By Britain Eakin, Courthouse News Service

WASHINGTON (CN) - Attorneys urged the D.C. Circuit to revive claims that federal prisons single out Muslim inmates for isolation units where their communications face 24-7 surveillance.

The Center for Constitutional Rights brought a complaint over the practice six years ago on behalf of Yassin Muhiddin Aref and other inmates whom the U.S. Bureau of Prisons placed in two experimental segregation units it established in Terre Haute, Ind., and in Marion, Ill., between 2006 and 2008, without public notice.

Though Muslims represent only 6 percent of the total general U.S. prison population, they make up 60 percent of prisoners housed in segregated CMUs, shorthand for communication-management units, the center's attorney Rachel Meeropol argued in court Tuesday.

Meeropol said inmates stay in CMUs for an average of three to five years, whereas disciplinary administrative segregation typically lasts one to four weeks.

"This experience of segregation in a minority religion unit is a very atypical experience," Meeropol said. "This is not something a prisoner could expect to experience in the normal course of being incarcerated."

Tuesday's appeal to a three-judge panel of the D.C. Circuit came nearly one year to the day that a federal judge dismissed Aref's suit, which challenges the hardships that "haphazard and retaliatory" CMU assignments impose on prisoners.

"My clients are low- and medium-security prisoners with clean disciplinary records who were singled out among hundreds of thousands of federal prisoners for segregation in a Communication Management Unit," Meeropol told the panel.

In addition to keeping inmates in the dark about the reasons for their CMU assignments, the federal prison system also denies inmates a viable avenue by which to seek relief, Meeropol added.

Prisoners in CMUs get eight hours of noncontact visiting time per month, and two 15-minute prescheduled phone calls per week, totals that the Bureau of Prisons doubled in 2010.

A brief Meeropol filed with the D.C. Circuit in October quotes lead plaintiff Aref as likening his deprivation of physical contact with his children during the 47 months he spent in a CMU as a "kind of torture."

Though general-population prisoners get 300 minutes of phone-call time, and up to 49 hours of contact visiting time every month, Justice Department attorney Carleen Zubrzycki said this difference is not significant enough to warrant a protected liberty interest, or additional constitutional protections.

"Inmates in BoP placements do not have a right to privacy in their communications. They do not have a right to not be monitored," Zubrzycki told the appeals court Tuesday, abbreviating Bureau of Prisons.

Judge Sri Srinivasan interrupted when Zubrzycki called CMU monitoring similar to the monitoring in all Bureau of Prison facilities.

"Well there must be something distinctive about a CMU because that's why you have it," Srinivasan said.

Insisting that the difference of degree is "relatively small," Zubrzycki said CMUs greatly hamper the ease by which inmates circumvent communications monitoring.

Since Aref and his remaining co-plaintiffs have been released or transferred out of the CMUs, Zubrzycki also argued that the issue is moot now.

"There is no continuing ongoing injury as a result of those placements," she said.

To this point, meanwhile, Meeropol said that flawed information generated through Bureau of Prison procedures remains in her client's files, stigmatizing them.

Zubrzycki also claimed that the Bureau of Prisons rendered the due-process issue moot last year by implementing more formalized procedures that clarified the murkiness of the CMU assignment process.

Aref's co-plaintiff Kifah Jayyousi was transferred out of a CMU in 2013 because of processes that determined he no longer posed a security risk, Zubrzycki said.

Judge Srinivasan interrupted again when Zubrzycki called CMUs an "extraordinarily far cry" from the harsh and restrictive conditions of administrative segregation.

"Except for duration," Srinivasan said.

Zubrzycki conceded the difference but said CMU prisoners have "significant freedom and flexibility throughout the day given their incarceration." They can interact with other prisoners, and can still communicate with the outside world, she said.

Noting the difference, Meeropol said in an interview that "there's not a single medium-security prison in the country that bans contact across the board." That loss of contact for years on end can "enormously affect prisoners and their families," she said.

One of Srinivasan's two colleagues on the panel, Judge Janice Rogers Brown, told Zubrzycki that the entire CMU looks atypical, highlighting that CMU placement is not dependent on misbehavior as it is with administrative segregation.

But the remark failed to ruffle the government's attorney.

"If anything I think it suggests that the BoP is making individualized, careful determinations here," Zubrzycki said.

Prison officials sent Jayyousi to the CMU at Terre Haute in 2008, a year after a jury convicted him of terror-conspiracy and other charges, but the original complaint notes that their client's conduct "primarily involved financial contributions to charities," and his involvement with extremist groups ceased in 1998.

In 2011, the counterterrorism unit nixed a recommendation to transfer Jayyousi out of the CMU based on the content of a 2008 sermon he delivered at the prison.

Attorney Meepol called on the appellate judges to examine the sermon's content.

To get around agency deference, Meeropol noted that case law does not require blind deference if evidence suggests the security risk was exaggerated, as she said occurred here.

Jayyousi and some of the other prisoners felt relegated to the CMU for being Muslim, Meeropol said, adding that the sermon referenced Nelson Mandela and John McCain as examples of people who were captured and tortured, but held on to their faith.

The prison administrator, however, described the sermon as inciting violence and denigrating other religions, Meeropol said.

Srinivasan asked if the court should "defer to that, period, or do we look behind it a little bit to find out whether there's some reason supporting the conclusion that there's a security risk?"

Brown asked about the difference between a dispute about facts "and a dispute about professional judgment."

“What standard do we apply?" she asked. "It can't just be that we read it differently."

Meeropol compelled the judges to scrutinize how BoP makes its security designations, noting that the atypical designation in the law exists to prevent discriminatory treatment.

Avon Twitty, a Muslim convert who goes by Imam Ali, said in an interview that the 39 months he spent in the CMU continues to haunt him.

Twitty was convicted of armed murder - not terrorism - and spent more than 27 years in prison before his release in 2011.

Twitty said the Bureau of Prisons designated him as an international terrorist associate/terrorist, a claim that Meeropol said in an email is contained in Bureau of Prison documents. That designation remains in his file, and Twitty said he believes it has prevented him from finding work since his release.

"I've never left the country," he said. "I've never made an international phone call. The only foreigners that I ever met in my life are the ones in the Bureau of Prisons."

A Bureau of Prisons document that notified Tweety of his transfer accused him of "involvement in recruitment and radicalization efforts of other inmate (sic) through extremist, violence oriented indoctrination methods to intimidate or coerce others," according to April 2014 motion for summary judgment.

But Twitty believes his designation was done in retaliation for contesting the Bureau of Prisons' refusal to shave off earned time from his sentence, an assertion that Meeropol corroborated in her email.

Twitty called the hearing a success.

"I basically think that we won," he said. "At least if we didn't we had a very fair hearing," he said.

Contending that his attorneys only scratched the surface of life in a CMU, Tweety described conditions as "raggedy" and "dirty."

Faced with showers that gave inmates skin infections, and toilets that overflowed with waste, Tweety said his faith in Islam kept him going.

"I had Allah on my side," he said. "I was able to maintain some type of sanity through my spirituality."

Meeropol said she is hopeful for a reversal from the appellate panel, which Senior Judge Harry Edwards rounded out.

"The panel was really engaged with the issues and they asked fair questions," Meeropol said. "I think they are really giving it the attention it deserves. Now we wait."

A spokesman for the Department of Justice declined a request for comment on the hearing from the Bureau of Prisons.

To Learn More:

U.S. Supreme Court Finds No Security Threat in a Beard, Allows Muslim Inmate to Grow One at Will (by Noel Brinkerhoff and Steve Straehley, AllGov)

Who’s Inside Midwest Mystery Prisons? (by Noel Brinkerhoff, AllGov)