A New York environmental activist stuck in an extreme isolation unit for writing letters and publishing articles — and then re-jailed for writing about being put in that isolation unit in the first place — has had his lawsuit against the Federal Bureau of Prisons dismissed, a development he calls “gross and unjust.”
We’ve written before about Daniel McGowan, a 39-year-old environmental activist from Rockaway Beach, Queens who was once affiliated with the Earth Liberation Front, a group he says he left in the summer of 2001. He spent five and a half years in a federal prison in Terre Haute, Indiana, convicted of arson and conspiracy to commit arson, for trying to burn down two Oregon lumber yards in 2001, actions for which the ELF as a group claimed responsibility.
McGowan was released in December of 2012 and sent to a halfway house, where he was supposed to stay for six months before beginning three years of supervised release. But he was briefly re-imprisoned this April, three days after writing an article for the Huffington Post about his time in a Communications Management Unit, an experimental pod within the prison that drastically cut off his ties to the outside world.
McGowan explained in the Huffington Post piece that he landed in the CMU about a year into his prison bid, despite having a spotless disciplinary record. CMU rules drastically limited his access to phone calls and visits, as well as banning physical contact with his family and friends when they were allowed to see him. When his wife visited, they were separated by a thick pane of Plexiglass and a row of bars, communicating by phone.
In 2010, with help from the Center for Constitutional Rights, McGowan and several other CMU inmates filed suit against the Bureau of Prisons, challenging the constitutionality of CMUs and alleging that inmates were often assigned to them for their political beliefs, a practice which the CCR called “discriminatory and retaliatory.” In McGowan’s case, he and the CCR believed he’d been stuck in the CMU for writing letters and articles, which were still, when last we checked, constitutionally protected First Amendment activities.
As memos released during the suit revealed, he was right. They showed that McGowan was tossed in the CMU in large part for writing articles and letters about animal rights, as well as the need to unite the animal liberation and Earth liberation movements. Les Smith, a chief in the BOP’s Correctional Programs division, wrote that McGowan’s communications needed to be monitored constantly:
Inmate McGowan’s communications warrant heightened controls and review due to the fact that he was an organizer of [Earth Liberation Front]; wrote communiques for ALF/ELF actions; used coded communications during the commission of the offenses; participated in the recruitment of others into the group; espoused his anti-government beliefs verbally and in written communications; trained others to design and construct incendiary devices as well as how to conduct arson without being caught; and demonstrated the ability to plan, organize and carry out his plans without detection.
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.
Three days after the HuffPo piece went live, on April 4, McGowan was picked up from his Brooklyn halfway house and locked up at the Metropolitan Detention Center. After one night, he was re-released to the halfway house, but with a new condition: no publishing articles.
“As far as we know, this is a made-up rule applied only to Daniel,” the CCR wrote in a press release, “in a further attempt to chill his freedom of speech.”
On June 5, McGowan was released from the halfway house, to go home to his wife and begin his supervised release. “I am out of the reach of the Bureau of Prisons,” he says. He’s now working as a receptionist in a law firm. On Tuesday, as Courthouse News first reported, Senior U.S. District Judge Barbara Rothstein dismissed McGowan from the BOP lawsuit, under the logic that his release from prison has made his standing to bring the case moot. Only two inmates remains in the lawsuit, Kifah Jayyousi, who was convicted of aiding Al-Qaeda, and Yassin Aref, convicted of aiding Jaish-e-Mohammed, a Kashmiri terrorist organization. (Aref was recently moved out of the CMU and sent to another federal prison in Pennsylvania.)
The Center for Constitutional Rights said it was “deeply disappointed” by the dismissal of McGowan’s suit. It added that a portion of the suit was dismissed under the Prison Litigation Reform Act, a 1996 federal law that makes it very difficult to prisoners to sue the government for damages unless they’ve been physically injured. The CCR refers to this as a “second-class system of justice.”
“I have to say, I find the dismissal severely disappointing,” McGowan told us via email yesterday. “That my claims can be dismissed on what amounts to a technicality is just a sad example of how badly our system of justice works. The PLRA essentially states
that prisoners cannot seek relief from the courts for emotional or mental injuries, only physical injuries. There is something very gross and unjust about that. After spending 48 months in the CMU, I’m appalled that I will not get my day in court and be able to testify about what it is like to live in those conditions and the severe impact CMU designation has on one’s family and community ties.”