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Ayyad v. Holder

United States District Court, D. Colorado

September 24, 2014

ERIC H. HOLDER, JR., Attorney General of the United States, CHARLES E. SAMUELS, JR., Director of the Federal Bureau of Prisons, PAUL M. LAIRD, Regional Director, North Central Region, DAVID BERKBILE, Warden, United States Penitentiary — Administrative Maximum, and JOHN DOES 1 THROUGH 5, sued in their official capacities, Defendants.


WILEY Y. DANIEL, Senior District Judge.


THIS MATTER is before the Court on Defendants' Motion for Summary Judgment and Defendants' motion to reconsider a portion of my Order of October 10, 2012 ["October 2012 Order"] on Defendants' Motion to Dismiss Ayyad's Claims as Moot. A hearing was held on these motions on Thursday, September 4, 2014.

Plaintiffs Nidal Ayyad [Ayyad"] and Mahmud Abouhalima ["Abouhalima"] [collectively "Plaintiffs"] are federal inmates who are or were until fairly recently incarcerated at the United States Penitentiary ["USP"]-Administrative Maximum ["ADX"] in Florence, Colorado. Their cases were consolidated, and they asserted claims under the First and Fifth Amendments to the Constitution regarding (1) restrictions upon their incoming and outgoing communications under Special Administrative Measures ["SAMs"] imposed upon them in 2005; and (2) the imposition and maintenance of extreme conditions of confinement at the ADX under the SAMs without due process of law. SAMs are imposed upon direction of the Attorney General when they are determined to be "reasonably necessary to protect persons against the risk of death or serious bodily injury." 28 C.F.R. § 501.3(a).

Defendants filed their Motion for Summary judgment on March 25, 2011. While this motion has been pending for some time, it was not fully briefed until July 2014. Thus, Plaintiffs' consolidated response was filed on January 9, 2012, and a revised response reflecting certain restrictions, redactions and modifications was filed on May 17, 2012. Defendants filed a reply as to the portion of the motion regarding Abouhalima's claims in September 2012. Abouhalima filed a supplemental response in October 2013, and Defendants filed a supplemental reply in November 2013.

As to Ayyad, the filing of Defendants' reply brief was stayed pending a ruling on Defendants' Motion to Dismiss Ayyad's Claims as Moot ["motion to dismiss"]. After completion of the jurisdictional discovery, Defendants' reply to the summary judgment motion as to Ayyad was filed on July 1, 2014. Ayyad filed a surreply on July 18, 2014.

Defendants' motion to dismiss argued that Ayyad's claims were moot because his SAMs had expired and because he was transferred from ADX to another, less restrictive, Bureau of Prisons ["BOP"] facility-the Communications Management Unit ["CMU"] at Terre Haute, Indiana. In the October 2012 Order, I granted the motion to dismiss as to Ayyad's due process claim challenging his ongoing confinement in ADX and his request for injunctive relief for a transfer to a facility with less restrictive conditions of confinement. With the dismissal of the ongoing confinement claim, Ayyad no longer asserts a challenge to the SAMs. I denied the motion to dismiss as to Ayyad's due process claim regarding his transfer to ADX, and deferred ruling as to Ayyad's First Amendment claims so that jurisdictional discovery could be taken.

Ayyad later conceded in his Surreply in Opposition to Defendants' Motion for Summary Judgment that his First Amendment claims were moot, and those claims were dismissed on August 19, 2014. Since Ayyad's only remaining claim is his due process claim challenging his transfer to ADX, I deny as moot the Motion for Summary Judgment as to Ayyad's due process claim as to his ongoing confinement in ADX, his request for injunctive relief for a transfer from ADX, and his First Amendment claims.

After jurisdictional discovery was completed, the parties filed supplemental pleadings as to the motion to dismiss. Defendants argued that Ayyad's remaining due process claim should be dismissed based on that discovery. Because I had previously denied the motion to dismiss as to that claim, I ruled by Order of June 10, 2014, that I would treat Defendants' argument as a motion for reconsideration of that ruling. Ayyad addressed whether reconsideration of that ruling is appropriate in a document filed in June 2014, and a reply was filed in July 2014. I now address that issue.


A. Background and Standard of Review

Ayyad alleges that his "transfer to the ADX without notice and an opportunity to be heard constituted a deprivation of a liberty interest without due process of law in violation of the Fifth Amendment to the United States Constitution." (Third Amended Complaint, ¶ 131.) Ayyad seeks a declaration that he "has been and is being deprived by Defendants of his liberty interest in avoiding indefinite confinement under conditions constituting an atypical and significant hardship, such deprivation being without due process of law in violation and contravention of the Fifth Amendment to the United States Constitution." ( Id., Prayer for Relief ¶ A.)

Defendants ask that I reconsider that portion of my October 2012 Order denying the motion to dismiss as to this claim. This request "invok[es] the district court's general discretionary authority to review and revise interlocutory rulings prior to entry of final judgment.'" Fye v. Okla. Corp. Com'n, 516 F.3d 1217, 1224 n. 2 (10th Cir. 2008) (quotation omitted). In deciding such a request, a court is not bound by the requirements of Rule 59(e) and 60(b). Id. "A motion to reconsider... should be denied unless it clearly demonstrates manifest error of law or presents newly discovered evidence.'" Id .; see also Fye, 516 F.3d at 1224 (district court did not abuse discretion in denying motion to reconsider when the decision "was not a clear error of judgment' and did not exceed[ ] the bounds of permissible choice in the circumstances'") (quotation omitted). "[A]s a practical matter, [t]o succeed in a motion to reconsider, a party must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision.'" Nat'l Bus. Brokers, Ltd. v. Jim Williamson Productions, Inc., 115 F.Supp.2d 1250, 1256 (D. Colo. 2000) (quotation omitted).

Defendants' mootness argument raises a jurisdictional dispute under Fed.R.Civ.P. 12(b)(1). Accordingly, I am "free to weigh the evidence and satisfy [myself] as to the existence of [the court's] power to hear the case...." Osborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990). I "must decide the jurisdictional issue, not simply rule that there is or is not enough evidence to have a trial on the issue." Id .; see also Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001).

B. Analysis

"Under the constitutional mootness doctrine, the suit must present a real and substantial controversy with respect to which relief may be fashioned.'" Jordan v. Sosa, 654 F.3d 1012, 1023-24 (10th Cir. 2011) (quotation omitted). The doctrine focuses on "whether a definite controversy exists throughout the litigation and whether conclusive relief may still be conferred by the court despite the lapse of time and any change of circumstances that may have occurred since the commencement of the action.'" Id. at 1024 (quotation omitted). "The hallmark of a moot case or controversy is that the relief sought can no longer be given or is no longer needed.'" Unified Sch. Dist. No. 259 v. Disability Rights Ctr. Of Kan., 491 F.3d 1143, 1150 (10th Cir. 2007) (quotation omitted).

In deciding that Ayyad's due process claim was not mooted by his transfer from the ADX to the CMU and the termination of his SAMs, I found in the October 2012 Order that the Tenth Circuit's opinion in Rezaq v. Nalley, 677 F.3d 1001 (10th Cir. 2012), was controlling. I stated, "[e]ven though Ayyad has been transferred out of ADX, he is still in a CMU-a very restrictive facility as noted by the Tenth Circuit." (October 2012 Order at 10.) "Defendants have not shown that new hearings with the due process that Ayyad claims he was entitled to could not result in Ayyad's return to general population conditions." ( Id. at 10-11) (citing Rezaq, 677 F.3d at 1009.)

While Defendants argued that Ayyad's claim that he could obtain a different placement if new hearings were held was speculative or highly unlikely I disagreed, stating that even if the relief granted "is unlikely to result in transfers to less restrictive conditions, it is relief nonetheless and the case is not moot.'" (October 2012 Order at 11) (quoting Rezaq, 677 F.3d at 1009-10). I also rejected the argument that Ayyad obtained the relief he requested through his transfer to the CMU, i.e., transfer to a less restrictive environment, as I found it was possible that some remedy could still be fashioned. ( Id. at 11.) Finally, I rejected Defendants' argument that the claim should be dismissed on grounds of prudential mootness.

Defendants argue that I should reconsider the above ruling based on newly discovered evidence, i.e., the jurisdictional discovery. I first reject their argument that I reconsider my ruling regarding prudential mootness. Defendants have not cited any new facts or evidence that persuade me that dismissal is appropriate on this ground.

As to constitutional mootness, Defendants assert that Ayyad's case is moot under both prongs of the test. The first-whether there are ongoing, long-term consequences- requires a causal connection between the original injury and the inmate's current conditions. Ongoing, long-term consequences are present when the record shows that the inmate's current conditions are a "byproduct" of the original conditions or policy that is the subject of the inmate's lawsuit. Rezaq, 677 F.3d at 1009 (noting that if an inmate's "current conditions are a byproduct of their initial transfers to ADX, then long-term consequences may persist and an injunction may serve to eradicate the effects of [the BOP's] past conduct.'" Id. (quotation omitted).

Even if there is evidence that the inmate's new conditions are a byproduct of the alleged violation, the case may still be moot unless there is an existing remedy that will "mitigate" the byproduct or consequences of the defendants' original actions. Rezaq, 677 F.3d at 1009. A remedy that has the potential to "mitigate" an injury "will have some effect in the real world." Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1110 (10th Cir. 2010). I now turn to my analysis of these issues.

1. Whether Ayyad's Transfer is a Byproduct of his ADX Placement

Defendants note that Ayyad's due process claim is the same claim brought by his co-conspirators in Rezaq. However, in Rezaq, the court assumed as to a motion to dismiss that the inmates' CMU designations were a consequence or byproduct of their initial transfers to the ADX. See Rezaq, 677 F.3d at 1009. Here, this assumption is disputed based on the jurisdictional discovery, and Defendants argue that I should rely on this new evidence and dismiss the due process claim as moot.

Defendants argue that the discovery fills in the evidentiary record and establishes that "new hearings with the due process that Ayyad claims he was entitled to could not result in Ayyad's return to general population conditions." ( See October 2012 Order at 10-11.) They contend that Rezaq compels the conclusion that Ayyad's claim is moot because the evidence establishes that Ayyad's transfer to the CMU is not a byproduct of his ADX placement, but the result of an independent evaluation process in which prior ADX placement plays no role. They further argue that the decision to place Ayyad in the CMU was based entirely on Ayyad's conduct, as shown by the Declaration of David Schiavone, attached as Exhibit 1 to Defendants' Supplemental Pleading in Support of Motion to Dismiss ["Schiavone Decl."], ¶¶ 11-25. Ayyad asserts in response that the argument that his ADX placement was not considered in the CMU is contradicted by Defendants' own witness and documentation provided in discovery.

I agree with Ayyad that the jurisdictional discovery shows that while his conduct was considered in connection with his transfer to the CMU ( see, e.g., ECF No. 344-2-Notice to Inmate of a Transfer to a Communications Management Unit), his transfer to the CMU was at least in part a byproduct of his incarceration at ADX under SAMs. Several of the documents produced in discovery support this finding.

Thus, the "Rationale for Re-designation", recommending to the Regional Director that Ayyad be sent to a CMU, states that, " Since the SAM was not renewed, the Warden at [ADX] has recommended inmate Ayyad be transferred from the institution to a CMU since the inmate no longer requires the level of physical security and controls afforded by the institution. " (Ayyad's Supplemental. Resp. to Defs.' Mot. to Dismiss ["Pl.'s Supplemental Resp."], Ex. 9) (emphasis added). It further states that Ayyad "requires increased monitoring of communications with persons in the community" and that "[t]he CMU is more appropriate to monitor this inmate than typical placement in the Pre-Transfer Unit of the Step-Down Program" at ADX. ( Id. )

Similarly, in the "Comments" section of Ayyad's CMU Referral form, the Correctional Programs Division and the Executive Assistant recommend that Ayyad be transferred to a CMU pending his placement in the general population of a federal penitentiary: "AYYAD has been housed in the H-unit (SAM) of the ADX, and has more recently progressed to the J-Unit, still with SAMs restrictions. Recently, SAMs was not renewed. CTU staff recommend placement in a CMU to allow staff the opportunity to assess his behavior in a less restrictive environment before placement in an open population. " (Pl.'s Supp. Resp., Ex. 10) (emphasis added.) I find from these documents that the nature of Ayyad's incarceration at ADX, where he was under restrictions related to his communications, played a part or contributed to his transfer to CMU where the restrictions on his communications could continue.

2. Whether There Is a Real World Remedy

Defendants also assert that Ayyad's claims are moot because ordering additional process to address his transfer to the ADX will have no effect on the BOP's decision to designate him to a CMU, even if the conclusion of the new ADX process was that Ayyad should not have been transferred to the ADX. That is because the designation was the result of an entirely separate, independent process unrelated to the ADX designation. ( See Schiavone Decl. at ¶¶ 13-18.) Defendant argue that more process about Ayyad's transfer to the ADX would not override the BOP's assessment that his communications may still pose risks to institutional security and public safety. ( Id. ¶ 29.) Thus, Defendants assert there is thus no effectual relief for the Court to award.

I reject Defendants' argument. The CMU designation criteria they rely on would only come into play upon a recommendation for a transfer to a CMU. No evidence is offered to suggest that there ever would have been, or would be, a CMU designation process or evaluation absent the intervening assignment to and recommendation from the ADX. In other words, if Ayyad had received adequate process in the first place, he may not have been placed in ADX and there may have been no recommendation that he ever be transferred to the CMU (as it was the ADX warden that made that recommendation based on the fact that the SAMs were being terminated as to him and there was a need for increased monitoring of his communications). The fact that other wardens in other institutions could have made that recommendation, as Defendants assert, does not mean that they would have made that recommendation. Even the possibility of a partial remedy is sufficient to prevent a case from being moot. Based on the foregoing, I deny Defendants' request that I reconsider my October 2012 Order denying Defendants' motion to dismiss.


A. Facts

Due to the voluminous nature of this record, I cite only an abbreviated recitation of the facts.[1] I have, however, considered all the facts and evidence cited by the parties, "view[ing] the evidence and draw[ing] all reasonable inferences therefrom in the light most favorable'" to the Plaintiffs. Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000) (quotation omitted). I cite to the record only when the facts are disputed or when I deem it necessary.

I also note that responses disputing or denying a fact that are not supported by evidence in the record raise no genuine dispute of a material fact. See Practice Standards, III.B.4 ("Any denial shall be accompanied by... a specific reference to material in the record supporting the denial"); Fed.R.Civ.P. 56(c)(1)(A) (a party must "cit[e] to particular parts of materials in the record" in order to show a genuine dispute). To the extent a party has disputed a fact but does not cite facts or evidence to support the dispute (but rather other additional facts), I have deemed these non-responsive statements that raise no genuine dispute of a material fact. See Gooden v. Timpte, Inc., No. 99 N 795, 2000 WL 34507333, *3 n.3 (D. Colo. June 29, 2000) (when party denies a fact but only offers a "citation to evidence in the record which is unresponsive to the factual assertion, " the "undisputed fact is deemed admitted").

Self-serving statements, opinions, and personal views raise no genuine dispute where they relate to facts that are supported by competent evidence. Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991). Speculation, legal argument, and conclusory statements also raise no genuine dispute. See Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). Finally, disputed facts that are based on inadmissible evidence, such as hearsay or testimony not based on personal knowledge, has been disregarded. See Fed.R.Civ.P. 56(c)(2). I now turn to the facts alleged by the parties.

Plaintiffs' Crimes of Convictions, Affiliations, and Prior Incarceration

Plaintiffs were part of the group of criminal associates who were convicted in connection with a plot to bomb the World Trade Center in 1993. The attack killed six people, injured more than a thousand others, and caused hundreds of millions of dollars in damage. Plaintiffs were each convicted after a jury trial of multiple felonies in connection with the bombing and are each serving sentences of more than 100 years. They are not eligible for parole, as there is no federal parole. They are serving sentences in excess of their remaining years, and will die in prison.

The FBI has information showing that both Plaintiffs were associated with an Egyptian terrorist organization, al-Gama'a al-Islamiyya, also known as the Islamic Group. (Ex. A-1, Decl. of FBI Agent Donald R. Shannon, Jr. ["Shannon Decl."], ¶ 6.)[2] Based on Plaintiffs' conviction for their participation in the World Trade Center bombing, FBI Agent Shannon testified that the government considers them to have been important Islamic Group operatives. (Shannon Decl., ¶ 8.) Plaintiffs deny their association with the Islamic Group, and note that at no time during their prosecutions did the government ever assert that either of them was an "Islamic Group operative", let alone "important" ones. (Ex. 7, Shannon Dep., 74:4-10; Ex. 1, Abouhalima Decl., ¶ 27); Ex. 2, Ayyad Decl., ¶ 21.) Additionally, they assert that Defendants' own documents demonstrate that the government does not consider them to be "important Islamic Group operatives." (Exs. 8 and 9-H-Unit Classification Summarys for Plaintiffs.)

Plaintiffs spent eight years, from 1994 to 2001, in general population housing units at United States Penitentiaries, which are high-security prisons. During this time, they held laundry, orderly, and other jobs alongside other inmates; ate their meals with other inmates; were able to walk freely in their housing units and on the prison yard; and were allowed to play sports with other inmates. They also were allowed to communicate with family in the United States and abroad on a daily basis using phones that were available at any time, without prior permission; experienced delays of only a few days for prison staff to read, translate, and release incoming and outgoing mail, whether in English or Arabic; prayed in congregation; had contact visits with their families at tables in the visiting room with other inmates; were allowed to communicate with the news media; and were given approximately twenty phone calls per month.

On September 11, 2001, Plaintiffs were removed from their open population units and put into Special Housing Units. (Ex. 96 -"Following the tragic events of September 11, 2001, all inmates in the... (BOP) who were convicted of, charged with, associated with, or in any way linked to terrorist activities were placed in Administrative Detention as part of an immediate national security endeavor.")

Transfers to ADX and Imposition of SAMS

On October 4, 2002, Ayyad was transferred to the ADX. SAMs were imposed on him in 2005, but they expired in March 2012. He was transferred from the ADX to the CMU at Terre Haute, Indiana, where he has been incarcerated since May 15, 2012.

Abouhalima was transferred to the ADX on March 23, 2003. SAMs were imposed on him in March 2005 and he was placed in the H Unit, and remain imposed today. Although the government contemplated imposing SAMs earlier, after the September 11th attacks, it did not do so at that time. (Ex. 96-"[w]e anticipate that some or all of these inmates will have SAMs approved in the near future.")

It is undisputed that neither Plaintiff was given notice, nor an opportunity to be heard, prior to his transfer to the ADX. Plaintiffs assert they were not provided with hearings regarding their transfers to the ADX until seven years after those transfers occurred, and the hearings did not address the SAMs or Plaintiffs' later placement in the H Unit of the ADX. Defendants acknowledge that Plaintiffs had "retroactive" ADX placement hearings. Also, it is undisputed that neither of the Plaintiffs was given notice, nor an opportunity to be heard, prior to the imposition of SAMs.

Upon arrival at the ADX, Defendants contend that Plaintiffs had the opportunity to raise challenges to their transfers, both during Program Reviews and through the BOP's administrative remedy program. (Ex. E-1, Decl of Warden Jeffery Keller ["Keller Decl."], ¶ 28.) Both Plaintiffs challenged their transfers via the BOP's administrative program and asked at every opportunity about the reason for the transfers. Plaintiffs assert they were not given any reason other than their convictions for being sent to ADX, and were not told of any way to be transferred back to their pre-9/11 statuses. (Abouhalima Decl., ¶¶ 104-105; Ayyad Decl., ¶¶ 63-64, 197-198; see also Ex. 99.)

Ayyad's H Unit Classification Summary states, "[W]e recommend he be housed in an ADX-GP Unit for an indeterminate period of time." (Ex. 9.) While in the general population unit ["ADX-GP"], Plaintiffs were housed in single cells containing a shower, a cement bed, and two gates at the front. The inner gate had a slot for meal trays. Meals were consumed in the cells. When both doors were closed, it was almost impossible for Plaintiffs to communicate with other inmates. Outside recreation occurred in groups, two or three times per week, and inside recreation was provided on the other days.

Defendants assert that the decision to place an inmate at ADX is made using the BOP's classification system, which provides criteria for assessing the security needs of each inmate. (Keller Decl., ¶ 9.) When Plaintiffs were designated to ADX, Program Statement 5100.07 governed the transfer to ADX, which lists the ADX and USP Marion as "Exceptions" to the normal Central Inmate Monitoring procedures. (Ex. 98, at US015032.) Plaintiffs dispute that their transfers to ADX were effectuated via the classification system or Program Statement 5100.07. They assert their transfers occurred pursuant to a memorandum issued after the September 11th attacks ordering all federal prisoners convicted of terrorism-related crimes to be put in solitary confinement and then to be considered for transfer to the ADX. (Exs. 96, 97; Abouhalima Decl., ¶ 102.)

According to Defendants, the BOP conducted multi-level regional reviews before transferring Plaintiffs to the ADX. (Keller Decl., ¶¶ 13, 16, 22.)[3] In Ayyad's case, the process involved an evaluation by the institution, the BOP's Regional Office for Ayyad's institution, and the North Central Regional Office where the ADX is located. (Keller Decl., ¶¶ 13.a., 16-21; see also Ex. E-3-referral packet for Ayyad.) Following that review, the North Central Regional Director determined that placement in the ADX was appropriate, and Ayyad was transferred to the ADX. (Keller Decl., ¶ 21.) Ayyad disputes that placement in ADX was appropriate.[4]

In Abouhalima's case, the review process involved an evaluation by the institution and the North Central Regional Office. (Keller Decl., ¶¶ 13.b., 22-28; see also Ex. E-4-referral packet for Abouhalima.) Following this review, the North Central Regional Director determined that placement in the ADX was appropriate, and Abouhalima was transferred to the ADX. (Keller Decl., ¶ 27.) Abouhalima also disputes that his placement was appropriate.[5]

In December 2011 and 2012, before renewal of the SAMs for the upcoming years, Abouhalima met with ADX and FBI representatives. An FBI memo documenting the 2011 meeting stated that "the SAM renewal justification EC will be submitted via separate correspondence." It also stated that "the inmate asked, several times, what he could do to be removed from SAM monitoring, to which the investigator responded, cooperation with BOP staff and adherence to inmate protocols as outlined by BOP staff.'" (Abouhalima Supp. Resp., Ex. 3.) In the December 2012 meeting, Abouhalima was told that the SAMs would be renewed, but not the reason for the renewal. Abouhalima then asked whether the original basis for the imposition of the SAMs still existed. The ADX/FBI staff stated they could not tell him the answer to his question. Abouhalima's SAMs were also renewed in March 2013 and March 2014. ( See Defs.' Notice Regarding Renewal of Special Administrative Measures for Pl. Abouhalima filed August 28, 2014 and Ex. 1 thereto.) Thus, he remains under SAMs at this time.

There is no fixed end date to Abouhalima's ADX confinement or the number of time SAMs, which expire at the end of the year, can be renewed. Defendants acknowledge that there is not a check-list of specific conduct that ensures transfer from ADX or the removal of SAMs, both of which are decisions based on the professional judgment of counterterrorism and correctional professionals. A March 19, 2009 memorandum to the FBI counterterrorism section states, "Due to the gravity of the offenses and length of sentences regarding ADX SAMs inmates, it is likely that SAMs measures will be in place for many of them for a number of years." (Ex. 127.)

Communications Before SAMs were Imposed

Defendants have information showing that, as recently as 2004, while incarcerated at the ADX, Plaintiffs were in contact with Spanish prisoners. (Shannon Decl., ¶ 9.) When this was discovered in February 2004, they were told to stop this correspondence and they complied. Plaintiffs did not receive an incident report for this.

In August 2004, an FBI investigation revealed that Plaintiffs had corresponded with Mohamed Achraf ["Achraf"], the leader of the Salafist Spanish terrorist cell known as the "Martyrs for Morocco" ["Martyrs"], and other persons who were linked to the Martyrs and were incarcerated in Spanish prisons. ( Id., ¶ 10.) The government did not learn until the investigation began that the Spanish prisoners with whom Plaintiffs had been corresponding, as well as Achraf, were affiliated with international terrorism.[6] The FBI also learned that Mohammed Salameh ["Salameh"], one of the convicted co-conspirators in the 1993 World Trade Center bombing, had corresponded with Achraf. The information obtained by the FBI indicated that Achraf was planning to execute a terrorist attack. (Ex. A-3; Shannon Decl., ¶ 11.) The FBI determined that Plaintiffs should not be alerted to the ongoing investigation, a part of which involved monitoring their incoming and outgoing communications. (Shannon Decl., ¶ 13; see also Ex. A-8.) Plaintiffs point out, however, that no terrorist acts occurred as a result of this correspondence. To the contrary, the documentation states that the FBI "does not believe operational or other guidance on the part of the 93 TRADEBOM inmates was involved" in Plaintiffs' correspondence with the Spanish prisoners. (Ex. 26.)

The investigation was ongoing when, in January 2005, the FBI received information that MSNBC planned to air a report about Plaintiffs' and Salameh's correspondence with Achraf and other terrorists. (Shannon Decl., ¶ 14.) The FBI was concerned that this broadcast would jeopardize the progress of the investigations in that it would alert the inmates and their correspondents that authorities were analyzing the correspondence. ( Id .; see also Ex. A-9 at USAB 670.) They also assert that the FBI determined that any benefit from not alerting Plaintiffs to the existence of the investigations was lost once the MSNBC report aired in February 2005. ( Id., ¶ 15.)

Plaintiffs do not dispute the substance of the facts in the previous paragraph, but dispute the credibility of same. They point out that by January 2005, correspondence with the Spanish prisoners had been halted at the BOP's request for nearly a year. They assert that the FBI could not credibly have been concerned that the MSNBC report would alert them that authorities were reviewing their correspondence as they were already aware of this fact. (Exs. 11, 118). Indeed, Plaintiffs point to an October 2004 Arabic newspaper report that they read which stated that authorities who had arrested Achraf found letters indicating that he had corresponded with some of the men from the World Trade Center bombing. ( See Abouhalima Decl., ¶ 128.)

Prior to airing of the broadcast, the FBI stated that Plaintiffs' correspondence "should be handled in accordance with established" Department of Justice ["DOJ"] and BOP policies. (Exs. 28, 29; see also Ex. 119-MSNBC News Report stating, "Federal officials tell NBC that the Justice Department failed to restrict communications to and from the three bombers because key officials didn't consider them all that dangerous."). Also prior to the broadcast, the FBI saw no need to impose SAMs on Plaintiffs, noting that "though SAMs are not in place on these... inmates, this particular facility [ADX] houses many high priority international terrorism subjects and restricts their communication; consequently, the opportunities that they would have to recruit other inmates is limited." (Ex. 126.)

Plaintiffs contend that the SAMs were imposed on them because of political pressure resulting from embarrassment at the NBC broadcast, rather than any actual security concerns relating to their correspondence. ( See Abouhalima Decl., ¶ 132-ADX warden stated to Plaintiff that "he knew" that he had already ceased writing letters at the staff's direction, "but that he was told to impose these restrictions on me, and there were a lot of politicians involved"; Ex. 27-noting that the need for the SAMs "may have been influenced by the broadcast, but it was not in retaliation for it.") Plaintiffs note an FBI email regarding the news report which states, "Among the key points of the proposed NBC story will be how could the BOP let this happen?'" (Ex. 12 at US4820.)

The government has determined that Abouhalima's letters to the Martyrs conveyed his respect for individuals associated with violent jihad. (Shannon Decl., ¶¶ 28-30; Exs. A-21, A-23, Ex. G-Abouhalima Dep. at 93:25-94:9.)[7] The government also has determined that Plaintiffs corresponded with other individuals linked to terrorism. (Shannon Decl., ¶¶ 30-31; Exs. A-12, A-7, A-24, A-25.) Defendants further assert that some of Abouhalima's post-SAMs correspondence were intended to radicalize the recipient. (Shannon Decl., ¶¶ 48-53; Ex. A-30.) Abouhalima disputes these assertions, stating he has refuted the incorrect characterizations of his correspondence and that the FBI struggles with training personnel to understand the distinction between an observant Muslim and a "radical" one.[8]

Communications Within ADX Before SAMS Were Imposed

Defendants assert that the government has determined that prior to the imposition of SAMs, Abouhalima promoted the conversion of BOP inmates to a radical interpretation of Islam. (Shannon Decl., ¶ 35; Ex. A-29 -Translation of July 16, 2002 letter from Abouhalima.) Abouhalima disputes the characterization of this letter.

Abouhalima was identified by the government as an influential member of the Sunni Muslim community while he was incarcerated at USP Lompoc. (Shannon Decl., ¶ 35; Exs. A-7, A-10, A-12.) While Abouhalima disputes this, it is undisputed that he was known as an inmate with knowledge of Islam who answered questions about Islam for other inmates.

Finally, the government has information showing that Abouhalima played a role in the 1997 murder of a correctional officer at USP Lompoc carried out by another inmate. (Shannon Decl., ¶ 35; Exs. A-7, A-10, Ex. A-12.) The BOP investigation following the murder concluded that "Abouhalima's defined leadership role and responsibility among the inmates in the Muslim Community and his ability to plan and execute violent acts presents a significant threat to the staff." (Shannon Decl., ¶ 35; Ex. A-26-Request for Redesignation.) The BOP determined that the safety and security of staff at USP Lompoc required that Abouhalima be transferred to another institution following the murder. ( Id.; Ex. A-27-Recommendation for Transfer; Ex. A-28-Close Supervision Transfer Request.)

Abouhalima disputes that he played a role in the attack of the correctional officer. (Abouhalima Decl., ¶¶ 74-85.) He was not given an incident report or criminally charged for involvement in the killing of the officer. (Ex. 23-Disciplinary History Report.) Abouhalima also asserts that notwithstanding the existence of the BOP paperwork, he never presented a threat to institutional staff warranting ADX placement, and was treated accordingly, until 9/11. (Abouhalima Decl., ¶¶ 51-65, 783-103; Ex. 23; Ex. 24.)

As to Ayyad, Defendants presented evidence that after an inmate assaulted Ayyad while he was incarcerated at USP Terre Haute, that inmate had to be placed in protective custody at his next four institutions because of threats from Muslim inmates. (Shannon Decl., ¶ 35; see also Ex. A-10 at USAB 644; Ex. A-6 at U.S. 5560; Ex. A-11 at U.S. 14626.)

How the SAMs Promote the Government's Interests

It is undisputed that the government has an interest in protecting national security, including preventing acts of terrorism against the United States and its interests. It also has an interest in promoting the security of its prisons and the safety of correctional personnel and inmates. Finally, the government has an interest in promoting the effective operation of its law enforcement agencies by establishing practices designed to efficiently allocate resources for fighting terrorism, including resources necessary to ensure the integrity of review of communications for SAMs inmates and resources required for counterterrorism operations that extend beyond the ADX.

1. National Security

The government determined that Abouhalima's SAMs help to ensure that he does not engage in communications that could jeopardize national security, and that without SAMs, there would be an increased risk that his communications could jeopardize national security. (Shannon Decl., ¶¶ 36, 58.) In response, Abouhalima asserts that there is a dispute within the government about whether the SAMs were warranted or appropriate, citing to an email from a New York FBI Agent regarding the types of reading materials Plaintiffs could receive while under the SAMs which states, "When it comes to the books... again, I have no objection to these guys reading what they want. The fact that they were all put under these SAMs based on those bullshit letters is bothersome enough. That said, they are under SAMs, and if that reading material falls outside what is allowed in the SAMs... then they should not get it." (Ex. 25) (emphasis added.) Further, the SAMs origination memo for Abouhalima concludes that, "upon initial review of the brief summaries of the letters, the FBI does not believe operational planning or guidance on the part of the 1993 TRADEBOM inmates was involved." (Ex. 26.)

Abouhalima also asserts that the SAMs were actually imposed on him because of embarrassing coverage in the media relating to the letters (the NBC report). (Ex. 27- BOP grievance response to 2008 SAMs renewal stating that "the [NBC] broadcast highlighted the Department's need to closely monitor your communications...The need for the SAM may have been influenced by the broadcast, but it was not in retaliation for it").

Defendants assert that Abouhalima is in a position to inspire and radicalize others to carry out a terrorist agenda because he is among only a handful of people who have executed and survived a high profile terrorist attack, elevating him to hero status and the top rank of the Sunni extremist hierarchy. (Shannon Decl., ¶¶ 37-39.) This is disputed by Abouhalima, again noting that the documentation supporting the SAMs states that "the FBI does not believe operational or guidance on the part of 93 TRADEBOM inmates was involved." (Ex. 26.) There is additionally no demonstration of Abouhalima "inspiring" or "radicalizing" others. The fact of Abouhalima's conviction and sentence was known since 1994, and the 8 ½ years he spent in high-security, open-population prisons did not radicalize or inspire anyone to commit any acts of terror, and he was treated accordingly by the BOP. Finally, he asserts that the government has presented no undisputed factual evidence that anyone, including "Sunni extremist[s], " regards Abouhalima as a "hero, " and even if this Court were to find this to be a material undisputed fact, it is a factual situation over which he has no influence.

The government has also determined that communications from terrorists of Abouhalima's reputation can reinforce an aspiring terrorist's resolve and assuage doubts about carrying out an attack, even where the communications themselves do not discuss operational planning for a specific attack and might appear superficially benign. (Shannon Decl., ¶¶ 41-43.) Abouhalima disputes this, arguing that the government is not entitled to deference on this factual question which must be established at trial. Further, he asserts that Defendants have presented no undisputed factual evidence in support of this assertion. To the contrary, after the government discovered the correspondence between Abouhalima and the Spanish prisoners, the FBI determined that the communications "should be handled in accordance with established DOJ and BOP policies." (Exs. 28, 29.)

The government has also determined that Abouhalima's ability to connect with the Martyrs and other terrorists demonstrates that he retains the ability to attract the attention of and to motivate other terrorists, and that without SAMs, his connections to the terrorist network may be resurrected. (Shannon Decl., ¶¶ 40, 44.) Abouhalima disputes this, and disclaims any alleged desire to have connections to terrorists. He has testified as to his actual, benign motivations for engaging in the correspondence in question, and argues that he engaged in correspondence and had access to media without SAMs for 12 years without "resurrect[ing]" any "connections to the terrorist network". The FBI's own documentation states that it "does not believe operational or other guidance on the part of the 93 TRADEBOM inmates was involved" in Abouhalima's correspondence. (Ex. 26.)

Abouhalima's SAMs facilitate the government's interest in protecting national security, according to Defendants, because they sever his connections to the jihadist network and deprive other terrorists and would-be terrorists from the affirmation derived from communicating with terrorists of Abouhalima's status. (Shannon Decl., ¶¶ 44, 60.) Abouhalima disputes this, asserting this is a core fact in dispute. He contends that no security interest is facilitated by prohibiting him from calling his brother in Egypt at his work, but being permitted to speak with that brother if present where a call to a permitted number is ...

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