep’t of Justice, Designations, available at
http://www.bop.gov/inmate_programs/designations.jsp. (“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.”).
88.
Communication Management Units, 75 Fed. Reg. at 17,324.

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Finally, prisoners in CMUs initially were not allowed to see
visitors on weekends.89 Prohibiting weekend visits is difficult for
family members who must report to work, and children who must
attend school, during the week. Most BOP prisoners can receive
weekend visits; indeed, a federal regulation mandates that BOP allow
weekend visits.90 After the filing of the complaint in the Benkahla
litigation, which noted that BOP’s prohibition on weekend visits
violated the regulation,91 BOP changed course and now allows CMU
prisoners to see visitors on weekdays and Sundays.92

3. Written Communication
The Bureau does not limit the volume of letters and email
correspondence that CMU prisoners may send and receive. Like other
BOP inmates, CMU prisoners may send and receive email
correspondence through the Trust Fund Limited Inmate Computer
System (“TRULINCS”), provided they pay the applicable fees.93
Likewise, neither national BOP policy nor the current rules
governing CMUs limit the amount of mail an inmate may send or
receive.94
CMU prisoners have extensive access to written
correspondence, but as the Complaint in Aref v. Holder asserts,
written communication “does not substitute for physical contact.”
Such contact is important to “the maintenance of close family
relationships, especially those between husbands and wives, and
parents and children. With respect to young children, it is the only
means of effective association.”95

89.
Aref v. Holder, 774 F. Supp. 2d 147, 154 n.3 (D.D.C. 2011).
90.
28 C.F.R. § 540.42 (2006).
91.
Benkahla Complaint, supra note 19, at 11.
92.
Aref, 774 F. Supp. 2d at 154.
93.
Fed. Bureau of Prisons, U.S. Dep’t of Justice, TRULINCS FAQs,
http://www.bop.gov/inmate_programs/trulincs_faq.jsp (describing the TRULINCS
system); Terre Haute CMU Institution Supplement, supra note 15, at 1 (no
provision limiting email correspondence); First Marion CMU Institution
Supplement, supra note 67, at 1 (no provision limiting email correspondence).
94.
Fed. Bureau of Prisons, U.S. Dep’t of Justice, Program Statement
5265.14: Correspondence (2011), available at http://www.bop.gov/policy/
progstat/5265_014.pdf; Terre Haute CMU Institution Supplement, supra note 15,
at 1 (no provision limiting mail); First Marion CMU Institution Supplement,
supra note 67, at 1 (no provision limiting mail).
95.
Aref Complaint, supra note 19, at 16.

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In contrast to the current rules, the pending proposed
regulation would severely limit written communication for CMU
prisoners. With exceptions for correspondence with persons such as
attorneys, the proposed rule states that letters “may be limited to
three pieces of paper (not larger than 8.5 x 11 inches), double-sided
writing permitted, once per calendar week, to and from a single
recipient . . . .”96 The proposed rule also appears to authorize the
elimination of all email correspondence by CMU prisoners.97
4. Monitoring
Despite the existence of authority to monitor nearly every
contact—including written correspondence, telephone conversations,
and visits—between all BOP prisoners and anyone (except attorneys)
in the outside world,98 the Bureau does not in practice monitor most
communications. For most prisoners, a limited number of
communications are monitored, largely at random.99 In the case of
CMU prisoners, however, BOP fully exercises its monitoring
authority. In a CMU, every communication made by a prisoner,
except with an attorney, is actively monitored.100 BOP also records all
conversations among prisoners that occur in CMUs through cameras
96.
Communication Management Units, 75 Fed. Reg. 17,324, 17,328
(proposed Apr. 6, 2010) (to be codified at 28 C.F.R. pt. 540).
97.
The proposed rule makes no mention of email. Id. at 17,328–29.
Combined with the statement, “[w]ritten correspondence may be limited to three
[double-sided] pieces of paper . . . once per calendar week, to and from a single
recipient,” the absence of any reference to email suggests that email
communication may be eliminated if the proposed rule goes into effect. Id. at
17,328.
98.
28 C.F.R. § 540.102 (2012) (“The Warden shall establish procedures
that enable monitoring of telephone conversations on any telephone located
within the institution, said monitoring to be done to preserve the security and
orderly management of the institution and to protect the public.”); id. § 540.14(a)
(“Institution staff shall open and inspect all incoming general correspondence.
Incoming general correspondence may be read as frequently as deemed necessary
to maintain security or monitor a particular problem confronting an inmate.”); id.
§ 540.51(h) (“The Warden may establish procedures to enable monitoring of the
visiting area, including restrooms located within the visiting area.”); id. §§
540.102, 540.2(c), 540.18(a); Fed. Bureau of Prisons, U.S. Dep’t of Justice,
Program Statement 5267.08: Visiting Regulations, at 10 (2006), available at
http://www.bop.gov/policy/progstat/5267_008.pdf.
99.
Monitoring of Mail, supra note 44, at 9 n.41.
100.
Communication Management Units, 75 Fed. Reg. at 17,325 (stating
that CMU prisoners will be subject to “complete monitoring of telephone use,
written correspondence, and visiting”); Terre Haute CMU Institution Supplement,
supra note 15, at 2 (stating that all calls and visits will be “live-monitored by
staff”).

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and listening devices, some of which are hidden.101 This is not the
case in the vast majority of BOP facilities, which lack the equipment
for monitoring cellblock conversations.102
5. Segregation from non-CMU Prisoners
The Bureau prevents prisoners housed in CMUs from having
any contact with non-CMU prisoners. The Institution Supplement
that established the Terre Haute CMU describes the unit as “selfcontained” and stresses that contact between CMU prisoners and
non-CMU prisoners cannot occur, even when a CMU prisoner must
exit the unit for a medical visit: “Specialized services may be provided
in the institution’s main health services units as needed, under
conditions which ensure [the CMU] inmate’s lack of contact with non[CMU] inmates.”103 In contrast, for most non-CMU prisoners, it is
entirely commonplace to come into contact with inmates from other
units, during activities such as classes, meals, medical visits, and
religious programming.
6. Summary of Communication Restrictions
The table below summarizes the communication restrictions
CMU prisoners face, as compared to most BOP inmates.

101.
Lindh Plaintiffs’ S.J. Memorandum, supra note 46, at 5 (“[T]here are
cameras and listening devices throughout the [Terre Haute CMU]. Some of these
are visible to prisoners, and some are not.”) (internal citations omitted); Carrie
Johnson & Margot Williams, Guantanamo North: Inside Secretive U.S. Prisons,
Nat’l Pub. Radio, Mar. 3, 2011, available at http://www.npr.org/2011/03/03
/134168714/guantanamo-north-inside-u-s-secretive-prisons (“Every word [CMU
prisoners] speak is picked up by a counterterrorism team that eavesdrops from
West Virginia.”).
102.
Monitoring of Mail, supra note 44, at vii (stating that prior to the
establishment of CMUs, the Bureau “did not monitor the cellblock conversations
of SAMs inmates or the visiting room conversations of international terrorist and
other high-risk inmates who were not under SAMs. In addition, a lack of audio
recording equipment was a further barrier to recording cellblock and visiting room
conversations at most institutions”).
103.
Terre Haute CMU Institution Supplement, supra note 15, at 3.

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Typical
BOP
Prisioner

CMU
Prisoner
(initial
restrictions)

CMU
Prisoner
(current
restrictions

CMU
Prisoner
(restrictions
under
proposed
rule)

Monitoring of
telephone
calls

Sporadic

Total

Total

Total

Contact visits

Yes

No

No

No

Visitation
time

Varies;
often
more than
35 hours
per month
total
Yes

Two monthly
visits, each
two hours or
less

Two
monthly
visits, each
four hours or
less

One monthly
visit, one
hour or less

No

Yes

Yes

Less than
500 miles
where
possible
Sporadic

Often exceeds
500 miles

Often
exceeds 500
miles

Often exceeds
500 miles

Total

Total

Total

No
specific
limitation
Sporadic

No specific
limitation

No specific
limitation

Total

Total

One threepage letter
per week
Total

No
specific
limitation
No

No specific
limitation

No specific
limitation

Not allowed

Total

Total

Total

Yes

No

No

No

Weekend
visits
Distance
family travels
for visits
Monitoring of
visits
Volume of
letters
Monitoring of
letters
Email
Monitoring of
cellblock
conversations
Contact with
prisoners
from other
units

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IV. LEGAL FLAWS IN THE OPERATION OF COMMUNICATION
MANAGEMENT UNITS
A. Lack of Notice-and-comment Rulemaking: The Administrative
Procedure Act
The Bureau issued the Institution Supplements that
established the Terre Haute and Marion CMUs without engaging in
notice-and-comment rulemaking.104 Under the Administrative
Procedure Act (“APA”), whether notice-and-comment procedures are
required depends on the nature of the rule being promulgated. When
issuing a “legislative rule,” an agency must engage in notice-andcomment rulemaking, and a legislative rule promulgated without
such procedures is invalid.105 An agency may, however, issue nonlegislative rules (such as interpretive rules or general statements of
policy) without notice-and-comment procedures.106 Whether the
Bureau violated the APA in establishing CMUs depends, therefore,
on the type of rule contained in the two Institution Supplements.
Although “[t]he distinction between legislative rules and
interpretative rules or policy statements has been described at
various times as ‘tenuous,’ ‘fuzzy,’ ‘blurred,’ and perhaps most
picturesquely, ‘enshrouded in considerable smog,’”107 the rules
contained in the Institution Supplements that establish CMUs
appear to constitute legislative rules, as discussed below. It follows

104.
Terre Haute CMU Institution Supplement, supra note 15, at 1; First
Marion CMU Institution Supplement, supra note 67, at 1.
105.
5 U.S.C. § 553(b) (2006); Lincoln v. Vigil, 508 U.S. 182, 195 (1993).
106.
Lincoln, 508 U.S. at 196. While other exceptions to the notice-andcomment requirement exist, the government has put forward only the interpretive
rule and general statement of policy exception in litigation regarding CMUs.
Motion To Dismiss at 39–43, Aref v. Holder, No. 10-0539, 774 F. Supp. 2d 147
(D.D.C. 2011); Brief in Support of Motion to Dismiss at 10–20, Benkahla v. Fed.
Bureau of Prisons, No. 2:09-CV-00025 (S.D. Ind. Nov. 17, 2009).
107.
Comty. Nutrition Inst. v. Young, 818 F.2d 943, 946 (D.C. Cir. 1987)
(quoting Chisholm v. FCC, 538 F.2d 349, 393 (D.C. Cir. 1976); Pacific Gas &
Electric Co. v. FPC, 506 F.2d 33, 38 (D.C. Cir. 1974); Kevin W. Saunders,
Interpretative Rules With Legislative Effect: An Analysis and a Proposal For
Public Participation, 1986 Duke L.J. 346, 352; Noel v. Chapman, 508 F.2d 1023,
1030 (2d Cir. 1975)).

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that BOP’s failure to engage in notice-and-comment rulemaking
violated the APA.108

1. The Interpretive Rules Exception to the Notice-andcomment Requirement
The Seventh Circuit has stated that “[a]n interpretive rule is
a statement as to what [an] administrative officer thinks [a] statute
means.”109 When an agency derives a rule through “reasoned
statutory interpretation, with reference to the language, purpose, and
legislative history of the statute,”110 or engages in “cloistered,
appellate-court type reasoning,”111 the rule will be deemed
interpretive. Likewise, the D.C. Circuit has stated that an
interpretive rule “must be interpreting something. It must derive a
proposition from an existing document whose meaning compels or
logically justifies the proposition[,] . . . . [and] [t]he substance of the

108.
Because the two CMUs are located in Southern Indiana and Southern
Illinois, and because the decision to establish these units emanated from the
Bureau’s headquarters in Washington, D.C., jurisdiction and venue in an APA
suit would be proper in the United States District Courts for the Southern District
of Illinois, the Southern District of Indiana, or the District of Columbia. See 28
U.S.C. § 1391(e)(1) (2006) (defining proper venue for civil actions against federal
officials). Thus, the analysis below relies mainly on Seventh Circuit and D.C.
Circuit jurisprudence. The principal cases raising APA challenges to CMUs,
Benkahla v. Fed. Bureau of Prisons, Aref v. Holder, and Lindh v. Warden, were
indeed filed in the Southern District of Indiana and the District of Columbia.
109.
Bd. of Trs. of Knox Cnty. Hosp. v. Shalala, 135 F.3d 493, 501 (7th Cir.
1998). See also Mt. Sinai Hosp. v. Shalala, 196 F.3d 703, 711 (7th Cir. 1999)
(noting that an interpretive rule “simply states what the administrative agency
thinks the statute means”) (internal citation omitted); Metro. Sch. Dist. of Wayne
Twp. v. Davila, 969 F.2d 485, 490 (7th Cir. 1992) (finding that a letter issued by
an agency was an interpretive rule where the letter used “the classic tools a
reviewing body, be it a court or agency, relies upon to determine the meaning of a
statute”) (citation omitted); Allied Van Lines, Inc. v. ICC, 708 F.2d 297, 299 (7th
Cir. 1983) (finding that an agency statement constituted an interpretive rule
where “[t]he statement consisted primarily of an assessment of the jurisdictional
reach of [a regulation] in light of the language and legislative history of the
[Household Goods Transportation Act of 1980]”); Novelty, Inc. v. Tandy, No. 041502, 2008 WL 3835655, at *12 (S.D. Ind. Aug. 7, 2008) (“The rule is interpretive
if the agency used appellate-court type reasoning, including reference to sources
such as the text of the statute and regulations, the statute’s legislative history,
and case law.”) (citations omitted).
110.
Davila, 969 F.2d at 490.
111.
Hoctor v. U.S. Dep’t of Agric., 82 F.3d 165, 171 (7th Cir. 1996).

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derived proposition must flow fairly from the substance of the
existing [statute or regulation].”112
On the other hand, where a rule results not from the
interpretation of a statute but from an agency’s exercise of policymaking discretion, the rule is legislative. Thus, issuing a legislative
rule requires an agency to exercise its “delegated policy expertise.”113
As the D.C. Circuit has stated, “a rule is legislative if it is based on an
agency’s power to exercise its judgment as to how best to implement a
general statutory mandate, and if it has the binding force of law. By
contrast, an interpretative rule is based on specific statutory
provisions . . . .”114
These criteria for differentiating between legislative and
interpretive rules flow from the purpose of notice-and-comment
rulemaking. Public comment is more likely to be important when an
agency is making a policy decision, rather than when it is
determining the legal requirements of a statute. As one court has
stated, “[t]he interpretive rule exception [to notice-and-comment
rulemaking] reflects the idea that public input will not help an
agency make the legal determination of what the law already is.”115
In contrast, when agency officials make discretionary policy
choices, they must “give members of the public an opportunity to
communicate their concerns and suggestions to agencies that have

112.
Central Texas Tel. Coop. v. FCC, 402 F.3d 205, 212 (D.C. Cir. 2005)
(internal citation omitted); See also Pickus v. U.S. Bd. of Parole, 507 F.2d 1107,
1113 (D.C. Cir. 1974) (“As the word interpretive suggests . . . interpretive rules
consist of administrative construction of a statutory provision on a question of law
reviewable in the courts.”) (internal citation omitted).
113.
Allied Van Lines, 708 F.2d at 300.
114.
Kelley v. EPA, 15 F.3d 1100, 1108 (D.C. Cir. 1994) (quotations
omitted). See also Dia Nav. Co. v. Pomeroy, 34 F.3d 1255, 1264 (3d Cir. 1994) (“If .
. . the rule is based on an agency’s power to exercise its judgment as to how best to
implement a general statutory mandate, the rule is likely a legislative one.”)
(internal citation omitted); Chamber of Commerce v. OSHA, 636 F.2d 464, 469
(D.C. Cir. 1980) (holding that the rule was legislative because the agency made a
“policy decision” not mandated by Congress); Novelty, Inc. v. Tandy, No. 04-1502,
2008 WL 3835655, at *12 (S.D. Ind. Aug. 7, 2008) (“If the agency created a specific
rule from a vague standard . . . the rule is legislative.”) (internal citation omitted);
John F. Manning, Nonlegislative Rules, 72 Geo. Wash. L. Rev. 893, 920 (2004)
(“[A]n interpretive rule cannot reflect an agency’s exercise of independent
policymaking discretion.”).
115.
Dismas Charities, Inc. v. U.S. Dep’t of Justice, 401 F.3d 666, 680 (6th
Cir. 2005).

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been delegated legislative authority but are not elected by the
public.”116
Applying these criteria, the CMU Institution Supplements
constitute legislative rules, rather than interpretive rules. Nothing on
the face of the Institution Supplements suggests an attempt to
interpret the requirements of a statute. The Institution Supplements
merely list the rules that govern CMUs, with no “reference to the
language, purpose, and legislative history of [any] statute,”117 nor any
“cloistered, appellate-court type reasoning.”118 While several statutes
afford BOP broad discretion to operate the federal penal system, no
such law can be interpreted to require the establishment of CMUs.
For example, Title 18 U.S.C. § 4042(a)(2) grants BOP authority to
“provide suitable quarters and provide for the safekeeping, care, and
subsistence of all persons charged with or convicted of offenses
against the United States,” but that provision does not require BOP
to establish any particular type of unit.119 Along similar lines, Title 18
U.S.C. § 4042(a)(1) states that BOP shall “have charge of the
management and regulation of all Federal penal and correctional
institutions,” but such general statutory authority cannot be
interpreted to require BOP to establish CMUs.120 Rather, in
116.
Novelty, Inc., 2008 WL 3835655, at *9. See also Batterton v. Marshall,
648 F.2d 694, 703 (D.C. Cir. 1980) (“The essential purpose of according . . . noticeand-comment opportunities is to reintroduce public participation and fairness to
affected parties after governmental authority has been delegated to
unrepresentative agencies.”).
117.
Metro. Sch. Dist. of Wayne Twp. v. Davila, 969 F.2d 485, 490 (7th Cir.
1992) (quoting United Techs. Corp. v. EPA, 821 F.2d 714, 718 (D.C. Cir. 1987)).
118.
Hoctor v. U.S. Dep’t of Agric., 82 F.3d 165, 170 (7th Circ. 1996).
119.
18 U.S.C. § 4042(a)(2) (2006).
120.
Id. §4042(a)(1). Arguments that the Institution Supplements
“interpret” other relevant statutory provisions are equally unconvincing. Title 18
U.S.C. § 4081 requires federal prisons to be “so planned and limited in size as
to . . . assure the proper classification and segregation of Federal prisoners” based
on various broad factors, including “the nature of the offenses committed, the
character and mental condition of the prisoners, and such other factors as should
be considered in providing an individualized system of discipline, care, and
treatment.” Id. § 4081. This provision confers broad discretion to designate
prisoners to particular institutions but does not impose a specific requirement
that BOP create CMUs. Title 18 U.S.C. § 3621(b) gives BOP discretion to
“designate the place of the prisoner’s imprisonment” based on various factors. Id.
§ 3621(b). Again, nothing in the statute can be viewed as imposing a specific
requirement that BOP create a CMU. Finally, Title 18 U.S.C. § 4001(b)(1) states
that the “[t]he control and management of Federal penal and correctional
institutions, except military or naval institutions, shall be vested in the Attorney
General, who shall promulgate rules for the government thereof . . .” Id. §

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establishing CMUs, BOP reached a policy decision based on the
agency’s view of how best to manage federal prisons—not a legal
conclusion that a statute mandated the creation of these new units.
Moreover, the momentous decision to create an unprecedented type of
unit, based on administrative discretion rather than a statutory
command, is precisely the sort of agency policymaking for which
notice-and-comment procedures were designed.121

2. The General Statements of Policy Exception to the
Notice-and-Comment Requirement
Like interpretive rules, “general statements of policy” do not
require notice-and-comment rulemaking under the APA.122 Thus,
assuming the Institution Supplements cannot be classified as
interpretive rules, BOP could still avoid the notice-and-comment
requirement by showing that the Institution Supplements constitute
general statements of policy. The distinction between legislative rules
and general statements of policy turns on whether the provisions in
question bind the agency: Legislative rules are “intended to bind” the
agency, whereas a general statement of policy is “merely . . . a
tentative statement of the agency’s view.”123
The Institution Supplements cannot be classified as general
statements of policy because they express far more than tentative
views—they create binding rules for the establishment and operation
of CMUs. Whereas “[a] general statement of policy, like a press
release, presages an upcoming rulemaking or announces the course
which the agency intends to follow in future adjudications,”124 no one
could read the CMU Institution Supplements and conclude that they
leave open the decision whether or not to establish CMUs. Where an
agency’s statement is “laden with mandatory language,”125 as is the
case with the CMU Institution Supplements, the general statement of
4001(b)(1). Such general language cannot be interpreted to mandate the creation
of any particular unit.
121.
See supra notes 115–116 and accompanying text.
122.
5 U.S.C. § 553(b) (2006).
123.
Hoctor, 82 F.3d at 169. See also General Electric Co. v. EPA, 290 F.3d
377, 383 (D.C. Cir. 2002) (citing Appalachian Power Co. v. EPA, 208 F.3d 1015,
1023 (D.C. Cir. 2000) (stating that a rule cannot qualify as a mere statement of
policy if it “appears on its face to be binding”)).
124.
Batterton v. Marshall, 648 F.2d 694, 706 (D.C. Cir. 1980). See also
Am. Bus. Ass’n v. United States, 627 F.2d 525, 529 (D.C. Cir. 1988) (“A policy
statement announces the agency’s tentative intentions for the future.”).
125.
Cohen v. United States, 578 F.3d 1, 7 (D.C. Cir. 2009).

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policy exception does not apply. The Institution Supplements do not
say that BOP might create CMUs. The Terre Haute Institution
Supplement, for example, uses the word “will” forty-one times, and
courts have “given decisive weight to agencies’ use of mandatory
words like ‘will’ instead of permissive words like ‘may,’” in deciding
whether a provision has binding effect or is instead a general
statement of policy.126

3. An Ongoing Violation
Although two lawsuits, Benkahla v. Federal Bureau of Prisons
and Aref v. Holder, have challenged BOP’s failure to engage in noticeand-comment rulemaking, no court has yet ruled on whether BOP
violated the APA by establishing CMUs through Institution
Supplements. This is due, in part, to BOP’s assertion that the
challenges are moot because the agency is currently engaged in
notice-and-comment rulemaking. Recall that BOP issued a notice of
proposed rulemaking in 2006 but that no final rule was promulgated,
and the rulemaking apparently was abandoned.127 Shortly after
lawsuits brought by CCR and the ACLU were filed in 2009 and 2010,
BOP issued the 2010 NPRM, restarting the notice-and-comment
process. To date, no final rule has been promulgated. BOP contends,
however, that its attempt to restart the notice-and-comment process
renders CCR and the ACLU’s APA claims moot.128
In Aref v. Holder, the district court agreed with the BOP that
the APA claim was moot.129 This mootness holding, however, is based
upon an inapposite principle. The district court relied entirely upon
the doctrine that a superseding rule issued through proper noticeand-comment procedures moots a claim that a previous rule was
issued without notice-and-comment.130 That doctrine does not apply
in all circuits,131 but, more fundamentally, it is not relevant to the
126.
Id.
127.
See supra notes 11–19 and accompanying text.
128.
Aref v. Holder, 774 F. Supp. 2d 147, 171 (D.D.C. 2011).
129.
The court dismissed this claim without prejudice and stated that the
Plaintiffs could “renew such a claim in the event that the defendants again
abandon the rulemaking process.” Aref, 774 F. Supp. 2d at 171. The ACLU’s case
was voluntarily dismissed when the Plaintiff was transferred out of the Terre
Haute CMU. Order, Benkahla v. Fed. Bureau of Prisons, No. 2:09-CV-00025 (S.D.
Ind. Jul. 29, 2010).
130.
Aref, 774 F. Supp. 2d at 171.
131.
See Nat’l Res. Def. Council v. Nuclear Regulatory Comm., 680 F.2d
810, 813 (D.C. Cir. 1982) (stating that an agency’s promulgation of a superseding

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facts surrounding CMUs. BOP has merely begun a rulemaking
regarding CMUs and has not issued any final rule through noticeand-comment procedures.132 Because no final regulation has been
issued based on the comments received, CMUs continue to be
governed not by a rule informed by public input but by the two
Institution Supplements issued without notice-and-comment
procedures.133
Other factors also suggest that the APA claim is not moot.
First, BOP has a history of failing to follow through on the issuance of
a final regulation regarding CMUs. BOP not only abandoned the 2006
NPRM,134 but the agency also missed its own projected date for
promulgation of a final rule based on the 2010 NPRM. Specifically,
the Justice Department’s Fall 2010 Unified Regulatory Agenda stated
that a final rule would be issued by October 2011, but no rule has
been issued to date.135 This calls into question when, if ever, a final
rule will be promulgated.
Second, the government maintained in both the ACLU and
CCR cases that the APA does not require notice-and-comment
rulemaking because the Institution Supplements do not contain
legislative rules.136 At least one Circuit has held that in such a
situation—where an agency belatedly completes notice-and-comment
procedures but maintains in litigation that such procedures were
rule with proper notice-and-comment procedures mooted a claim that the agency
issued a prior rule without requesting or receiving comment). But see U.S. Steel
Corp. v. EPA, 595 F.2d 207, 215 (5th Cir. 1979) (stating that inviting and
receiving public comments after issuance of a rule does not moot a challenge to
improper procedures surrounding initial promulgation of the rule because, if postpromulgation public comment could create mootness, “[a]n agency that wished to
dispense with pre-promulgation notice-and-comment could simply do so, invite
post-promulgation comment, and republish the regulation before a reviewing
court could act.”); see also Hemp Indus. Ass’n v. DEA, 333 F.3d 1082, 1085 n.3
(9th Cir. 2003) (stating that a superseding rule promulgated through notice-andcomment procedures did not moot a challenge to the lack of such procedures
accompanying the issuance of the prior rule).
132.
See supra notes 11–19 and accompanying text.
133.
Id.
134.
Id.
135.
Office
of
Information
and
Regulatory
Affairs,
Unified
Regulatory Agenda, Communication Management Units (2010), available at
http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201010&RIN=1120AB48.
136.
Brief in Support of Motion to Dismiss at 1, Benkahla v. Fed. Bureau of
Prisons, No. 2:09-CV-00025 (S.D. Ind. Nov. 17, 2009); Aref v. Holder, 774 F. Supp.
2d 147, 170 (D.D.C. 2011).

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undertaken voluntarily and were not legally required—a challenge to
procedural deficiencies accompanying the issuance of the old rule
remains live.137 More broadly, when the government changes course
in the midst of litigation but maintains that its earlier actions were
not illegal, courts may reject claims of mootness because denials of
wrongdoing suggest that a prior course of conduct may be resumed.138

B. Denial of Congregate Prayer: The Religious Freedom
Restoration Act
In the Terre Haute CMU, Muslim prisoners are allowed to
pray as a group outside of their cells only once per week, during the
Friday Jumu’ah prayer.139 The Bureau requires these inmates to
perform all other prayers in their cells.140 The tenets of Islam,
however, dictate that the five daily prayers must occur in a group
setting, or, at minimum, that congregate prayer is preferable to
solitary prayer.141
In Lindh v. Warden, a case brought by the ACLU of Indiana
on behalf of prisoners in the Terre Haute CMU, the plaintiffs contend
that the refusal to allow greater opportunities for group prayer
violates the Religious Freedom Restoration Act (“RFRA”).142 While
137.
Conservation Law Found. v. Evans, 360 F.3d 21, 27 (1st Cir. 2004)
(holding that a challenge to an agency’s failure to follow rulemaking requirements
was not moot, despite the issuance of a superseding rule through proper
procedures, where the agency maintained in litigation that it followed such
procedures “[o]ut of an abundance of caution” but did not consider the procedures
to be required by law).
138.
The court in Sasnett v. Litscher stated that:
The state vigorously defends the old [prison] regulation as
justified by security concerns, and if this defense is sincere, as
we have no reason to doubt that it is, it implies a high
likelihood of returning to the old regulation unless that
regulation is enjoined. The probability of such a return is
sufficiently high to prevent us from deeming the case moot.
Sasnett v. Litscher, 197 F.3d 290, 291–92 (7th Cir. 1999), abrogated on other
grounds by Bridges v. Gilbert, 557 F.3d 541 (7th Cir. 2009); see also United States
v. W. T. Grant Co., 345 U.S. 629, 632 n.5 (1953) (“It is the duty of the courts to
beware of efforts to defeat injunctive relief by protestations of repentance and
reform, especially when abandonment seems timed to anticipate suit, and there is
probability of resumption.”).
139.
Lindh v. Warden, No. 2:09-CV-0215, 2012 WL 379737, at *3 (S.D. Ind.
Feb. 3, 2012).
140.
Id.
141.
Id. at *2.
142.
Id. at *4; see 42 U.S.C. §§ 2000bb–2000bb-4 (2006).

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conceding that legitimate security concerns preclude group prayer
during the hours when prisoners are locked in their cells, the
plaintiffs argue that they have a right to congregate in small groups
to pray during the hours when they are permitted to move freely
throughout the unit and to interact with other CMU prisoners.143
BOP, however, contends that prisoners should not be allowed to
pray in groups during these hours, except during the Friday
Jumu’ah prayer. 144
RFRA provides that no government entity shall “substantially
burden a person’s exercise of religion” unless such a burden is both
“in furtherance of a compelling governmental interest” and “the least
restrictive means of furthering that compelling governmental
interest.”145 In City of Boerne v. Flores, the Supreme Court struck
down RFRA as applied to state governments, holding that Congress
exceeded its power to enforce the Fourteenth Amendment against the
states.146 RFRA, however, continues to apply to the federal
government, including BOP.147
Where a prison rule limits religious practice, RFRA’s
compelling interest test imposes a stricter standard on the
government than the Free Exercise Clause of the federal
Constitution. Under the Free Exercise Clause, a prison regulation
limiting religious practice need only be reasonably related to a
legitimate penological interest.148 Nonetheless, even under RFRA’s
more exacting standard, in cases involving prisons and jails, courts
must afford “due deference to the experience and expertise of prison
and jail administrators in establishing necessary regulations and
procedures to maintain good order, security and discipline, consistent
with consideration of costs and limited resources.”149
143.
Plaintiffs’ Memorandum in Response and Opposition to Defendant’s
Second Cross-Motion for Summary Judgment and Reply Memorandum in Support
of Plaintiffs’ Second Motion for Summ. Judgment at 20–21, Lindh v. Warden, No.
2:09-CV-0215, 2012 WL 379737 (S.D. Ind. Feb. 3, 2012) [hereinafter Lindh
Plaintiffs’ S.J. Reply].
144.
Lindh, 2012 WL 379737, at *2.
145.
42 U.S.C. § 2000bb-1(a) & (b) (2006).
146.
521 U.S. 507, 536 (1997).
147.
Kikumura v. Hurley, 242 F.3d 950, 959 (10th Cir. 2001) (“[T]he
separation of powers concerns expressed in Flores do not render RFRA
unconstitutional as applied to the federal government.”).
148.
O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987) (citing Turner v.
Safley, 482 U.S. 78, 89 (1987)).
149.
Cutter v. Wilkinson, 544 U.S. 709, 723 (2005). Cutter addressed the
Religious Land Use and Institutionalized Persons Act (“RLUIPA”), which protects

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In Lindh, the district court denied both parties’ cross motions
for summary judgment in February 2012, finding two genuine issues
of material fact: (1) whether preventing prisoners from praying
together outside their cells imposes a substantial burden on religious
exercise, and (2) whether the government’s reasons for denial of
congregate prayer satisfy the compelling interest standard.150
Examining the substantial burden issue, the court underscored a
factual question relevant to whether prayer in individual cells should
be considered congregate: Are prisoners praying in their cells
“isolated or are [they] able to see and hear each other”?151 If prayer in
individual cells, during periods when cell doors are open, allows
enough interaction to be considered congregate, in the district court’s
view, no substantial burden has been imposed by preventing
prisoners from praying in groups outside their cells.152
Assuming that CMU prisoners are indeed unable to see and
hear each other while in their cells and that the government therefore
has imposed a substantial burden on congregate prayer, it appears
unlikely that BOP can show that its limitations on congregate prayer
constitute the least restrictive means of furthering a compelling
governmental interest.153 Because CMU prisoners are free throughout
much of the day to move about the unit and interact with each other,
the government faces the difficult task of showing that inmates
congregating to pray outside their cells presents a security danger not
implicated by other permissible gatherings.154
the free exercise rights of state, as opposed to federal, prisoners. Id. at 712. RFRA
and RLUIPA, however, create similar standards in cases involving religious
practice in prison: the government must demonstrate that a limitation is the least
restrictive means of furthering a compelling governmental interest. 42 U.S.C. §
2000bb-1 (RFRA provision); id. § 2000cc-1 (RLUIPA provision); see also Cutter,
544 U.S. at 716–17 (“To secure redress for inmates who encountered undue
barriers to their religious observances, Congress carried over from RFRA [to
RLUIPA] the ‘compelling governmental interest’/‘least restrictive means’
standard.”).
150.
Lindh v. Warden, No. 2:09-CV-0215, 2012 WL 379737, at *10 (S.D.
Ind. Feb. 3, 2012).
151.
Id. at *6.
152.
Id.
153.
42 U.S.C. § 2000bb-1(a) & (b) (2006).
154.
Lindh Plaintiffs’ S.J. Memorandum, supra note 46, at 1. As the
district court stated in denying the parties’ cross motions for summary judgment:
During the times [prisoners] are allowed out of their cells, CMU
inmates may gather together to talk, snack, play board games,
play cards, watch current events on television, exercise, and
even play semi-contact sports like basketball. They may

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The government has put forth three principal rationales for
prohibiting group prayer (with the exception of the Friday Jumu’ah
prayer), but none of these rationales are convincing. First, the
government cites a 2007 incident, during a fire at the prison, in which
CMU prisoners, who were engaged in group prayer, ignored an order
from correctional officers to stop praying and return to their cells.155
For their part, the prisoners contend that noise from a loud ceiling
fan prevented them from hearing the order, and they note that BOP,
perhaps viewing the incident as trivial, opted at the time not to
punish them for their alleged insubordination.156 More broadly, the
government puts forth this incident as evidence that CMU inmates’
efforts to pray as a group constitute an expression of defiance against
correctional officers and “an attempt on the part of . . . the CMU
Muslim inmates to write their own rules and take control from
staff.”157 The Bureau, however, already allows the Friday Jumu’ah
prayer to occur in congregation, and these group prayers have
occurred without incident since May 2007.158 This fact undercuts
the government’s claim that group prayer leads to unmanageable acts
of defiance.159
Second, the Bureau asserts that it lacks the staffing to
supervise more frequent group prayers.160 While the government
contends that all group prayers in a CMU must be continuously
supervised by correctional officers, BOP staff supervised a group
Ramadan observance in the CMU only intermittently.161 In any case,

congregate and discuss anything as long as their behavior is
good, they do not cause much noise, and the conversation
“doesn’t escalate into a confrontation.” Throughout the day,
they may return to their cells and can have another prisoner in
their cell at the same time. One thing they cannot do: recite the
daily Muslim prayers in a group.
Lindh, 2012 WL 379737, at *6 (citations omitted).
155.
Defendants’ Response Opposing Plaintiffs’ Second Motion for
Summary Judgment and Memorandum in Support of Defendants’ Second Cross
Motion for Summary Judgment at 37–38, Lindh v. Warden, No. 2:09-CV-0215,
2012 WL 379737 (S.D. Ind. Feb. 3, 2012) [hereinafter Lindh Defendants’ S.J.
Response].
156.
Lindh Plaintiffs’ S.J. Reply, supra note 143, at 17.
157.
Lindh Defendants’ S.J. Response, supra note 155, at 9.
158.
Lindh Plaintiffs’ S.J. Reply, supra note 143, at 26.
159.
Id. at 27.
160.
Lindh Defendants’ S.J. Response, supra note 155, at 42.
161.
Lindh Plaintiffs’ S.J. Reply, supra note 143, at 19, 29.

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all conversations occurring within a CMU are recorded with special
equipment.162
Third, the government argues that Muslims in the CMU
could use group prayer as an opportunity to radicalize other CMU
prisoners.163 However, the Bureau regularly permits CMU inmates to
move about the unit and converse with other CMU prisoners.164 Thus,
it is unclear how group prayer could create an additional risk of
radicalization, especially since the five daily prayers do not include a
sermon or other conversation.165 As the district court stated in
denying BOP’s motion for summary judgment, academic articles
submitted to the court by the government failed to “describe[] how
rote recitation of a scripted prayer leads to radicalization.”166
In short, while the district court denied both parties’ motions
for summary judgment, it appears probable that the plaintiffs
ultimately will prevail, unless worship conducted in separate cells
allows sufficient interaction to qualify as congregate prayer. The
government is unlikely to demonstrate that the group prayer
limitations imposed on CMU prisoners are “the least restrictive
means of furthering [a] compelling governmental interest,” as
RFRA requires.167

C. Failure to Consider Statutory Placement Factors: 18 U.S.C.
§ 3621
The decision to assign certain prisoners to CMUs also violates
the federal statute governing prisoner placement. Title 18 U.S.C.
§ 3621(b) sets forth the criteria that the BOP must consider in
deciding where to house prisoners:
Place of Imprisonment—The Bureau of Prisons shall
designate the place of the prisoner’s imprisonment.
The Bureau may designate any available penal or
correctional facility that meets minimum standards of
health and habitability established by the Bureau,
whether maintained by the Federal Government or
otherwise and whether within or without the judicial
district in which the person was convicted, that the
162.
See supra notes 44–46 and accompanying text.
163.
Lindh Defendants’ S.J. Response, supra note 155, at 14.
164.
Lindh Plaintiffs’ S.J. Memorandum, supra note 46, at 1.
165.
Lindh Plaintiffs’ S.J. Reply, supra note 143, at 28–29.
166.
Lindh v. Warden, No. 2:09-CV-0215, 2012 WL 379737, at *7 (S.D. Ind.
Feb. 3, 2012).
167.
42 U.S.C. § 2000bb-1(b).

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Bureau determines to be appropriate and suitable,
considering—
(1) the resources of the facility contemplated;
(2) the nature and circumstances of the
offense;
(3) the history and characteristics of the
prisoner;
(4) any statement by the court that imposed
the sentence—
(A) concerning the purposes for which
the sentence to imprisonment was
determined to be warranted; or
(B) recommending a type of penal
or
correctional
facility
as
appropriate; and
(5) any pertinent policy statement issued by
the Sentencing Commission pursuant to
section 994 (a)(2) of title 28.168
Section 3621 thus affords BOP wide discretion in deciding where to
house prisoners. At the same time, the statute limits such discretion
by requiring the Bureau to consider the five enumerated criteria in
making placement decisions.169 As one court has stated, “[a] common
sense reading of the text . . . makes clear that the BOP is required to
consider each factor.”170
Nonetheless, the author, who has reviewed numerous CMU
transfer notices, is unaware of any case in which such a notice
evidenced consideration of a “statement of the court that imposed the
sentence,” one of the mandatory factors enumerated in § 3621.171 It
appears that when BOP decides to transfer prisoners to CMUs, the
Bureau rarely—if ever—considers statements by the sentencing
court.172

168.
18 U.S.C. § 3621(b) (2006).
169.
Id.
170.
Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 245 (3d Cir. 2005).
171.
18 U.S.C. § 3621(b)(4) (2006).
172.
It is conceivable that BOP might base a transfer decision on factors
not specifically identified in a transfer notice, but such a practice would be
problematic. The transfer notice form states that placement is “based on the
following specific information.” Terre Haute CMU Institution Supplement, supra
note 15, Attachment A, at 1. The prisoner has the option to pursue an
administrative appeal of the transfer decision. See supra notes 67–68 and
accompanying text. For an appeal to be meaningful, the transfer notice must
identify all reasons for the initial decision.

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In one particularly egregious case, the BOP clearly ignored a
highly relevant statement by the sentencing judge. In United States
v. Benkahla, the sentencing judge granted a substantial departure
below the applicable range under the Sentencing Guidelines, writing
a detailed explanation of the reasons for the departure that included
the following comments:
Sabri Benkahla is not a terrorist. He does not share
the same characteristics or the conduct of a terrorist,
and in turn, he does not share the same likelihood of
recidivism, the difficulty of rehabilitation, or the need
for incapacitation. Again, outside of this case,
Defendant has not committed any other criminal acts
and there is no reason to believe he would ever
commit another crime after his release from
imprisonment. Defendant has engaged in model
citizenry, receiving a Master’s degree from The Johns
Hopkins University, volunteering as a national
elections officer in local, state, and national elections,
and demonstrating his dedication to his four-year-old
son. It is clear that, in the case of the instant
defendant, his likelihood of ever committing another
crime is infinitesimal.
...
As to the history and characteristics of the Defendant,
as stated above, it appears that Defendant has never
committed any criminal act outside the context of this
case. He is an American citizen, born and raised in
Northern Virginia. He attended a local high school
and college, excelling at both, and received a Master’s
degree at The Johns Hopkins University. He has a
significant number of strong, positive relationships
with friends, family, and the community. In fact, the
Court received more letters on Defendant’s behalf
than any other defendant in twenty-five years, all
attesting to his honor, integrity, moral character,
opposition to extremism, and devotion to civic duty.
With
respect
to
Defendant’s
history
and
characteristics, this factor weighs strongly in favor of
a sentence outside the guideline range.173
The judge’s explanation plainly constitutes a “statement of
the court that imposed the sentence . . . concerning the purposes for
which the sentence to imprisonment was determined to be
173.
2007).

United States v. Benkahla, 501 F. Supp. 2d 748, 759–61 (E.D. Va.

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warranted”174 under § 3621. Moreover, a statement such as this, and
particularly the finding that “Sabri Benkahla is not a terrorist,”
surely should have been considered in deciding whether to place him
in a CMU on the basis of alleged terrorist contacts. The Notice of
Transfer issued to Mr. Benkahla, however, noted alleged
communications with a terrorist group but contained no mention of
this rather extraordinary discussion by the sentencing judge. The
reason for placement in the notice states in full: “Your offense conduct
included significant communication with and support to Lashkar-eTaiba, an identified foreign terrorist organization, which is committed
to engaging in violence and terrorist activity against the United
States and its allies.”175

V. POLICY CONCERNS RAISED BY COMMUNICATION
MANAGEMENT UNITS
The manner in which BOP uses CMUs is flawed not only for
legal reasons, as discussed above, but also from the perspective of
sound policy. Some of the reasons for creating CMUs—for example,
that the communications of certain prisoners require increased
monitoring, and that concentrating such prisoners in a limited
number of specialized units facilitates rigorous monitoring—may be
valid.176 The manner in which the Bureau operates CMUs, however,
174.
18 U.S.C. § 3621(b)(4) (2006).
175.
Fed. Bureau of Prisons, U.S. Dep’t of Justice, Notice of Transfer to
Sabri Benkahla (Oct. 17, 2007) (on file with author), available as Exhibit C to
Amended Complaint, Benkahla v. Fed. Bureau of Prisons, No. 2:09-CV-00025
(S.D. Ind. July 27, 2009).
The placement of certain prisoners in CMUs may also violate the First
Amendment, which shields prisoners against retaliation for protected speech. See,
e.g., Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009); Gill v. Pidlypchak, 389
F.3d 379 (2d Cir. 2004); Vance v. Barrett, 345 F.3d 1083, 1093 (9th Cir. 2003).
Litigation in prison retaliation cases tends to be fact-intensive, requiring an
inquiry into the motives for actions taken by prison officials. See, e.g., Watison v.
Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (stating that the plaintiff in a
retaliation case must demonstrate “a causal connection between the adverse
action and the protected conduct”).
In Aref v. Holder, several prisoners allege that BOP officials transferred them
to CMUs as punishment for protected speech, an allegation which, if proven,
would constitute a First Amendment violation. Aref v. Holder, 774 F. Supp. 2d
147, 168 (D.D.C. 2011). For example, the plaintiffs allege that staff at a Colorado
prison told an inmate, who had no serious infractions in his disciplinary record,
that he would be “sent east” if he continued to file complaints. Id. at 169. After he
filed a complaint about this threat, he was transferred to the Marion CMU. Id.
176.
See infra Part II.

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could be improved without compromising the objectives these units
were created to achieve.
In operating CMUs, BOP should adhere to two principles.
First, the Bureau should send prisoners to CMUs only when sound
reason exists to believe that their communications pose a genuine
threat. In operating CMUs, BOP has not always followed this genuine
threat principle. Sabri Benkahla, for example, was sent to a CMU
despite a clean disciplinary record in prison and a judicial finding
that he was “not a terrorist” and that “his likelihood of ever
committing another crime is infinitesimal.”177 Similarly, plaintiffs
in Aref include individuals who are classified as low security
prisoners and who have clean disciplinary records.178 Second, where a
prisoner’s contacts with the outside world pose a potential threat,
BOP should use the minimum restrictions necessary to eliminate the
perceived threat.
177.
178.

United States v. Benkahla, 501 F. Supp. 2d 748, 759 (E.D. Va. 2007).
More specifically, allegations in Aref include the following:
Plaintiff YASSIN MUHIDDIN AREF is a 39-year-old refugee
and published author from Iraqi Kurdistan who fled Saddam
Hussein’s regime, moving to Albany, New York, in 1999.
Following a controversial and well-publicized sting operation,
Mr. Aref was convicted of money laundering, material support
for terrorism, conspiracy, and making a false statement to the
FBI. Mr. Aref is classified as a low security prisoner. Despite
the fact that Mr. Aref has no history of disciplinary infractions
within the BOP, he was transferred to the CMU at FCI Terre
Haute in May 2007 . . . . Mr. Aref has no affiliation with
extremist
or
violence-oriented
religious
or
political
organizations. Indeed, Mr. Aref is opposed to violent or
extremist religious and political ideologies.
Plaintiff AVON TWITTY (aka Abdul Ali) is a 55-year-old man
from Washington, DC, an American citizen and a practicing
Muslim. In 1984, Mr. Twitty was sentenced to 20 years to life
imprisonment on one count of murder while armed and three to
ten years imprisonment for one count of carrying a pistol
without a license. He is classified as a medium security inmate.
Despite the fact that Mr. Twitty has received no
communications-related disciplinary infractions—and received
only very minor disciplinary infractions overall—he was
transferred to the CMU at FCI Terre Haute on May 30, 2007,
and has been held there ever since. Mr. Twitty has no
affiliation with extremist or violence-oriented religious or
political organizations. His underlying conviction involved no
allegations of terrorism. Indeed, Mr. Twitty is opposed to
violent or extremist religious and political ideologies.
Aref Complaint, supra note 19, at 6–7.

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These principles reflect two important considerations. First,
the effects of contacts between prisoners and the outside world are
generally salutary. Empirical research has shown that “[i]nmates
who maintain family ties are less likely to accept norms and behavior
patterns of hardened criminals and become part of a prison
subculture.”179 As a result, preserving lines of communication
between inmates and family promotes order and security in prison.
The positive effects of family connections also continue after release
from prison: “With remarkable consistency, studies have shown that
family contact during incarceration is associated with lower
recidivism rates.”180
Second, severe restrictions on communication take a harsh
toll on inmates and their families.181 More than half of inmates in
American prisons have children, and 80% of those parents stay in
touch with their children while incarcerated.182 Blocking
communication increases the pain that spouses, children, and parents
feel when they lose a member of their family to the penal system.
Letters, visits, and telephone calls create a lifeline between inmates
and their families.
The genuine threat and minimum restriction principles
suggest three ways in which BOP should improve the operation of
CMUs. First, BOP should substantially increase permitted contact
between all CMU prisoners and the outside world. Such increased
communication could be achieved while continuing to monitor all
contacts between CMU prisoners and the outside world, thereby
eliminating any potential threat. Second, BOP should refine the
standard for CMU assignment to ensure that inmates are not placed
in CMUs unnecessarily. Third, BOP should provide more robust
procedures for challenging both initial CMU designation and

179.
Shirley R. Klein et al., Inmate Family Functioning, 46 Int’l J. of
Offender Therapy and Comp. Crim. 95, 99 (2002).
180.
Nancy G. La Vinge et al., Examining the Effect of Incarceration and
In-Prison Family Contact on Prisoners’ Family Relationships, 21 J. of Contemp.
Crim. Just. 314, 316 (2005); see also Rebecca L. Naser & Christy A. Visher,
Family Members Experiences with Incarceration and Reentry, 7 W. Criminology
Rev. 20, 21 (2006) (“[A] remarkably consistent association has been found between
family contact during incarceration and lower recidivism rates.”) (internal
citations omitted); Minnesota Dep’t of Corrections, The Effects of Prison Visitation
on Offender Recidivism 1 (2011) (“Offenders who were visited in prison were
significantly less likely to recidivate.”).
181.
See supra notes 79–92 and accompanying text.
182.
Nasser & Visher, supra note 180, at 20–21.

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continued placement in a CMU.183 These proposals are discussed
below in greater detail.

A. Overly Severe Restrictions on Communication
While scaling back the communications of CMU prisoners
means that the government has fewer communications to monitor
rigorously,184 the converse is also true: CMU prisoners could be
allowed far more access to visits and telephone calls if greater
resources were devoted to monitoring the increased volume of
communications. Indeed, BOP has already increased—albeit
minimally, and perhaps temporarily—the extent of visits and
telephone calls allotted to CMU prisoners. Specifically, CMU
prisoners are now allowed two (rather than one) fifteen-minute
telephone calls per week and eight (rather than four) hours
of visitation a month.185 These changes suggest that there is
no
insurmountable
obstacle
to
further
increases
in
prisoners’ communication.
Given the correlation between rehabilitation and contacts
with family, and the devastating impacts that harsh restrictions on
communication can have on family members,186 allocating additional
staff and resources to monitor a greater volume of communications
would be worth the investment. With additional staffing, increased
communications for CMU prisoners would in no way conflict with the
fundamental purpose of CMUs—achieving “total monitoring” of the
communications of certain inmates.187
Additionally, the decision to locate the CMUs in close
proximity to each other imposes a burden on family members to
travel long distances, creating a further obstacle to family contact.188
It would be logical to relocate the CMUs to locations that allow

183.
The following discussion draws on comments regarding the proposed
rule, Communication Management Units, 75 Fed. Reg. 17,324 (proposed April 6,
2010) (to be codified at 28 C.F.R. pt. 540), submitted by the author while employed
by the Brennan Center for Justice at NYU School of Law.
184.
Communication Management Units, 75 Fed. Reg. at 17,327 (“By
limiting the frequency and volume of the communication to/from inmates [in
CMUs], we will reduce the amount of communication requiring monitoring and
review.”).
185.
See supra notes 73–74 and accompanying text.
186.
See supra notes 179–182 and accompanying text.
187.
Communication Management Units, 75 Fed. Reg. at 17,328.
188.
See supra notes 87–88 and accompanying text.

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prisoners to remain closer to their families.189 At minimum, if the
Bureau opens additional CMUs, careful thought should be given to
locations that reduce travel burdens on family members.

B. Lack of a Clear Standard for CMU Designation
Given the extreme isolation that placement in a CMU entails,
the standard for assignment to such a unit should limit the CMU
population to prisoners whose communications pose a genuine
danger. Yet the current criteria, which are set forth in BOP’s
memorandum on CMU designation, are overbroad.190
For example, the placement criteria allow assignment to a
CMU if a prisoner “committed prohibited activity related to
misuse/abuse
of
approved
communication
methods
while
incarcerated.”191 The standard, which does not specify whether the
“misuse/abuse” must be serious or recurring, would sweep in a
prisoner who commits a trifling violation related to communications,
such as not immediately obeying a correctional officer’s instruction to
hang up the telephone while speaking with a family member. The
criteria for CMU placement should make it clear that minor
violations such as this provide no basis for the extreme isolation
caused by transfer to a CMU.
A catchall provision also enables BOP to place prisoners
in a CMU where “[t]here is any other evidence of a potential
threat to the safe, secure, and orderly operation of prison facilities,
or protection of the public, as a result of the inmate’s
communication with persons in the community.”192 This remarkably
low bar—“any . . . evidence”—would permit CMU placement even
when the evidence lacks credibility or is contradicted by more
compelling evidence. Moreover, the vagueness of the contemplated
harm places no meaningful limit on prison officials’ discretion to
deem an inmate a “threat.” For example, an inmate who had an
unusually large number of visitors could be deemed a threat to the
“orderly operation of prison facilities” due to the minor disruption
caused by the visits.
In short, the current criteria for CMU placement allow BOP
to radically restrict a prisoner’s communications without an adequate
189.
190.
191.
192.

See supra notes 87–88 and accompanying text.
See supra note 63 and accompanying text.
See supra note 63 and accompanying text.
See supra note 63 and accompanying text.

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rationale. This danger is not merely theoretical: some prisoners have
been designated to CMUs without sufficient justification.193 The lack
of clear standards for who belongs in a CMU, combined with the
disproportionate number of Muslims housed in these units, may also
contribute to a perception that Muslims have been singled out for
CMU placement based on stereotypes:194 An appropriate rule would
eschew vague standards and ensure that placement in a CMU occurs
only on the basis of a serious risk.
The following is an example of a more narrow and clear
standard that BOP could use for CMU placement:
(a) An inmate may be designated to a Communication
Management Unit if the Bureau establishes, by a
preponderance of the evidence:
(1) a substantial likelihood that the inmate
will use communications with noninmates in furtherance of serious illegal
conduct; or
(2) a recurring pattern of behavior in which
the inmate violates rules governing
inmate communications.
(b) The Bureau may continue an inmate’s placement
in a Communication Management Unit when:
(1) in the case of an inmate designated to a
Communication Management Unit under
Section (a)(1), there remains a substantial
likelihood that the inmate will use
communications with non-inmates in
furtherance of serious illegal conduct; or
(2) in the case of an inmate designated to a
Communication Management Unit under
Section (a)(2), a substantial likelihood
exists that the inmate will continue to
193.
See supra notes 177–178 and accompanying text.
194.
See Scott Shane, Beyond Guantánamo, A Web of Prisons for Terrorism
Inmates, N.Y. Times, Dec. 11, 2011, at A1 (“‘The C.M.U.’s? You mean the Muslim
Management Units?’ said Ibrahim Hooper, a spokesman for the Council on
American-Islamic Relations.”); Christoper S. Stewart, Little Gitmo, N.Y.
Magazine, Jul. 10, 2011, at 40 (“[B]alancers,” as CMU guards call them, were
reportedly blended into the [CMU] population—environmental activists, sexual
predators, bank robbers, people who, prison officials claimed, ‘recruit and
radicalize’—in order to address the criticism that CMUs were housing only
Muslims. The Bureau of Prisons says it doesn’t use race or religion to decide
placement, and it rejects claims of adding balancers, though Muslim inmates
continue to be in the majority.”).

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violate the rules
communications.195

regarding

89

inmate

C. Lack of Meaningful Procedures Regarding CMU Designation
Extremely limited procedural protections accompany CMU
placement. A prisoner receives a Notice of Transfer with the rationale
for CMU designation only after being transferred.196 The reasons
provided for transfer typically are cursory,197 and the Terre Haute
and Marion Institution Supplements provide no mechanism for the
prisoner to obtain a more detailed explanation, which would allow for
a more meaningful appeal of the transfer decision.198 Upon arrival at
a CMU, an inmate can challenge CMU placement only through BOP’s
Administrative Remedy Program, a purely written process.199 An
inmate has no right to a live hearing, no right to call witnesses or
present evidence, and no right to representation of any kind.200
Rather, the inmate is limited to completing a grievance form
challenging CMU placement, and further forms necessary to appeal
an adverse decision to BOP Regional Directors and, ultimately, BOP’s
Office of General Counsel.201
BOP should craft more robust procedures for CMU placement,
looking to one of the Bureau’s own models—the regulations governing
placement in control units, which house inmates thought to pose a
threat to order within a prison.202 Current BOP regulations grant
meaningful procedures to inmates placed in control units, and the
Bureau should extend similar processes to CMU prisoners. Under

195.
The author included this proposed standard in comments submitted to
BOP regarding the pending CMU regulation. These comments were submitted on
behalf of the Brennan Center for Justice. David M. Shapiro, Comments to
Communication Management Units, Brennan Center for Justice (June 2, 2010),
http://www.brennancenter.org/page/-/Justice/LNS/CMU%20Comments%20FINAL
%20%283%29.pdf.
196.
See supra note 64 and accompanying text.
197.
See supra notes 65–66 and accompanying text.
198.
Terre Haute CMU Institution Supplement, supra note 15; Second
Marion CMU Institution Supplement, supra note 18.
199.
Terre Haute CMU Institution Supplement, supra note 15, at 5; First
Marion CMU Institution Supplement, supra note 67, at 4; Second Marion
Institution Supplement, supra note 18, at 5; see also 28 C.F.R. 542.10–542.19
(2006) (regulations regarding Administrative Remedy Program).
200.
28 C.F.R. § 542.10–542.19 (2006).
201.
Id. §§ 542.14–542.15.
202.
Id. § 541.40(a).

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BOP regulations, an inmate is entitled to the following procedures
prior to placement in a control unit:


A live hearing;203



Twenty-four hour advance notice of the charges and
the acts or evidence in issue;204



Representation at the hearing by a staff member, who
has the right to interview witnesses prior to the
hearing;205



The right to call witnesses and present documentary
evidence at the hearing;206



A written decision
administrator;207 and



Review of the hearing administrator’s decision by an
executive panel.208

issued

by

the

hearing

Given the substantial restrictions that assignment to a CMU
imposes on a prisoner and the serious consequences of erroneous
placement in a CMU, BOP should provide more robust procedural
checks, similar to those governing control unit placement. Such
procedures should occur before, rather than after, physical transfer to
a CMU occurs. In practice, the distances BOP must transport many
inmates to reach the two CMUs in Indiana and Illinois vitiates the
effectiveness of a post-transfer appeal: the Bureau is unlikely to grant
any appeal that requires transporting a prisoner the hundreds, if not
thousands, of miles back to the less restrictive facilities from which
he came.209
BOP should also ensure rigorous review of the ongoing need
for CMU placement. An inmate may reach a point where a less
restrictive unit becomes appropriate, and BOP must ensure that
mechanisms for ongoing review allow transfer to occur at that stage.
Creating a real possibility for transfer to a less restrictive unit also
gives inmates an incentive to improve their behavior. Neither
the current criteria governing CMU placement nor the pending
proposed rule, however, state how frequently review of ongoing
203.
204.
205.
206.
207.
208.
209.

Id. § 541.43(b).
Id. § 541.43(b)(1).
Id. § 541.43(b)(2).
Id. § 541.43(b)(4).
Id. § 541.44(a).
Id. § 541.45.
See supra notes 87–88 and accompanying text.

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placement must occur.210 The control unit regulations require review
every thirty days.211 It would be logical to review CMU placement at
similar intervals.

VI. CONCLUSION
From the perspectives of both law and policy, the
government’s use of CMUs is flawed in several respects. While CMUs
were created to serve important objectives, substantial
modifications—ranging from the prompt promulgation of a federal
regulation regarding CMUs, to increased opportunities for congregate
prayer, to more lucid and narrow criteria for placement, to more
robust procedural protections—are necessary, both to comply with the
law and to improve these units from a policy standpoint.
More broadly, a fuller assessment of the Bureau of Prisons’
role in the War on Terror is sorely needed. The topic has received
little attention in the academic literature, despite important
transformations in domestic federal incarceration.
It is hoped that the discussion of CMUs in this Article will
spur additional inquiry and debate regarding CMUs and the post9/11 revolution in domestic incarceration, including such recent
changes as the Correctional Intelligence Initiative, limitations on
access to religious texts implemented to prevent radicalization, and
the use of Special Administrative Measures to curtail the attorneyclient privilege. This much is certain: the War on Terror has
transformed the nature of imprisonment not only for foreign
nationals in far-flung locations such as Abu Ghraib and Guantanamo
Bay but also for American citizens right here at home.

210.
Under the proposed rule, review must occur “regularly”—but the term
“regularly” is not defined. Communication Management Units, 75 Fed. Reg.
17,324, 17,328 (proposed Apr. 6, 2010) (to be codified at 28 C.F.R. pt. 540); see also
Review of Inmates, supra note 14, at 1.
211.
28 C.F.R. § 541.49(a) (2006).