Guest Post: A Framework for Incarcerating Terrorists

Melanie Getreuer is a PhD Candidate in Political Science at the University of Wisconsin-Madison, where she is writing a dissertation about the global use of criminal justice systems to counter terrorism. She lives and works in New York City.

In his State of the Union address, President Obama said the United States would continue to take “direct action against those terrorists who pose the gravest threat to Americans” through a range of capabilities, including targeting, detention, and prosecution. Amidst Defense Secretary Leon Panetta’s departure and confirmation hearings for John Brennan and Senator Chuck Hagel, the debate about these methods has understandably focused on the use of drones and other counterterrorism efforts overseas. But, here at home, the use of our criminal justice system to counter terrorism also warrants attention.

Indeed, on the same day that Secretary Panetta delivered his farewell speech, Mohammad Rezwanul Ahsan Nafis pled guilty to attempting to detonate what he believed was a thousand pound bomb at the New York Federal Reserve Bank. Nafis will likely spend the rest of his life in prison, joining some four hundred other federal prisoners serving time for terrorism-related offenses. The Bureau of Prisons (BOP) incarcerates nearly two dozen al-Qaeda terrorists, and New York City is holding an additional fifteen in county detention centers awaiting trial. Although small relative to the overall U.S. prison population, examining how the United States has handled these inmates reveals striking differences not only between federal and state level policies, but between the American approach and other countries with a comparable number of terrorist inmates like Great Britain, Israel, and Russia. If the Obama administration is serious about implementing a “durable legal and policy framework to guide our counterterrorism efforts,” it should include the development of a coherent set of national-level policies to guide counterterrorism practices across the whole of the U.S. corrections system.

That the numbers of individuals incarcerated for terrorism related offenses has steadily increased since 9/11 is well documented. From a low of just 50 convicted terrorists in 2000, the BOP reportedly held 362 people convicted in terrorism related cases in 2010, with an additional 38 convicted in the last three years. Including those who have been convicted only of providing material support to terrorists but have not committed actual acts of violence, that number rises to 700. Of the nearly 500 total terrorism prosecutions since 2001, moreover, two-thirds have ended in guilty pleas, and over half are serving time of a decade or more. Considering that the United States has both the highest incarceration rate (700 out of every 100,000) and the largest prison population in the world at 7 million, these numbers seem like a drop in the bucket.

However, evidence that some of these inmates have propagated terrorist activity from their prison cells and successfully radicalized others suggests that they might be a greater security threat than their numbers indicate. Prominent examples include El Sayyid Nosair who, while incarcerated at Attica for the assassination of Rabbi Meir Keohane, conspired with individuals outside the prison to bomb the World Trade Center in 1993; or the “Blind Sheikh,” Omar Abdel Rahman, who, when he was first incarcerated for the New York City Landmarks Plot, issued a fatwa calling on al-Qaeda to attack the United States.

Perhaps the greatest concern, however, stems from people like Richard Reid, Jose Padilla, the “Newburgh Four,” and top al-Qaeda operative, al-Zawahiri, all of whom converted or became more committed to a radical form of Islam while incarcerated for low-level offenses and then became extensively involved with militants after their release. The increasing danger posed by what LAPD counterterrorism commanding officer Michael P. Downing called “convergent threats”—when gangs and organized crime connect with terrorism—coupled with poor post-release programs may only compound these worries. A 2010 Senate Foreign Relations Committee Report even suggested that up to three dozen Americans who converted to Islam in prison have traveled to Yemen to train with al-Qaeda.

Federal, state, and county prison systems in the United States have made significant strides in responding to potential terrorist activity inside their facilities, focusing on surveillance of the information flowing into and out of the prisons, and carefully vetting clerics, volunteers and others involved in providing for inmates’ spiritual needs. Since 2006, the BOP has moved many of those convicted in federal terrorism cases to several special maximum security units (CMU’s) in Colorado, Indiana, and Illinois that severely restrict visits, phone calls, and email, and bar these inmates from significant contact with the general prison population. What remains uncertain about these policies, however, is their uniformity. That is, there are differences in the ways in which these prisons manage inmates, with many county detention centers providing terrorism suspects awaiting trial less restrictive access to mail, internet, and books. The same holds true at the global level, with the approach undertaken in countries with a comparable number of terrorist inmates varying widely. In the United Kingdom, for example, convicted terrorists are fully integrated into general prison populations and granted nearly unrestricted access to visitors, mail, and the internet. Russia, by contrast, just announced that it will be establishing a maximum security prison for terrorists in southern Krasnador, with the 152 potential inmates almost entirely segregated from the outside world.

In short, little systematic work documenting and evaluating the effectiveness of counterterrorism initiatives across the whole of the U.S. corrections system or globally has been done. This not only prevents consistency in decision-making, but also thoughtful analysis about the merits of different policy choices, which can have consequences for our ability to counter terrorism inside prisons without undermining the constitutional and other rights of prisoners. Indeed, the CMU’s have been the subject of significant controversy and litigation, stemming from concerns over issues ranging from rights to group prayer to the unintended security consequences of creating Muslim dominated units.

In the summer of 2011 the House Homeland Security Committee convened a hearing on the threat of radicalization in U.S. prisons. A number of sound recommendations emerged from panelists’ testimony, which would go a long way to developing a coherent policy framework for corrections and other law enforcement officials. Given the increased usage of our criminal justice system to counter terrorism—five high-profile terrorism suspects extradited from England in October will stand trial in New York this coming summer—it is essential that these recommendations be followed up on and implemented.