The court was divided 4-4.
It was September 19, 2001. Elizabeth McAlister had not heard from her husband, Philip Berrigan, in more than a week. Such silence on Berrigan's part was "most unusual," she says. Convinced that something was wrong, she telephoned the Federal Correctional Institution in Elkton, Ohio, where the seventy-seven-year-old peace activist is serving a sentence of a year and a day for hammering on a military aircraft while on probation for a similar action in another state.
"It took ten phone calls to the prison to get them to admit to me that he was in segregation," she says. McAlister also learned that Berrigan was being denied all phone calls and visits, even from family members. "I was not told why or for how long."
So McAlister telephoned the office of her Senator, Maryland Democrat Barbara Mikulski. Mikulski's office called the prison and, according to McAlister, was told "that Phil was put in segregation on September 11, 2001, as a direct consequence of the attacks on the World Trade Center and the Pentagon, [and] that this was done 'for his protection.'"
But that explanation did not ring true. "If Philip is in segregation 'for his protection,' why the punitive denial of visits from his family?" McAlister wrote to Mikulski.
On September 20, Mikulski wrote her own letter -- to Kathleen Hawk Sawyer, Director of the Federal Bureau of Prisons. "I would appreciate being advised of Mr. Berrigan's status and an explanation as to the reasoning for that status," the Senator said.
The reason Mikulski received differed markedly from the information her own office had obtained several days earlier. The October 1 letter, from Michael B. Cooksey, Assistant Director of the Federal Bureau of Prisons, said that Berrigan had been placed in administrative detention "for security reasons, pending a review of his case." It added, "The Warden may occasionally restrict certain privileges afforded inmates, such as visiting and telephone calls, to ensure the orderly running of the institution and to protect the public."
The letter also informed Mikulski that Berrigan's "case has been reviewed, and he was released to general population on September 21, 2001. Additionally, his visiting and telephone restrictions have been lifted."
In a letter to The Progressive dated October 25, Berrigan describes his experience. "On September 11, I watched appalled as the second tower of the WTC came down. The guards called me out, took me to the lieutenant's office, shackled and handcuffed me, and took me to solitary. I inquired several times as to why. One guard grunted, 'Security!' During twelve days in segregation, no further daylight was provided. One lieutenant came to announce, 'No phone, no visitors!' And no stamps. I was locked down ten days before mailing out letters. The result? Limbo-incommunicado."
It was "perhaps Ashcroft's idea. Lock up all the naysayers," he says.
Berrigan's hunch about Attorney General John Ashcroft may have been right. On October 31, the Department of Justice published new rules, "effective upon publication," that "impose special administrative measures with respect to specified inmates." The document, entitled "National Security: Prevention of Acts of Violence and Terrorism," was signed by Attorney General John Ashcroft on October 26 and published in the Federal Register.
Under the new rules, the Department of Justice, "based on information from the head of a federal law enforcement or intelligence agency," will select certain prisoners for "special administrative measures." These "may include housing the inmate in administrative detention" (another term for isolation) and denying that inmate "correspondence, visiting, interviews with representatives of the news media, and use of the telephone, as is reasonably necessary to prevent the disclosure of classified information."
Prior to these new rules, the amount of time an inmate could be held under such conditions was limited to 120 days, although the Department of Justice had the authority to renew the stay in isolation. The new regulations authorize the Bureau of Prisons to hold an inmate incommunicado for a "period of time designated by the Director [of the Bureau of Prisons], up to one year." In addition, "The rule also allows for the Director to extend the period for the special administrative measures for additional one-year periods, based on subsequent certifications from the head of an intelligence agency."
The Attorney General's rationale for these actions? "Where the head of an intelligence agency has certified to the Attorney General that there is a danger that the inmate will disclose classified information posing a threat to the national security, there is no logical reason to suppose that the threat to the national security will dissipate after 120 days," explains the document.
But the segregation measures are not the end of it.
In a provision that National Lawyers Guild attorney Scott Fleming calls "frightening and entirely new," the new rules direct the Bureau of Prisons to eavesdrop on conversations that such prisoners have with their attorneys. "In any case where the Attorney General specifically so orders, based on information from the head of a federal law enforcement or intelligence agency that reasonable suspicion exists to believe that a particular inmate may use communications with attorneys or their agents to further or facilitate acts of terrorism, the Director, Bureau of Prisons, shall . . . provide appropriate procedures for the monitoring or review of communications between that inmate and attorneys or attorneys' agents who are traditionally covered by the attorney-client privilege," the rules state.
Under these rules, not only is the prisoner a threat "but the attorney as well," says Fleming, who has worked on the cases of several prisoners with political backgrounds. The rules, he says, characterize the attorney "as disseminating information for a prisoner who's been deemed a national security threat."
Until now, federal prisons have had a separate, untapped phone line for attorneys. Attorney-client privilege "is usually held sacred," says Donna Wilmott, litigation coordinator for the San Francisco-based Legal Services for Prisoners with Children. Phones aren't listened to; mail is not read. "It's a basic right because, if you are trying to develop a defense strategy, you need to have confidential conversations with your attorneys." But now, says Wilmott, "They're basically saying there's a whole category of people they don't have to honor attorney-client privilege with."
Usually, such changes in government policy involve an extensive public comment period. Not in this case. As the Department of Justice explains this unusual maneuver, "The immediate implementation of this interim rule without public comment is necessary to ensure that the Department [of Justice] is able to respond to current intelligence and law enforcement concerns relating to threats to the national security or risks of terrorism or violent crimes that may arise through the ability of particular inmates to communicate with other persons."
Amnesty International is concerned about the new developments. "Prompt and regular access to counsel for detainees is a fundamental human right under international standards, even during emergency situations," says Curt Goering, senior deputy executive director of Amnesty International USA. "These standards provide for the right 'to be visited by and to consult and communicate, without delay and with full censorship and in full confidentiality with his legal counsel.'"
These regulations may serve as a post-facto justification for prison actions that occurred after September 11.
In the hours following the terrorist attacks on the World Trade Center and the Pentagon, leftwing prisoners like Berrigan were singled out from the general population and taken to Secure Housing Units. Some were denied access to legal counsel.
"These are all people who were or are leftist political militants, but hardly Islamic fundamentalists," says attorney Robert Boyle, who is based in New York City. "These people have no connection whatever to this."
The new regulations, says Boyle, are "the formalization of what they've been doing for the past six weeks."
"The decision to segregate inmates without explanation or access to counsel appears to be driven by certain policies which have not been made publicly known," William Goodwin, legal director for the New York-based Center for Constitutional Rights, wrote in an October 18 letter to Attorney General John Ashcroft. "Ultimately, these policy directives flow from the Department of Justice through the Federal Bureau of Prisons to penitentiaries throughout the U.S."
Goodwin estimates the number of leftwing prisoners who were segregated at between ten and fifteen. Some of these prisoners say that others were locked down, as well, including Arabs, militia members, and abortion clinic attackers.
"Immediately after the events of September 11, there was a group of people, who, in different institutions across the country, were singled out," says Diana Block, funding coordinator for the Jericho Movement, which represents prisoners with political backgrounds.
The Jericho Movement issued an open letter in response to the detentions, calling them "another step toward criminalizing dissent in the United States."
Since 1973, Sundiata Acoli has been serving a life sentence for the murders of a police officer and a fellow Black Liberation Army member in a shootout in which Acoli drove the getaway car. Shortly after the September 11 attack, he found himself in the hole.
Soffiyah Elijah, a clinical instructor at Harvard Law School's Criminal Justice Institute, is one of several lawyers who represent Acoli. "None of us have had access to him," she says.
I talked to Elijah on October 25. The day before, she said, was her first opportunity to speak with Acoli in nearly six weeks. She said she made so many calls that she lost count. "I was constantly on the phone to the lawyers of the B.O.P. [Bureau of Prisons]," she said.
Elijah gave me a copy of a letter on U.S. Department of Justice/Bureau of Prisons stationery. It is dated September 26 and is signed Jake Mendez, Warden of the U.S. Penitentiary in Allenwood, Pennsylvania, where Sundiata Acoli (whose former name, used on all Bureau of Prison records, is Clark Squire) is incarcerated.
"Dear Ms. Elijah," says the letter, "I am in receipt of your letter wherein you request Inmate Clark Squire be permitted a legal telephone call. . . . Inmate Squire is currently not authorized telephone privileges, including legal telephone calls. This has been enacted for security reasons. Moreover, my review indicates Inmate Squire does not have legal action pending at this time. Accordingly, I am denying your request to allow Inmate Squire a legal telephone call."
Elijah says that the order for Acoli's segregation did not come from the individual prison, but from Washington.
"He was told by the warden a couple of weeks after he was thrown in the hole that there was an order from the Justice Department and the FBI to keep him in the hole," she says. "One lawyer from the Bureau of Prisons told another lawyer who's been working with us that the decision came from Ashcroft's office. I know I was told that it came from higher up than the B.O.P. I had at least two different lawyers from B.O.P. tell me that."
As this story was going to press, on November 2, Acoli remained in segregation.
Marilyn Buck is serving eighty years for several crimes that include assisting in the 1979 prison escape of Assata Shakur and a 1981 Brinks armored car robbery that resulted in the deaths of two police officers. She was also convicted of the 1983 bombing of the U.S. Capitol. Buck is housed at the Federal Correctional Institution in Dublin, California.
Elijah is her attorney, as well, and she was also denied legal access to Buck. "No calls, visits, or mail. They told me that specifically," she says.
"Even in my pessimistic view of the B.O.P., they have sunk below my expectations," she says. Elijah has never before been denied access to a client. "Sometimes it may take a day or two, but being flat-out told I couldn't talk to my client--never. I've never been told that my legal mail wasn't going to be given to my client or that I couldn't visit my client."
After her release from segregation, Buck said in a letter, "I had never been held incommunicado." It was "a new nightmarish experience."
Jan Susler is an attorney for Puerto Rican independentistas. She says two of her clients were held in segregation. Antonio Comacho Negron, imprisoned at the Federal Correctional Institution in Allenwood, Pennsylvania, was held in a Secure Housing Unit from September 11 until October 2. Comacho Negron was sentenced in 1989 to fifteen years and $100,000 for conspiracy to rob a bank, then re-arrested and returned to prison in 1998 for violating parole by returning to the Puerto Rican independence movement. Comacho Negron could not communicate with anyone outside the prison during his isolation. "He didn't get any ingoing or outgoing mail. No phone calls," says Susler. "He asked to receive a legal call and was told he couldn't have that. He was on medication that they refused to give him. He has a stomach ulcer. He says he lost fifteen pounds."
Susler says that she wrote the Bureau of Prisons about Comacho Negron on October 2. As of October 30, she had yet to receive a response.
Another of Susler's clients, Carlos Torres, the national leader of the Puerto Rican nationalist group FALN, was convicted of seditious conspiracy for an attempted robbery of an armored vehicle in Evanston, Illinois, in 1980. He is currently incarcerated at the Federal Correctional Institution in Oxford, Wisconsin. As compared to others in the days after September 11, Torres's stint in the Secure Housing Unit was relatively easy. Though segregated, says Susler, "He was allowed regular visits from family, allowed mail, would have been allowed legal visits, got his medication."
The prison employees at Oxford, says Susler, "told me that they were totally puzzled by his placement in administrative detention, that they had nothing to do with it," and that they were waiting for orders from Washington.
Susler wrote the Federal Bureau of Prisons and received a letter, dated October 1, from Cooksey. "This placement was for security reasons, pending a review of his case, and should not be considered 'harassment' or 'punishment,'" wrote Cooksey. "In this case, the Warden has determined Mr. Torres should remain in administrative detention at this time."
The Bureau of Prisons denied my request to interview Torres "based on safety and security concerns right now."
Raymond Levasseur is incarcerated at the U.S. Penitentiary in Atlanta. Levasseur and his co-defendant, Richard Williams, each received forty-five-year sentences for bombing buildings, including courthouses in the 1970s and 1980s. Attorney Jamila Levi says Levasseur was held in solitary confinement from September 18 until October 23. Levi says she received a letter from the prison advising her to contact the Office of the U.S. Attorney General if she had questions. But when she did call the Attorney General's office, she was unable to get any information regarding Levasseur, says Levi.
Williams has been imprisoned for seventeen years and is currently incarcerated at the U.S. Penitentiary in Lompoc, California. Boyle, his attorney, says that Williams was not only segregated but denied legal visits, legal calls, and legal mail. In an October 17 letter to Sawyer of the Federal Bureau of Prisons, Boyle wrote, "I was told that those restrictions were ordered by Washington and were occasioned by the 'events of September 11.'"
It was not until September 24, claims Boyle, that he was told he could have a phone call with his client, a conversation that took place two days later.
In a letter dated November 1, Williams writes that on September 11, "A guard came to my cell and said follow him. He took me out of the block and down to a locked corridor. Within half an hour, there were ten of us in there. When we asked why we were locked up, they said we were terrorists and we hate the government."
As of October 31, Williams had not been released from administrative segregation, according to Boyle.
"The complete prohibition on contact with his attorneys, as existed for some twelve days, was an egregious violation of Mr. Williams's Fifth and Sixth Amendment rights," he wrote to Sawyer.
"Being held incommunicado even from your attorney--that, to me, was unprecedented," says Boyle. "They feel that in this environment, they have carte blanche to do whatever."
In denying the inmates contact with their lawyers, says Boyle, the government is, in effect, labeling the lawyers themselves as under suspicion. "I kind of felt that in saying that he couldn't write to me and I couldn't write to him, they were accusing me of being involved," he says. "If there was a conspiracy, I was part of that conspiracy."
"In the aftermath of September 11, we can't address specific actions we took to ensure the safety and security of our institutions," said Traci Billingsly, a spokesperson for the Federal Bureau of Prisons. "All the institutions took appropriate actions."
What about denying inmates access to their lawyers? Billingsly claimed that such things didn't happen. "All inmates are afforded access to their lawyers while they are in Secure Housing Units," she said.
The Department of Justice was also less than forthcoming. A spokesperson referred me back to the Federal Bureau of Prisons, assuring me that Linda Smith, a spokesperson there, would answer all my questions.
"Were they terrorists?" asked Smith. She told me all she could say was that individual institutions may segregate inmates for several reasons, including misbehavior, pending investigation, and before transferral to another institution.
As for the lack of access to lawyers, "To the best of my knowledge, that is untrue," she said.
The new regulations, in combination with the detentions, bode ill for our democracy. "It's really a moment the people have to wake up and put the government in check," says Susler.
Wilmott is concerned that the segregations in the federal prisons may be a sign of the future. "To me, when the state does things like this, it's a trial balloon to see how much of preventive detention will be tolerated," she says. "What they do to prisoners they can visit on the general public. I think it has repercussions for everyone who has a dissenting voice."
McAlister put Berrigan's treatment in larger context. "It has all the texture of reprisal and vindictiveness--a punishment for thinking outside the consensus and acting against our nation's love affair with weapons of mass destruction," she wrote to Mikulski. "If any of the attitude I feel and fear is present, it is the absolute end of all that we say we value as a nation."
Anne-Marie Cusac is Managing Editor of The Progressive. This article was made possible in part by a grant from the Fund for Investigative Journalism, Inc.