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Convicted terrorist’s speech challenge will proceed to court

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  1. Prior Restraint

A convicted terrorist claiming that the limits on communication he faces while serving a life sentence at a federal penitentiary violate his First Amendment rights can proceed with his lawsuit against the government, the District Court in Colorado has ruled.

The prisoner, Khalfan Khamis Mohammed, was convicted in 2001 for his role in the 1998 bombing of the American embassy in Tanzania, and is subject to Special Administrative Measures, or SAMs, that limit his speech. He is asking that the court deem certain restrictions unconstitutional and lift them.

The U.S. Attorney had moved to have the case dismissed, but a judge ruled last week that a court could hear it because Mohammed brought sufficient evidence to show that “there is no rational connection” between the SAMs and the prison’s interest in maintaining order among inmates and protecting members of the public.

“The government’s general justifications for SAMs – involvement in terrorist activities and dangerous communication by others during incarceration – do not address Mr. Mohammed’s conduct or his particular risks,” Colorado District Court Judge Marcia S. Krieger wrote.

About 43 federal inmates are subject to SAMs, which the attorney general uses when “reasonably necessary” to protect people from the risk of death or severe injury, according to the opinion. The government imposed these measures on Mohammed because it found that he has a “longstanding commitment to jihad, which strongly suggests that [he] would advocate violence in communications with the outside world, if permitted to do so,” the opinion said.

Under the regulations, Mohammed, who is at a maximum security federal penitentiary in Florence, Colo., commonly referred to as Supermax, can only speak and write to his immediate family and four other family members. The government can monitor these correspondences.

Mohammed’s mail can be held for 14 days if it is in English, or 60 days if it contains another language or if the federal government suspects that code has been used. The letters he writes are restricted to three pieces of paper. Mohammed’s use of print and other media is limited, and he cannot attend prayer group with inmates or communicate with them except in specified circumstances.

The government claims that the SAMs are lawful because they are “reasonably related to legitimate penological interests” of preventing terrorist acts and promoting prison safety. It cites Mohammed’s conviction in the embassy bombing, statements he made regarding that case, and his role in a 2000 prison altercation. In that incident, Mohammed was found to have assisted a cell mate who attacked a prison officer, and to have escaped to a common area of the facility.

Krieger’s opinion says that the government needed to show “not whether SAMs, generally, are rationally related to a penological objective,” but, instead, whether “there is a rational connection between the particular SAMs applied to Mr. Mohammed and a penological objective.”

According to the opinion, the government did not meet this threshold. None of Mohammed’s correspondence has included content intended to inspire terrorist attacks; there is no showing that the people he wants to communicate with pose a threat to the security of the prison or the general public; and a prison official had recommended easing the restrictions, the opinion says.

Mohammed, who is representing himself in this First Amendment case, also claims that the regulations have gotten stricter in recent years, even though the instances that the attorney general cites happened about a decade ago.

David A. Ruhnke, a lawyer who represented Mohammed in the embassy bombing criminal case, told The New York Times that the government offered “very little justifications” for the regulations it imposed.

“I see the significance of the ruling as saying that the government, without more, can’t simply lock somebody down for life, restricting their ability to interact with other beings, based on conduct growing older and staler,” Ruhnke told the Times.

A prisoner serving a life sentence in Supermax for assisting in an embassy attack in Nairobi, Kenya, also challenged SAMs on First Amendment grounds after he had some correspondence rights taken away. Another U.S. District judge in Colorado granted the government’s motion to dismiss in that case. The prisoner, Mohamed Al-’Owhali, has appealed that ruling to the U.S. Court of Appeals in Denver (10th Cir.).

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