Daniel’s lawsuit against the Bureau of Prisons (Aref v. Holder) has been progressing rapidly these past months. Our lawyers have filed a ‘surreply‘ to the defendants’ (BOP) motion to dismiss. The motion deals with some issues that have popped up in the wake of Daniel’s unconstitutional jailing last week. You can read the surreply written by our lawyers at CCR here. (This ‘surreply’ is also in response to the defendants ‘reply brief’ on their motion to dismiss, which is available here. Older legal documents in this case can be viewed here. Thanks to our excellent lawyers at CCR for putting together these well-crafted motions.
Archive for April, 2013
Submitted by Robert Meeropol on Thu, 04/11/2013
For the second week in a row I am compelled to write about someone represented by theCenter for Constitutional Rights (CCR), and more particularly by my daughter, Rachel Meeropol, who is a senior staff attorney there.
Daniel McGowan pleaded guilty to an environmentally motivated arson in 2006 and is now serving the last six months of his seven-year sentence at a halfway house in Brooklyn. My daughter got involved in his case when the CCR filed a suit attacking the constitutionality of his transfer to a “Communication Management Unit” (CMU) during his imprisonment. In these units, inmates’ communication with the outside world is limited to one 15-minute phone call a week and two two-hour visits a month. Rachel described the CMUs “[as] political prisons. These people are being targeted to limit their ability to communicate with the outside world, and to limit their ability to be political people.”
Daniel McGowan was swept up in a wave of “Green Scare” cases that generated a number of RFC beneficiary families. In 2010, Daniel believed he was transferred to the CMU because he remained politically active in prison and published a blog. Lauren Regan, his criminal defense attorney, with whom I toured the Pacific Northwest in the fall of 2007, noted that the only difference between Daniel and other Green Scare defendants who were not transferred was “the outreach that he was doing and the voice that he had behind bars.”
The CCR’s legal action recently forced the Bureau of Prisons (BOP) to provide McGowan with documents outlining the reasons for his transfer. On Monday, April 1st, 2013, Daniel published an article in the Huffington Post entitled: “Court Documents Prove I Was Sent to the Communications Management Unit (CMU) for My Political Speech.” On Thursday he was seized at the halfway house and confined in the Metropolitan Detention Center in Brooklynbecause he’d published the blog. The BOP cited its regulation prohibiting prisoners from “publishing under a byline” to justify this action. They neglected to mention that the regulation in question was dropped in 2010, three years after a federal court had declared it unconstitutional.
This is a “let me get this straight” moment…The BOP retaliated against McGowan for writing constitutionally protected political blogs by placing him in a Communication Management Unit and then after he was released, re-imprisoned him when he exercised his free speech rights by writing an article complaining about it. Kafka is twirling in his grave.
The CCR’s lawyers scrambled, the BOP acknowledged its “mistake” and McGowan was back in the halfway house the next day.
But was this really a mistake? It could be a case of bureaucratic incompetence, but there is another more ominous possibility. Perhaps the BOP knew that the regulation was no longer in force, and that his attorneys would move quickly to obtain his release, but they decided to cite it as an excuse to put Daniel through 24 hours of hell to punish him and deter others. He won a victory, but he paid a price. Perhaps one day his attorneys will through further discovery get to the bottom of this, but who knows when, if ever, that will happen.
I suspect we’ll never know, but given the BOP’s history and its actions last Friday, I remain suspicious. The CCR’s press release states that when he was returned to the halfway house, “Daniel was provided with a list of prohibited activities by halfway house staff, which he was required to sign. The list forbids him any media contact without BOP approval, though BOP regulations only require preapproval of in-facility interviews. It also prohibits him from publishing any writing of his own without prior BOP permission. As far as we know, this is a made-up rule applied only to Daniel, in a further attempt to chill his freedom of speech.”
I can’t help but think, as we approach the 60th anniversary of my parents’ execution, how important the publication of my parents’ prison correspondence was in galvanizing the movement that fought to save them. What if the federal government had muzzled them in a Communication Management Unit? Even in the depths of the McCarthy period the government didn’t consider such an action. But today, after 60 years of “progress” thousands of federal prisoners are gagged in this manner.
NEW YORK — The latest twist in the saga of Daniel McGowan, an environmental activist who was convicted of arson linked to the Earth Liberation Front, has his lawyer exasperated with the Bureau of Prisons, which is now conceding it cannot stop him from blogging for The Huffington Post.
McGowan was taken from his Brooklyn halfway house by marshals and put in jail last week in response to a blog post he wrote that was critical of the Bureau of Prisons. After his lawyers complained that his rights were being infringed upon, he was re-released to the halfway house where he had been serving out the final months of his term.
But there was a twist: Upon being released, McGowan was forced to sign a documentstating that “writing articles, appearing in any type of television or media outlets, news reports and/or documentaries without prior BOP approval is strictly prohibited.” Violating that agreement, which he signed under duress, might mean going back to jail.
It was, said Rachel Meeropol, his lawyer at the Center for Constitutional Rights, a form of “fast and loose retaliation.”
When HuffPost contacted the Bureau of Prisons’ regional office in Philadelphia, however, they quickly backtracked on the agreement.
“He’s not prohibited from doing that, and we’re going to address it with the (halfway house) contractor,” said Lamine N’Diaye, a BOP public information officer. If McGowan wrote another HuffPost blog today, said N’Diaye, “he’s not going to be punished.”
The BOP’s new position may be on firmer legal ground than the contract McGowan was forced to sign: as the CCR pointed out when they fought for his rerelease, a federal judge ruled in 2007 that attempts to prohibit inmates from writing articles under their own byline are unconstitutional.
“This chain of events is so ridiculous, it is almost laughable,” said Meeropol. “What is sobering, however, is the impact of these repeated ‘mistakes’ — a dedicated activist is being chilled from sharing important information with the public in violation of the First Amendment and the Bureau of Prison’s own regulations.”
By Nick Pinto Tue., Apr. 9 2013 at 5:12 PM
After more than seven years, the stack of dehumanizing and seemingly unconstitutional interactions between Daniel McGowan and the American prison system is now piled so high it is teetering over into a recursive mess of bleak and Kafkaesque absurdity.
Last Monday, McGowan published a piece on the Huffington Post that laid out much of his situation to date. After years in prison for his role in environmentally motivated property destruction that was prosecuted as acts of terrorism, he wrote, he was finishing up the remaining months of his sentence in a halfway house in Brooklyn.
The various perversions of the case that sent McGowan away are well documented in the documentary (streaming on Netflix!) If a Tree Falls: A Story of the Earth Liberation Front. But, as McGowan wrote, less publicized is what happened to him a year into his prison term: Despite a flawless disciplinary record, McGowan was transferred to an experimental new Communications Management Unit, a supermax-like extreme-isolation facility some have dubbed a “Little Guantanamo.”
Why was McGowan transferred to a CMU? He never got a good answer to that question, even after a Freedom of Information Act request, so, along with other CMU inmates, he filed a lawsuit challenging the constitutionality of the CMUs and alleging that they are effectively political prisons designed to silence the voices of people whose message the government doesn’t like. As it turned out, McGowan was right: Bureau of Prisons memos discovered through the lawsuit appear to link his transfer to the CMU to the fact that he continued to write things the government found politically objectionable.
“While incarcerated and through social correspondence and articles written for radical publications, inmate McGowan has attempted to unite the radical environmental and animal liberation movements,” one memo states, before dilating on other political statements McGowan made in interviews and his own writing.
McGowan wrote about all of this in his Huffington Post piece last Monday. Two days later, the staff at the halfway house to which he had been assigned told him that his work permit had been revoked on order of the Bureau of Prisons. The next morning, federal marshals arrived and brought him to the Metropolitan Detention Center. Once there, he was presented with a document explaining that he had violated the terms of his release to the halfway house. Specifically, the incident report stated that McGowan had violated a prison regulation that stated “an inmate currently confined in an institution may not … act as a reporter or publish under a byline.”
That’s right: McGowan was sent back to jail for writing about how he’d been imprisoned in a CMU for writing things.
There’s more: The regulation that the Bureau of Prisons cited to justify returning him to jail had actually been declared unconstitutional by a federal court in 2007, and the Bureau of Prisons had finally taken it off the books in 2010. McGowan’s lawyers mentioned this to the bureau and to the lawyers representing the government in his lawsuit, and he was re-released to the halfway house on Friday.
But that’s not the end of it. Back at the halfway house, staff presented McGowan with a document and directed him to sign it. The document stated that “he is not permitted to have any contact with the media without approval from the BOP’s Residential Reentry Manager. Accordingly, Resident McGowan was advised that writing articles, appearing in any type of television or media outlets, news reports and or documentaries without prior BOP approval is strictly prohibited.”
It’s worth noting that McGowan hadn’t been asked to sign this document when he first arrived at the halfway house, nor, as far as his lawyers can tell, has anyone there been asked to sign it. In fact, there’s nothing in the Bureau of Prison’s published media policythat requires pre-approval before publishing anything.
“There is no national prohibition on publishing,” Chris Burke, a spokesman for the Bureau of Prisons, confirmed this afternoon.
“I thought I had lost my ability to be surprised by what the Bureau of Prisons does years ago,” said Rachel Meeropol, a lawyer with the Center for Constitutional Rights who’s representing McGowan. “But restricting an individual’s freedom of speech in this manner is truly surprising. It’s beyond ironic that Daniel was retaliated against and returned to prison for publishing a blog about being retaliated against for speaking out in prison.”
Here’s the incident report explaining McGowan’s return to prison:
And here’s the statement McGowan was required to sign upon his return to the halfway house:
Go ahead and try to count how many things are wrong with this picture! Note to BOP: The policy in question (whether prisoners are allowed to write under a byline) has not been in place since 2007! Way to be updated about your own policy, BOP!
BOP Invents Special Restriction for Environmental Activist Daniel McGowan: No Publishing Articles McGowan Released from MDC Prison Friday, Returned to Halfway House
April 8, 2013, New York – Today, attorneys for activist Daniel McGowan at the Center for Constitutional Rights released the following update on his situation:
McGowan, who was released from prison in December and is serving out the last six months of his sentence at a halfway house, is a plaintiff in a Center for Constitutional Rights lawsuit, Aref v. Holder, challenging the constitutionality of the federal Bureau of Prisons (BOP) experimental Communications Management Units (CMUs) where he was kept for four years. New documents uncovered in the case indicate he was placed in these highly restrictive experimental units as retaliation for his political writings on current events and issues while he was in prison.
Aref v. Holder challenges the violation of prisoners’ fundamental constitutional rights, including the right to due process. Attorneys say that because transfer to CMUs are not based on facts or discipline for infractions, a pattern of religious and political discrimination and retaliation for prisoners’ lawful advocacy has emerged. Daniel McGowan recently amended the complaint to include claims of retaliation for First Amendment protected speech.
For information about CCR’s federal lawsuit challenging CMUs, visit the
Aref, et al. v. Holder, et al case page or
The law firm
Weil Gotshal & Manges LLP and attorney
Kenneth A. Kreuscher are co-counsel in the case.
The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change.
From the Huffington Post
UPDATE: 5:25 p.m. — Lawyers for environmental activist Daniel McGowan said in a statement Friday afternoon that he had been returned to his halfway house in Brooklyn. They added that they had confirmed McGowan was jailed by federal marshals on Thursday for his Huffington Post blog post — on the basis of a prison regulation that was declared unconstitutional by a judge in 2007.
Their statement read:
The Bureau of Prisons did not immediately return a request for comment.
The earlier story …
NEW YORK — The jailing of environmental activist Daniel McGowan is under review, a Federal Bureau of Prisons (BOP) official said Friday morning.
McGowan, who pleaded guilty to arson linked to the Earth Liberation Front in 2006, was serving out the final months of his seven-year sentence in a Brooklyn halfway house when he was jailed by federal marshals Thursday morning, allegedly for writing a commentary on The Huffington Postcritical of a harshly restricted federal prison unit in which he had spent time.
Tracy Rivers, a residential reentry manager for the BOP in New York, told HuffPost Friday morning, “We are reviewing this case to determine if the actions that were taken were appropriate.”
Rivers declined to say more about why McGowan was moved to the Metropolitan Detention Center, citing privacy issues. But she noted that a determination would be made in McGowan’s case by the end of Friday.
In general, Rivers said, prisoners can be punished for violating a BOP rule that prohibits giving interviews to the news media without official approval. But that rule says nothing about prisoners writing blog posts.
McGowan’s wife, Jenny Synan, told HuffPost that neither he, his lawyers nor a BOP official she talked to about the case had heard of a regulation prohibiting prisoners from writing blog posts.
In a statement Thursday, McGowan’s lawyers at the Center for Constitutional Rights said, “If this is indeed a case of retaliation for writing an article about the BOP retaliating against his free speech while he was in prison, it is more than ironic, it is an outrage.”
UPDATE: 1:25 p.m. — Daniel McGowan may soon leave jail. His attorney with the Center for Constitutional Rights, Rachel Meeropol, told HuffPost Friday afternoon, “We have been told by the BOP that he will be sent back to the halfway house today.”
Posted: 04/04/2013 5:50 pm EDT | Updated: 04/05/2013 5:54 pm EDT
NEW YORK — The federal government on Thursday jailed Earth Liberation Front activist Daniel McGowan in response to an article he wrote for The Huffington Post, his wife Jenny Synan said. The HuffPost story, which was published April 1, charged the Federal Bureau of Prisons, citing documents McGowan had obtained, with transferring him to a high security prison unit in order to restrict his political speech during his incarceration.
Synan told HuffPost that she asked a BOP official why her husband had been re-imprisoned after his release to a halfway house in December. She said the official told her that the HuffPost article violated a term of his release that restricted him from interacting with the media.
Synan expects the BOP to keep her husband locked up until the official end of his seven-year sentence in June. His 38th birthday, she said, is next month. “We were thinking, ‘Oh my God, first birthday home!’”
McGowan’s attorney, Rachel Meeropol of the Center for Constitutional Rights, confirmed that McGowan was taken from a Brooklyn halfway house Thursday morning and brought to the Metropolitan Detention Center. She said she believed but had not yet confirmed that McGowan’s jailing was connected to his recent blog post.
“Needless to say, this is outrageous,” she said. “I’ve never heard of a regulation limiting an individual from blogging or contacting the news media.”
The Center for Constitutional Rights released a statement Thursday afternoon about McGowan being re-incarcerated:
McGowan pleaded guilty in 2006 to federal charges of arson and conspiracy to commit arson, for fires linked to the animal rights group Earth Liberation Front. Between 2008 and 2010, he served time in the Communication Management Unit (CMU) at the U.S. Penitentiary in Marion, Ill. Prisoners in the unit, which has been dubbed “Little Guantanamo” by critics, are isolated from other prisoners and severely restricted in their contact with their families.
The Center for Constitutional Rights is challenging the Bureau of Prisons’ use of CMUs as part of a federal lawsuit. A recently released court document revealed that McGowan was apparently transferred to the CMU at least in part because of his communications with the outside world.
“While incarcerated and through social correspondence and articles written for radical publications, inmate McGowan has attempted to unite the radical environmental and animal liberation movements,” the internal memo states.
“In short, based on its disagreement with my political views, the government sent me to a prison unit from which it would be harder for me to be heard, serving as a punishment for my beliefs,” McGowan wrote in his blog post.
Synan noted the irony that the BOP, by jailing him for speaking out, had proven her husband’s point. “They already have a lawsuit against them for things like this,” she said. “He just posted his thing a few days ago about all this stuff — about his political beliefs and speech — and they do something to him because of his post about this. It’s crazy.”
The Bureau of Prisons did not immediately respond to a request for comment on McGowan, but national spokesman Chris Burke said that under a general media policy, “inmates cannot do interviews without permission. So if there’s some sort of a phone interview or a sit-in interview, those have to be pre-approved.”
But Stuart Whatley, executive blog editor at The Huffington Post, said blog posts cannot be compared to interviews.
“The HuffPost blog is a platform for contributors to share opinion, commentary and their thoughts on any topic of their choosing,” Whatley said. “As our guidelines explicitly state, ‘you can write about anything you want. Huffington Post does not select or approve your topics.’”
McGowan previously wrote for HuffPost in 2009 while imprisoned in the “U.S. Gitmo” unit.
UPDATE: Friday, April 5 — Daniel McGowan has been returned to his halfway house after his lawyers confirmed that he had been jailed for his HuffPost blog. More details here.
Daniel has had an article published on the Huffington Post today. It is called “Court Documents Prove I was Sent to Communication Management Units (CMU) for my Political Speech”
The article details what has happening with his lawsuit against the Bureau of Prisons (Aref v Holder) and placement in the Communication Management Unit (CMU) during his stay in the Bureau of Prisons.We would greatly appreciate if you were able to share it with friends on Facebook, Twitter and listserves. If you were able to make comments on the site, it would help the article be featured more prominently on the site as well.