nationalsecuritylaw Mohammed v. Holder (D. Col. Sep. 29, 2011)

October 3, 2011

* Khalfan Khamis Mohammed v. Holder, No. 07-cv-02697 (D. Col. Sep. 29, 2011)

Plaintiff Mohammed is serving a life sentence at the ADX (“Supermax”) facility in Colorado, based on his involvement in the 1998 East Africa embassy bombings (Mohammed also was involved in an infamous attack on a prison guard while awaiting trial in New York, resulting in the guard being stabbed in his left eye).

Mohammed has filed a suit challenging the constitutionality of the Special Administrative Measures (“SAMs”) to which he is subject, advancing Fifth Amendment procedural due process, First Amendment expression, and Eighth Amendment cruel-and-unusual-punishment claims. The government moved to dismiss. Judge Marcia Krieger granted that motion as to the 5th and 8th Amendment claims, but concluded that Mohammed had made a prima facie case under the First Amendment. The text of her First Amendment analysis follows below:

V. Analysis

A. Claim Four: First Amendment

Because elements of the analysis of Mr. Mohammed’s First Amendment claim assist in determination of his other claims, this claim will be addressed first. Mr. Mohammed’s First Amendment claim is based primarily on current SAMs applying to his correspondence and visitation, in particular to the: (1) limitation of Mr. Mohammed’s communications and visitation to his immediate family, excluding his nieces, nephews, and in-laws; (2) delay in the sending and receiving of mail due to the FBI’s translation and monitoring, particularly since the delays used to be much shorter. [FN20]

FN20. Mr. Mohammed also appears to object to treatment of mail from courts, government agencies and representatives, and from lawyers (other than his own legal representatives) or legal societies as non-legal mail, subject to copying and monitoring. Pl.’s Resp., # 214-2, at 123. However, it is unclear how Mr. Mohammed believes that his First Amendment rights have been infringed. There is no evidence of restriction in his legal mail, and the case he cites, Jones v. Brown, 461 F.3d 353 (3d. Cir.2006), concerns a prison’s practice of opening and copying an inmate’s legal mail. Mr. Mohammed’s simple assertion that certain documents other than correspondence to and from his legal representatives should be treated as legal mail does not demonstrate a constitutional violation.

It is well established that prisoners retain First Amendment rights. O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). This includes a right to free flowing incoming and outgoing mail. Davis v. Goord, 320 F.3d 346, 351 (2d Cir.2003) (noting that courts generally afford greater protection to legal mail than to non-legal mail, as well as greater protection to outgoing mail than to incoming mail). SAMs that infringe on Mr. Mohammed’s First Amendment rights of free speech and association may be lawful if they are reasonably related to legitimate penological interests. Turner v. Safley, 482 U.S. 78, 89 (1987). To make this determination, the Court must examine the following factors: (1) whether a rational connection exists between the SAMs and a legitimate governmental interest advanced as its justification; (2) whether alternative means of exercising the right are available notwithstanding the SAMs; (3) what effect accommodating the exercise of the right would have on guards, other prisoners, and prison resources generally; and (4) whether ready, easy-to-implement alternatives exist that would accommodate the prisoner’s rights. Id. at 89-91. In evaluating a challenged prison regulation, the Court is instructed to give appropriate deference to prison administrators "who are actually charged with and trained in the running of the particular institution under examination." O’Lone, 482 U.S. at 349 (quotation omitted).

Mr. Mohammed bears the burden of showing that the SAMs relating to his communications are not reasonably related to the interests asserted by the government. Overton v. Bazzetta, 539 U.S. 126, 132 (2003). The Defendants contend that Mr. Mohammed cannot present a prima facie case because the pertinent SAM restrictions are justified by the following legitimate interests: (1) preventing terrorist acts, (2) ensuring that Mr. Mohammed does not engage in communications that jeopardize national security, (3) promoting safety of federal prisons, including safety of other inmates, (4) promoting the effective operation of law enforcement agencies, including permitting them to efficiently allocate resources. Defendants further argue that the restrictions further these interests by reducing the risk that communications coming from the ADX could reveal information that could lead to an attack against the prison or against government personnel. They also assert that restrictions on incoming communications are needed to prevent radicalization of inmates or passing along of messages that could result in coordinated activities by the inmates. This requires monitoring all of Mr. Mohammed’s communications and adequate time for review, including translation. Because of the limits of the Government’s resources, the volume of correspondence, telephone calls, and visits must be kept to a level where review can reasonably be achieved.

1. Rational Connection Between the SAMs and the Interests to be Promoted

*8 Defendants argue that limiting Mr. Mohammed’s correspondence and visitation to his immediate family and four other family members serves two purposes. First, it reduces the possibility that Mr. Mohammed will engage in communications with persons outside the prison facility that could lead to terrorist acts or other actions that could jeopardize national or institutional security, and second it reduces the chance of further radicalization and of coordinated activities within the institution caused by incoming mail. Because the FBI monitors the communications of 20 inmates, the limitation of its resources further require that limitation of the volume of communications reviewed. The FBI estimates that the time limits given, 14 days for correspondence in English and 60 days for foreign language correspondence, are needed to thoroughly and accurately translate and analyze the communications.

There is no dispute that maintaining prison security and preventing advocacy of violence and radicalism both inside and outside the prison are legitimate governmental interests. Appropriate allocation of prison and other governmental resources is also a legitimate interest. However, because the SAMs at issue are individually crafted to address the risk associated with Mr. Mohammed, the question is not whether SAMs, generally, are rationally related to a penological objective, but instead whether the Government has shown that there is a rational connection between the particular SAMs applied to Mr. Mohammed and a penological objective.

The Government’s general justifications for SAMs–involvement in terrorist activities and dangerous communication by others during incarceration–do not address Mr. Mohammed’s conduct or his particular risks. The Government has identified only three specific instances or risk factors applicable to Mr. Mohammed: statements made in the Investigation Report, his 2001 conviction for the charges arising out of the Dar Es Salaam bombing, and his participation in a prison incident in 2000. These all had occurred prior to the time when Mr. Mohammed’s written correspondence became more restricted, and there has been no showing that new circumstances justify greater restriction. In addition, there is no showing that the persons with whom Mr. Mohammed wishes to communicate pose a particular threat either to the security of the prison or to the public at large. [FN21]

FN21. With regard to the effect of limited funding justifying SAMs, a substantially more complete showing must be made by the Government. It is possible that limited resources may impact the ability of an institution to meet penological objectives, but that does not necessarily mean that particular restrictions on specific inmates are rationally related to such objectives. For example, simply because there is insufficient manpower to screen all mail coming into a prison does not entitle the prison to select particular inmates who cannot receive mail, or to limit the people with whom inmates may communicate. See Guajardo v. Estelle, 580 F.2d 748 (5th Cir.1978) (state cannot assert its administrative convenience as a ground for a numerical limitation on inmates’ personal correspondence without showing that order, security or rehabilitation were affected).

Mr. Mohammed points to the fact that the Warden of ADX has recommended that Mr. Mohammed be permitted to correspond with more members of his family and community, and that until approximately 2005, his correspondence was not been limited to his immediate family. As a consequence, the Court finds that Mr. Mohammed has come forward with sufficient evidence to make his prima facie showing that there is no rational connection between the current restrictions on communication with those outside his immediate family.

2. Alternative Means of Exercising the Right

*9 Defendants argue that Mr. Mohammed also cannot show that he has no has alternative means of exercising his First Amendment rights. As grounds, they note that there is no restriction on his ability to correspond with his attorneys who have signed the affirmation acknowledging receipt of Mr. Mohammed’s SAMs or on correspondence to U.S. courts, federal judges, U.S. Attorney’s offices, members of Congress, the BOP, and other federal law enforcement entities. He may now send as many letters as he wishes to those on his approved list of correspondents. He may also talk by telephone to those approved for telephone calls. Defendants emphasize that in considering this factor, there is no requirement that the alternatives be ideal, only that they be available. Overton, 539 U.S. at 135.

In response, Mr. Mohammed argues that the ability to communicate with the approved group of correspondents doesn’t compensate for his inability to communicate with family members that are now excluded. The fact of who is on the list or not is undisputed. Determination of this factor thus depends on whether the right at issue is considered to be Mr. Mohammed’s right to communicate with persons outside of the facility in general or with his nieces and nephews and other community members specifically. In the context of this element, the "right" at issue is to be viewed both "sensibly and expansively." Thornburgh v. Abbott, 490 U.S. 401, 417 (1989). Given this authority, the Court understands the limitations to infringe on Mr. Mohammed’s right to expression and to maintain contact with his family as a general matter.

Again, giving Mr. Mohammed the benefit of all favorable inferences, his evidence may be sufficient to show that alternative means of exercising his First Amendment rights are not available for maintaining his familial associations. All of his non-legal communications are limited in the same manner. This distinguishes Mr. Mohammed’s case from situations where, for example, one mode of communication (such as visitation) with a small number of persons was restricted, but other modes of communication were still available with those persons or with a wider group of other persons. See e.g., Overton, 539 U.S. at 132-35 (prohibition on inmate visits with minor nieces and nephews did not violate First Amendment; inmates could communicate with those children by telephone or writing); Turner, 482 U.S. at 91-93 (prohibition on inmate-to-inmate correspondence between institutions except among immediate family members upheld; inmates had other means of expression as other correspondence was not restricted). Here, Mr. Mohammed cannot communicate by telephone, writing, or personal visit with anyone other than the specified persons approved by his SAMs and so a jury could find that alternative modes of communication with his family and community are not available.

3. Effect of Accommodating the Exercise of the Right

The third Turner factor requires considering the impact accommodating inmate would have on guards, other inmates and on allocation of prison resources. Defendants assert that if Mr. Mohammed were permitted to communicate with an unrestricted number of persons the Government would not be able to adequately monitor his communications and would thereby increase the risks to national security and to the facility. Alternatively, it would presumably require that additional resources be allocated to monitoring.

*10 Mr. Mohammed’s showing is that the undisputed fact that in the past his correspondence was reviewed within shorter time frames and he was not restricted to a defined list of correspondents. [FN22] Because there is evidence that the Government previously has been able to accommodate a more liberal correspondence policy, Mr. Mohammed may be able to show that permitting him to correspond with all of his family would not unduly affect the Government’s resources or the effectiveness of the monitoring. The Defendants’ evidence is general and conclusory regarding this factor, with no specifics regarding the actual impact of such a change, and so there is an issue of fact in this regard.

FN22. Mr. Mohammed also contends that the BOP could handle the monitoring of Mr. Mohammed’s communications, rather than the FBI, which he believes would eliminate the need for restrictions on the number of persons with whom he communicates as well as the incident delays. These arguments are more pertinent to the fourth Turner factor and are discussed in that section.

4. Existence of Easy Alternatives

Defendants contend that Mr. Mohammed cannot show that there are easy alternatives that can be used by the Government without limiting his correspondence or that the SAMs are an exaggerated response to the legitimate concerns. Mr. Mohammed rebuts this by arguing that there is an easy alternative–the monitoring of his communications should be done by the BOP rather than the FBI.

Mr. Mohammed appears to believe that the extensive delays in the sending and receipt of his mail is due to the FBI’s review and that if the BOP instead monitored his mail there would be fewer delays and he would be able to correspond and communicate with more people. Mr. Mohammed’s argument is to some extent speculative in that there is no real evidence that the BOP would be able to perform the monitoring as effectively or, more importantly, as expeditiously as Mr. Mohammed contends. [FN23] Nonetheless, his evidence showing that the Warden has recommended easing his restrictions and the difference of opinion between the BOP and the FBI regarding the adequacy of BOP monitoring is sufficient to raise an issue of fact regarding whether there are easy alternatives to the highly restrictive correspondence list currently in place.

FN23. Mr. Mohammed relies heavily on the findings of a September 2006 report by the Office of Inspector General regarding a review of the BOP’s monitoring of mail for high risk inmates. The Government argues that this report concluded that the BOP did not have the necessary knowledge and background to detect terrorist activity. Defendants have offered evidence to show that the FBI has determined that its Swahili language interpreters are better qualified to translate Mr. Mohammed’s communications than the BOP’s in-house linguists and that FBI case agents are better able to provide the needed analysis.

5. Conclusion

Applying the Turner factors, Defendants have not shown that Mr. Mohammed’s evidence is insufficient to set out a prima facie case with regard to the SAMs that limit his communications to a narrow and specific list of persons. Therefore, summary judgment on the First Amendment claim is inappropriate.