Thomas Silverstein Civil Case Documents and great Amicus Curiae Brief to the Court not enough to convince Court

This is from Thomas Silverstein’s website, which can also be found by going to Thomassilverstein.com:
 
A message from Tommy:
To: All my friends & supporters & of course, loved ones & haters. 
 
A long time no hear I know, I assure U, I’ve missed U all & your constant show of love & support which had helped me through many dark & hopeless storms! But sadly for legal reasons I had to take a reluctant hiatus, which is still N effect )-: However, 4 now, I wanna truly thank all of U who checks in even tho its been uneventful, 4 your due diligence & unshakable loyalty. 
 
As U may or may not of heard, I lost my battle 2 B released from isolation )-: But the War continues as we ready another appeal. Meanwhile, we’ll post my attorneys written transcript of her Oral argument B4 the 10th Circuit appellant court 4 those interested N the intimate details. We were only allowed 15 minutes 2 plead R case )-: But sadly, when we post their decision ,u’ll C they already had made up their minds, so our 15 minutes was just 4 show, so they can claim we had our case heard. 
 
Hopefully in the near future, we’ll B able 2 let you hear the hearing audibly, which is a riveting volley of pleas between David vs Goliath B4 a panel of 3 God – awful Judicial rulers. Only this battle, David was a petite Jewish woman with the heart of a Lioness & courage of a Blind Gun-fighter, who slain the Govt’s giant N vain when her plea fell upon Deaf ears & heartless souls )-: I realize many of U have already heared of the decision & even read it, so this is a bit ass backward, however, reading / hearing R defence may help 2 understand Y I say R plea fell upon deaf ears & Y they already had their minds made up & just gave their stamp of approval 2 what ever the B.O.P. does regardless of how it effects their charges ! 
 
We shall commence R Chat-room Guest-book when possible, so please stay tuned & thanks once again 4 your love & endless support! It truly means the world 2 me ! Your Pal….Tom Silverstein – Please read the Transcript here.
9th August 2014.
Dear Friends,
Sadly I bring you all more bad news from my personal hell-hole, last night I received notice from my Attorney that latest Appeal we filed was denied.
After the 10th Circuit appellate court denied us any action, we were left with 3 choices, actually 4, 1) Do nothing, 2) ask that they reconsider it  but judges rarely, if ever, admit they made a mistake, so that was out of the question: 3) File to the Supreme Court, but its bad enough they can use my case in the 10th Circuit, to keep prisoners isolated indefinitely so I don’t want to risk setting a precedence, since once the Supreme Beings rule on a case, that’s law for the country.
So we choose # 4 an En Banc hearing, which is rarely granted. Asking all the Judges in the 10th Circuit (12 I think) to hear our case instead of the 3 who did. We believe “Particularity” points of law or facts were overlooked or misapprehended,  which I suspect you’ll agree after reading my Attorneys’ AWSOME motion (that hopefully with accompany this kite, so those of you interested can read it for yourselves)
My Attorney and I need to re-group, so not sure what we’ll do next, but I’ll keep you posted as always.
Your pal, Tommy
—-
Below we post the links to the case and the Amicus Curiae Brief:

Opening Brief of the Appeal in Case No 12-1450 (D.C. No. 1:07-cv-02471) of Feb 20, 2013

Oral Argument Silverstein v. Bureau of Prisons 12-1450, Sept. 24, 2013

Order and Judgment US Court of Appeal Tenth Circuit, May 22, 2014

Appelant’s Petition for Rehearing En Banc, July 7, 2014

Denial of Petition for Rehearing En Banc (with no explanation), July 18, 2014

Amicus Curiae Brief to the Court by Psychologist Organizations and Psychologists on behalf of Thomas Silverstein (Feb. 27, 2013):

This is a letter to the court on behalf of Appelant Thomas Silverstein, containing much literature and references to the torture of solitary confinement, and is endorsed/written by:

Amici include:
(1) psychiatrists and psychologists who have dedicated their careers to studying and documenting the mental health of inmates across various prison facilities, including supermax prisons and segregation units; and (2) mental health professional organizations whose efforts are directed toward improving the mental health of inmates, including those in solitary confinement.

The Association of Black Psychologists is focused on influencing and affecting social change and developing programs whereby Black psychologists can assist in solving problems of Black communities and other ethnic groups.

Coalition for an Ethical Psychology is a group of psychologists that actively opposes the involvement of health professionals in state-supported abuse with a national security rationale, including solitary confinement.

Mental Health America is a national advocacy organization dedicated to promoting mental health and achieving victory over mental illnesses and addictions through advocacy, education, research, and service.

The Mental Health Project (MHP) of the Urban Justice Center is dedicated to enforcing the rights of low-income New Yorkers with mental illness. MHP has long been involved in efforts to end solitary confinement in prisons.

The National Alliance on Mental Illness (NAMI) is the nation’s largest grassroots organization dedicated to ameliorating the lives of Americans affected by serious mental illnesses. NAMI has a long history of advocacy on criminal justice issues and is particularly concerned about the excessive use of prolonged solitary confinement on inmates with serious mental illnesses and the long-term negative effects of these practices on such individuals.

Physicians for Human Rights is an independent non-profit organization that uses medicine and science to stop mass atrocities and severe human rights violations against individuals.

Psychologists for Social Responsibility is an independent non-profit organization of psychologists and students that applies psychological knowledge to promote peace and social justice, including efforts to end solitary confinement.

Stanley L. Brodsky, Ph.D., is a Professor of Psychology at the University of Alabama. He has worked as Chief of Psychology at the United States Disciplinary Barracks in Fort Leavenworth, Kansas, inspected solitary confinement facilities in 8 states as part of his clinical-forensic work, and conducts research and clinical assessment interviews for prisoners in a variety of isolation conditions.

Carl Clements, Ph.D., is a Professor of Psychology at the University of Alabama. He has written extensively on correctional psychology for 40 years and has inspected dozens of prisons in the United States regarding the effects of overcrowding, offender classification procedures, and the mental health needs of prisoners.

Keith R. Curry, Ph.D., is a clinical psychologist who has over 20 years of experience evaluating conditions of confinement and its effects on mentally ill inmates.

Carl Fulwiler, M.D., Ph.D., is an Associate Professor of Psychiatry at the University of Massachusetts Medical School. He has extensive experience with the mental health effects of isolated confinement, having interviewed over 200 inmates in over a dozen Segregated Housing Units.

Rafael Art. Javier, Ph.D., is the Director of the Post-Graduate Professional Program and Professor of Psychology at St. John’s University. He has presented at conferences and published extensively on ethnical and cultural issues in psychoanalytic theories and practice, including on issues of violence and its impact on general cognitive and emotional functioning.

Allen Keller, M.D., is an Associate Professor of Medicine at New York University School of Medicine and the Director of the Bellevue/NYU Program for Survivors ofTorture. Dr. Keller’s scholarly work and research has included examining the impact of  prison conditions and access to health care on prisoner health.

Terry A. Kupers, M.D., M.S.P., is Institute Professor at The Wright Institute. He provides expert testimony as well as consultation and staff training regarding the psychological effects of prison conditions, including isolated confinement in supermaximum security units, the quality of correctional mental health care, and the
effects of sexual abuse in correctional settings. Dr. Kupers has published extensively on prisoners’ mental health.

David Lovell, Ph.D., M.S.W., is Research Associate Professor Emeritus at the University of Washington. Professor Lovell and his colleagues conducted systematic interviews with inmates and staff in long-term solitary confinement units, along with reviews of prison records and clinical status.

Mona Lynch, Ph.D., is a Professor and Vice-Chair of the Department of Criminology, Law & Society at the University of California, Irvine. Trained as a social psychologist, her research focuses on criminal sentencing and punishment.

Katherine Porterfield, Ph.D., is a Clinical Instructor of Psychiatry at New York University School of Medicine and a Staff Psychologist at Bellevue/NYU Program for Survivors of Torture. Dr. Porterfield has worked as a clinical evaluator on several cases of young people held in detention at Guantanamo Bay and frequently consults with attorneys handling cases involving torture, trauma, and maltreatment.

Keramet Reiter, Ph.D., J.D., M.A., is an Assistant Professor at the University of California, Irvine in the Department of Criminology, Law & Society and at the School of Law. She is an expert in corrections, punishment, and criminal law, especially the history and uses of solitary confinement.

Peter Scharff Smith, Ph.D., is a Senior Research Fellow at the Danish Institute for Human Rights in Copenhagen. During the past 10 years, his research has focused on prisons and human rights, specifically the use and effects of solitary confinement in prisons internationally and in Denmark.

Hans Toch, Ph.D., is Distinguished Professor Emeritus of Criminal Justice at the University at Albany, State University of New York. He has served as a consultant to a number of correctional systems in the United States and abroad, and has received many awards for distinguished contributions to criminology and penology.

Patricia A. Zapf, Ph.D., is a Professor in the Department of Psychology at John Jay College of Criminal Justice, The City University of New York. She has conducted over 2,500 forensic evaluations in both the United States and Canada and has served as an expert witness in a number of cases, including the prosecution of José Padilla.

Federal Bureau of Prisons to Undergo Review of Solitary Confinement Practices

This is from a very reliable source for solitary confinement news, SolitaryWatch:

Feb. 5th 2013
By Jean Casella and James Ridgeway

Cell at ADX federal supermax

On Monday, the office of Illinois Senator Dick Durbin put out the following press release, announcing that the federal Bureau of Prisons (BOP) had agreed to submit to a review of its solitary confinement practices.

In 2010, a spokesperson for the BOP said that federal prisons held approximately 11,150 prisoners in some form of segregated “special housing.” This figure includes the 400 men held in ultra-isolation at the U.S. Penitentiary Administrative Maximum (ADX) in Florence, Colorado, which is currently the target of federal lawsuits claiming conditions there lead to mental illness and suicide, and violate the Constitution.

The planned review follows on the first-ever Congressional hearing on solitary confinement, held last June by a Senate Judiciary Subcommittee chaired by Durbin. It is described as a “comprehensive and independent assessment,” though it will be carried out by the National Institute of Corrections, which is an agency of the BOP.

Solitary Watch will report further on this story in the coming days, including the BOP’s assertion that it has already “reduced its segregated population by nearly 25 percent.”

DURBIN STATEMENT ON FEDERAL BUREAU OF PRISONS ASSESSMENT OF ITS SOLITARY CONFINEMENT PRACTICES

[WASHINGTON, D.C.] – Assistant Majority Leader Dick Durbin (D-IL) released the following statement today announcing that the Federal Bureau of Prisons has agreed to a comprehensive and independent assessment of its use of solitary confinement in the nation’s federal prisons. This first-ever review of federal segregation policies comes after Durbin chaired a hearing last year on the human rights, fiscal and public safety consequences of solitary confinement. Last week, Durbin and Bureau of Prisons Director Charles Samuels discussed the assessment, which will be conducted through the National Institute of Corrections.

“The announcement by the Bureau of Prisons that it will conduct its first-ever review of its use of solitary confinement is an important development,” Durbin said. “The United States holds more prisoners in solitary confinement than any other democratic nation in the world and the dramatic expansion of solitary confinement is a human rights issue we can’t ignore. I am confident the Bureau of Prisons will permit a thorough and independent review and look forward to seeing the results when they are made public. We can no longer slam the cell door and turn our backs on the impact our policies have on the mental state of the incarcerated and ultimately on the safety of our nation.”

In his hearing last year, Durbin emphasized the importance of reforming the way we treat the incarcerated and the use of solitary confinement in prisons and detention centers around the country. Following that hearing, Durbin has twice met with Bureau of Prisons Director Samuels to push for additional reforms and encourage a sufficiently robust assessment of the Bureau’s segregation practices.

Since Durbin’s hearing, the Federal Bureau of Prisons has reportedly reduced its segregated population by nearly 25 percent. In addition, it has closed two of its Special Management Units, a form of segregated housing, due to the reduction in the segregated population.

The National Institute of Corrections, through which the assessment will be conducted, assisted states like Mississippi and Colorado in reforming their solitary practices. After assessing its practices, Mississippi reduced its segregated population by more than 75 percent, which resulted in a 50 percent reduction in prison violence.

During the last several decades, the United States has witnessed an explosion in the use of solitary confinement for federal, state, and local prisoners and detainees. Today, more than 2.3 million people are imprisoned in the United States. This is – by far – the highest per capita rate of incarceration in the world.

Solitary confinement – also called supermax housing, segregation and isolation – is designed to separate inmates from each other and isolate them for a variety of reasons. Originally used to segregate the most violent prisoners in the nation’s supermax prisons, the practice is being used more frequently, including for the supposed protection of vulnerable groups like immigrants, children and LGBT inmates. According to the Bureau of Justice Statistics, the United States holds over 80,000 people in some kind of restricted housing. In Illinois, 56% of inmates have spent some time in segregated housing.

Prisoners in isolation are often confined to small cells without windows, with little to no access to the outside world or adequate programs and treatment. Inmates are confined to these cells for up to 23 hours a day. Such extreme isolation can have serious psychological effects on inmates and can lead to mental illness, self-mutilation and suicide. According to several state and national studies, at least half of all prison suicides occur in solitary confinement.

In addition to the impact solitary confinement has on inmates, there are also public safety and fiscal concerns with the practice. The bipartisan Commission on Safety and Abuse in America’s Prisons found that the use of solitary confinement often increased acts of violence in prions. Further, it is extremely costly to house a prisoner in solitary confinement. In Tamms, Illinois’ only supermax prison, it cost more than $60,000 a year to house a prisoner in solitary confinement while it was operational, compared to an average of $22,000 for inmates in other prisons.

Video from Durbin’s June hearing on solitary confinement can be found at www.judiciary.senate.gov.

Stand in Solidarity with Marion-CMU Prison Hunger Strikers

As found on Facebook:

Stand in Solidarity with Marion-CMU Prison Hunger Strikers
by JusticeFor Shifa on Saturday, June 2, 2012 at 2:27am ·

SOLIDARITY WITH MARION-CMU PRISON HUNGER STRIKERS

In April 2012, Shifa and a group of Muslim American political prisoners in the Communication Management Unit (CMU) at Marion, IL were on hunger strike. Since September 2011 the new Warden and her staff have been horribly abusing and violating Muslim inmates increasingly– harassing during individual and congregational prayer times, revoking religiously prescribed meal, banning spiritual educational programs, torturing with lights turned on in the cells 24/7, and terminating communication with the outside world– and denying their constitutionally granted human rights. Seeing the atrocious, inhumane mistreatment of Muslim prisoners, the non-Muslim inmates also went on hunger strike in solidarity. The Warden tried to silence Muslim prisoners by punishing them in solitary confinement and barring their communication.

Although Shifa has been removed from Marion-CMU to Terre Haute, Indiana, Justice for Shifa Support Committee stands in solidarity with the Muslim political prisoners who have been on hunger strike in the Communication Management Unit (CMU) at Marion, IL. Faith-based segregated imprisonment and isolation at the CMU-Marion egregiously targets, discriminates, silences and abuses a minority religious group collectively. At its core it also represses a group for practicing their faith and demanding their constitutionally granted rights to religious freedom.

We see clear lines connecting the CMU-Marion struggle to the California hunger striker’s struggle– demanding their constitutional and human rights– and preceding decades of prisoner-led demands to their rights throughout the prison system.

The demands of Muslim prisoners include: religiously prescribed meal, individual and congregational prayers, religious and spiritual classes and educational programs, and contacts with family and friends.

The CMU-Marion political prisoners’ demands resonate strongly with what Justice for Shifa Support Committee believes are part of our human rights to freedom of religion and granting these rights to prisoners is a way to make our communities free of religious bigotry and racial oppression.

We believe the US Government established these two ‘secret’ units, CMUs in Illinois and Indiana, inside the Federal Prison System to harass and prevent Muslim prisoners from practicing their faith. We believe the US is engaged in violent ‘missionizing projects’ using the CMUs and the prison system to coercively assimilate Muslims to abandon their faith and spiritual life– by targeting and banning their basic spiritual and religious practices– in violation of the US Constitution and the Universal Decleration of Human Rights.

We encourage people everywhere to stand in solidarity with the CMU-Marion political prisoner hunger strikers and forge connections across the prison walls meant to disappear so many of our loved ones, friends and neighbors.

Justice for Shifa Support Committee demands an investigation into the incidences at CMU-Marion, removal of the abusive Warden, and a stop to all missionizing tactics of the government under the guise of fighting the War on Terror.
…..

Stand in Solidarity with CMU-Marion Political Prisoners and Send the Following Letter to the Warden and the Following Officials.

Date

Wendy J. Roel, Warden
4500 Prison Rd
Marion, IL 62959

Dear Warden Roel,

I am writing to express my deep concern over the pattern of harassment and mistreatment of Muslim inmates while in your custody in the Communication Management Unit (CMU) at USP-Marion.

It appears that your administration has recently placed many Muslims in solitary confinement without explanation. In addition, their right to freely practice the Muslim faith has been severely impaired on multiple occasions, forcing them to go on a hunger strike. Numerous CMU inmates from your facility have been complaining about illegal activities that your administration and staff are engaging in to deny Muslim religious and spiritual services under the Religious Freedom Restoration Act (RFRA), the Religious Land Use and Institutionalized Persons Act (RLUIPA) and BOP regulations as well as the First Amendment.

According to reports, these abuses have worsened since your administration began in September 2011. The reports allege either you personally or your staff are engaging in the following pattern of misconduct and illegal behavior:

1) Walking in on Muslims in the Chapel during Friday religious services and interrupting service while the Muslim preacher delivers the sermon.

2) Cancelling several religious and spiritual classes that were approved by the Bureau of Prison staff and taught for several months before your arrival.

3) Refusing to provide religiously prescribed Muslim meals, Halal meals and food items which were approved by the Chaplain and Trust Fund Supervisor at the BOP.

4) Barring Muslim inmates from observing religious practices and holidays

5) Causing health problems by keeping lights on in the cells 24/7

6) Harassing Muslim inmates during their individual and congregational prayers

7) Denying Muslims morning prayer

8) Banning congregational Muslim prayer

9) Stopping all educational and rehabilitative programs for Muslims

10) Prohibiting communication with the outside world

The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) protects the religious rights of federal inmates. It appears that your facility has been involved in serious discrimination against Muslim inmates. I request that the following actions be taken immediately:

Provide information on protocol and procedures regarding maintenance of prisoner safety, adherence to prisoner requests regarding communication with family members;

Provide information about measures that have been taken to ensure CMU Muslim inmates are able to observe and practice their faith freely;

Ensure that Muslim inmates constitutionally protected right to freely practice their religion is not being violated while they are in your facility;

Provide all Muslim inmates with a formal written apology

Ensure Muslim inmates will not be retaliated against as a result of this complaint;

Compensate all Muslim inmates for the emotional distress they may have suffered as a result of the extreme illegal discrimination;

Provide information about the type of cultural and religious sensitivity training is conducted for corrections personnel;

I look forward to a positive and swift resolution to this matter. Issues of such severe violations of civil and religious rights are of grave concern to me as an American citizen. I will continue to monitor this situation very closely and take any appropriate action that it deems necessary, including seeking further public attention for this case.

I appreciate you taking prompt action to remedy these serious issues inside CMU-Marion.

Sincerely, [your name]

Cc:

Thomas E. Perez

Assistant Attorney General
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.

Office of the Assistant Attorney General
Washington, DC 20530

Michael E. Horowitz
Inspector General
US Department of Justice
950 Pennsylvania Ave., NW
Washington, DC 20530

Director Charles E. Samuels, Jr.
U.S. Department of Justice
Federal Bureau of Prisons
320 First Street, NW
Washington, DC 20534

Patrick Leahy
United States Senate
Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510

Manfred Nowak
Office of the United Nations High Commissioner for Human Rights (OHCHR)
Palais Wilson
52 Rue Des Paquis
CH – 201 Geneva, Switzerland

Congressman John Conyers
United States House of Representative
2426 Rayburn H.O.B
Washington, DC 20515

Attorney Alan Mills
Uptown People’s Law Center
4413 N. Sheridan
Chicago, IL 60640

Thomas Silverstein: Judge rules conditions at supermax not "extreme"

The following story from Denver Westworld shows that the judge in Tom Silverstein’s case is not informed about what solitary confinement can do to a human being. Maybe he does not have to be informed, but to us as ordinary persons it is very strange to see that a human being, who has been in extreme isolation since 28 years, is not allowed to live with lesser punitive restrictions. Because keeping a person locked up in a dungeon for years and then in a supermax where he is moved repeatedly in order to not be able to talk to others IS intentionally cruel and permanently punitive. The added drawing by Tom shows his cell that was specially built to isolate him to the utmost form all others, except for a few guards. So the question rises: what kind of “good behavior” can a prisoner in isolation show to make it out to general population again? Tom Silverstein went without a write up for years on end (since 1988). This alone makes it retaliation and torture, if he is not allowed to better himself!

For all who want to read about Tom’s life inside and others at Leavenworth Federal prison, please read the book The Hot House, by Pete Earley, a journalist who was allowed to go inside for a considerable amount of time and write a book about his findings.

We hope that an appeal is possible and that judges will see that isolating human beings from each other for such extreme amounts of time is only punitive and retaliatory and does nothing to correct someone. It is extreme revenge.

One more note: Tom is not allowed any visitors who have never met him since his incarceration, so that leaves him with very few visitors… Also, it is known to us that mail to Tom does disappear. So maybe these judges should check these important issues too.

From: Denver Westworld Blogs
By Alan Prendergast Wed., Oct. 5 2011

Federal judges in Denver are of two minds about the kind of punishment doled out at the supermax penitentiary in Florence. While one is allowing a Tanzanian terrorist’s complaint about the prison’s restrictions on his mail and visitors to proceed to trial, another has thrown out Thomas Silverstein’s lawsuit alleging cruel and unusual punishment as a result of more than a quarter-century of solitary confinement.

Conditions at the U.S. Penitentiary Administrative Maximum, or ADX, aren’t “atypically extreme,” Judge Philip Brimmer ruled.

Silverstein isn’t subject to the “special administrative measures” reserved for convicted terrorists at ADX, which severely limit their ability to communicate with any outsider, even family or legal counsel. But his journey through the federal prison system has been anything but typical.

A former Aryan Brotherhood leader, “Terrible Tommy” was convicted of four murders while in prison; one was later overturned. He’s now serving three consecutiive life sentences plus 45 years. The last killing, the 1983 slaying of a federal guard in the most secure unit of what was then the highest-security federal pen in the entire system, put him on a “no human contact” status that lasted for decades. For close to seventeen years he was housed in a specially designed, Hannibal-Lecter-like cell in the basement of Leavenworth where the lights were on 24 hours a day. In 2005 he was moved to a highly isolated range at ADX, as first reported in my feature “The Caged Life” (which also appears, with a coda, in The Best American Crime Reporting 2008).

Since Silverstein first filed his lawsuit in 2007, with assistance from student lawyers at the University of Denver, he’s been moved from his tomb in Range 13 to D Unit, which is considered “general population” at ADX. Inmates are still in solitary confinement and have meals in their cell, but they also have access to indoor and outdoor recreation and can shout to each other. That lessening in the general degree of Silverstein’s isolation seems to have been one factor in Brimmer’s decision to dismiss the former bank robber’s claims of enduring extreme deprivation and lack of any social contact.

U.S. Bureau of Prisons officials maintain that Silverstein’s placement in isolation is necessary because of his own extreme behavior — “plaintiff’s disciplinary record, in addition to the aforementioned murders, shows assaults of three staff members, a threat to a staff member, an attempt to escape by posing as a United States Marshal, and the discovery of weapons, handcuff keys, and lock picks in plaintiff’s rectum,” Brimmer notes.

But Silverstein hasn’t been cited for a disciplinary infraction since 1988, and even the BOP’s psychologists have rated the 59-year-old prisoner as having a “low” risk of violence for years.

Read the rest here

Greenwald: Jose Padilla and how American justice functions

By: Glenn Greenwald, in Salon.com
Tuesday, Sep 20, 2011

The story of Jose Padilla, continuing through the events of yesterday, expresses so much of the true nature of the War on Terror and especially America’s justice system. In 2002, the American citizen was arrested at Chicago’s O’Hare Airport, publicly labeled by John Ashcroft as The Dirty Bomber, and then imprisoned for the next three years on U.S. soil as an “enemy combatant” without charges of any kind, and denied all contact with the outside world, including even a lawyer. During his lawless incarceration, he was kept not just in extreme solitary confinement but extreme sensory deprivation as well, and was abused and tortured to the point of severe and probably permanent mental incapacity (Bush lawyers told a court that they were unable to produce videos of Padilla’s interrogations because those videos were mysteriously and tragically “lost”).

Needless to say, none of the government officials responsible for this abuse of a U.S. citizen on American soil has been held accountable in any way. That’s because President Obama decreed that Bush officials shall not be criminally investigated for War on Terror crimes, while his Justice Department vigorously defended John Yoo, Donald Rumsfeld and other responsible functionaries in civil suits brought by Padilla seeking damages for what was done to him.

As usual, the Obama DOJ cited national security imperatives and sweeping theories of presidential power to demand that Executive Branch officials be fully shielded from judicial scrutiny (i.e., shielded from the rule of law) for their illegal acts (the Obama DOJ: “Here, where Padilla’s damage claims directly relate, inter alia, to the President’s war powers, including whether and when a person captured in this country during an armed conflict can be held in military detention under the laws of war, it would be particularly inappropriate for this Court to unnecessarily reach the merits of the constitutional claims” (emphasis added)).

With one rare exception, federal courts, as usual, meekly complied. Thus, a full-scale shield of immunity has been constructed around the high-level government officials who put Padilla in a hermetically sealed cage with no charges and then abused and tortured him for years.

The treatment Padilla has received in the justice system is, needless to say, the polar opposite of that enjoyed by these political elites. Literally days before it was required to justify to the U.S. Supreme Court how it could imprison an American citizen for years without charges or access to a lawyer, the Bush administration suddenly indicted Padilla — on charges unrelated to, and far less serious than, the accusation that he was A Dirty Bomber — and then successfully convinced the Supreme Court to refuse to decide the legality of Padilla’s imprisonment on the grounds of “mootness.” (he’s no longer being held without charges so there’s nothing to decide).

At Padilla’s trial, the judge excluded all evidence of the abuse to which he was subjected and even admitted statements he made while in custody before he was Mirandized. Unsurprisingly, Padilla was convicted on charges of “supporting Islamic terrorism overseas” — but not any actual Terrorist plots (“The government’s chief evidence was an application form that government prosecutors said Mr. Padilla, 36, filled out to attend an Al Qaeda training camp in Afghanistan in 2000”) — and then sentenced to 17 years in prison, all above and beyond the five years he was imprisoned with no due process.

Not content with what was done to Padilla, the Bush DOJ — and then the Obama DOJ — contested the sentence on appeal, insisting that it was too lenient; Padilla also appealed, arguing that the trial court made numerous errors in excluding his evidence while allowing the Government’s. Yesterday, a federal appeals panel of the 11th Circuit issued a ruling, by a 2-1 vote, rejecting each and every one of Padilla’s arguments. It then took the very unusual step of vacating the 17-year-sentence imposed by the trial court as too lenient and, in effect, ordered the trial judge to impose a substantially harsher prison term:

Padilla’s sentence is substantively unreasonable because it does not adequately reflect his criminal history, does not adequately account for his risk of recidivism, was based partly on an impermissible comparison to sentences imposed in other terrorism cases, and was based in part on inappropriate factors …

As the dissenting judge explained, this decision is extraordinary because trial judges — not judges sitting afterward on appeal — are the ones who hear all the evidence and thus have very wide discretion to determine the appropriate sentence. But more so, in this case, a sentence less than the full maximum was warranted because “the trial judge correctly concluded that a sentence reduction is available to offenders who have been subjected to extraordinarily harsh conditions of pre-trial confinement.” About that point, the dissenting judge documented:

Padilla presented substantial, detailed, and compelling evidence about the inhumane, cruel, and physically, emotionally, and mentally painful conditions in which he had already been detained for a period of almost four years. For example, he presented evidence at sentencing of being kept in extreme isolation at he military brig in South Carolina where he was subjected to cruel interrogations, prolonged physical and mental pain, extreme environmental stresses, noise and temperature variations, and deprivation of sensory stimuli and sleep.

In sentencing Padilla, the trial judge accepted the facts of his confinement that had been presented both during the trial and at sentencing, which also included evidence about the impact on one’s mental health of prolonged isolation and solitary confinement, all of which were properly taken into account in deciding how much more confinement should be imposed. None of these factual findings, nor the trial judge’s consideration of them in fashioning Padilla’s sentence, are challenged on appeal by the government or the majority.

Read the rest here at Salon.com.

Federal Lawsuit Challenges 27 Years of Supermax Confinement

SolitaryWatcch.wordpress.com
March 26, 2010

by James Ridgeway and Jean Casella

A suit brought by law students on behalf of one of the nation’s most most notorious supermax prisoners could break new ground in challenging long-term solitary confinement on Constitutional grounds.

Earlier this year, we wrote about the case of Thomas Silverstein, who has now spent 27 years in solitary under a “no human contact” order–and who recently sued the Bureau of Prisons with the help of the Civil Rights Law Clinic at the University of Denver. This week, a decision by a federal district court judge cleared the way for the case to move forward. Alan Prendergast, of the Denver weekly Westword, reported on these latest developments.

When you’ve spent your time since the early days of the Reagan years in a cell smaller than some people’s closets, progress tends to get measured in small, small increments rather than sweeping events.

But Thomas Silverstein, America’s most isolated federal prisoner, got some momentous news today. His lawsuit challenging his decades of solitary confinement is still alive.

U.S. District Court Judge Philip Brimmer has ruled that Silverstein’s case, which raises questions about possible constitutional violations in the way the U.S. Bureau of Prisons consigns prisoners to administrative segregation for years or even decades, can move forward — a decision that could have implications for other federal prisoners in solitary, too.

A bank robber who was convicted of killing two inmates while serving time in the federal penitentiary in Marion, Illinois, Silverstein was put under a “no contact” order after he managed to murder a correctional officer at the high-security pen in 1983. Since that time, he’s been in basement isolation cells with buzzing lights, in his own wing of the Leavenworth pen, and, since 2005, buried in the bowels of the U.S. Penitentiary Administrative Maximum (ADX) in Florence…

Prison officials have contended that the extreme degree of isolation Silverstein has endured — including little or no communication with other inmates and entire years spent without leaving his cell — is necessary, in light of his violent history. But in 2007, law students at the University of Denver’s Sturm College of Law filed suit on his behalf, challenging his long confinement as cruel and unusual punishment and for lack of due process.

Brimmer’s ruling dismisses some of Silverstein’s claims against individual defendants, but leaves intact his Fifth and Eighth Amendment claims against the BOP. Although the case is still a long way from trial, DU law professor Laura Rovner views the ruling as a rare victory in civil-rights activists’ efforts to challenge the nature of solitary confinement itself.

In an email to Solitary Watch earlier this week, Laura Rovner explained the significance of the judge’s decision:

Probably the most significant part is the decision on the Eighth Amendment claim, as it is one of only two or three in the entire country where a court has held that solitary confinement alone is enough to state a claim for cruel and unusual punishment, even absent mental illness or other physical harm.

We anticipate and hope that this decision will have a positive impact on the ability of litigators across the country to challenge the disturbing trend of holding individuals in solitary confinement indefinitely.

Photo: Self portrait by Tommy Silverstein

Silverstein, who is now 57, is believed to have been held in complete and continuous isolation for longer than any other federal prisoner. The suit filed by Rovner and her students alleges that the government’s “deliberate indifference has resulted in Plaintiff suffering deprivations that cause mental harm that goes beyond the boundaries of what most human beings can psychologically tolerate.”

The full text of the judge’s decision in the case can be found here.

For more on Tommy Silverstein, see Alan Prendergast’s 2007 article The Caged Life.

America’s “Most Isolated Man” Sues the Bureau of Prisons

Article written and published on SolitaryWatch, on 21 January 2010



by James Ridgeway and Jean Casella

Tommy Silverstein has spent 26 years in federal supermax prisons under a “no human contact” order. Now, with the help of students at the University of Denver’s law school, he is one of a handful of prisoners who are challenging long-term solitary confinement on Constitutional grounds.

Silverstein, now 57, was first sent to San Quentin for armed robbery in 1971, when he was 19. By age 23 he was in Leavenworth, where he was active in the Aryan Brotherhood. After his conviction for the murder of a fellow prisoner (which was later overturned), he landed in the control unit of the federal penitentiary in Marion, Illinois. There he was convicted of killing two more prisoners, and then a guard, whom he managed to stab while being walked, in shackles, back from the shower. Back at Leavenworth, ”Terrible Tommy” was placed in a remote underground cell known as the “Silverstein Suite,” where he remained until 2005, when he was transferred to the U.S. Penitentiary Administrative Maximum in Colorado, better known as ADX.

Alan Prendergast has been reporting on ADX for more than a decade for Denver’s weekly Westword, and in 2007 he wrote the definitive piece on Tommy Silverstein, called “The Caged Life.” As he describes it:

Located two miles outside of the high-desert town of Florence, ADX is the most secure prison in the country, a hunkered-down maze of locks, alarms and electronic surveillance, designed to house gang leaders, terrorists, drug lords and other high-risk prisoners in profound isolation. Its current guest list is a who’s who of enemies of the state, including Unabomber Ted Kaczynski, shoe bomber Richard Reid, plane bomber Dandenis Muñoz Mosquera, abortion clinic bomber Eric Rudolph and double-agent Robert Hanssen.

When it opened in 1994, ADX was hailed as the solution to security flaws at even the highest levels of the federal prison system. Much of the justification for building the place stemmed from official outrage at the brutal murders of two guards in the control unit of the federal pen in Marion, Illinois, during a single 24-hour period in 1983. The first of those killings was committed by Thomas Silverstein, who was already facing multiple life sentences for previous bloodshed at Marion. The slaying of corrections officer Merle Clutts placed Silverstein under a “no human contact” order that’s prevailed ever since, and it gave the Bureau of Prisons the perfect rationale for building its high-tech supermax. Although he never bunked there until 2005, you could call ADX the House that Tommy Built.

Even within ADX, Silverstein is in a special restrictive unit where only one other prisoner, World Trade Center bomber Ramsey Yusuf, is housed, and where there is virtually no contact with prison staff. The man once branded “America’s most dangerous prisoner” is now described, on a web site maintained by his supporters, as its “most isolated man” (which, with the exception of terrorism suspects held under SAMs, he may well be).

Silverstein claims he is also a changed man. He has taught himself to read, write, and draw in prison, and is an accomplished artist. He says he’s learned self-control, and he hasn’t had a disciplinary writeup in 20 years. “The BOP shrinks chalk it up as me being so isolated I haven’t anyone to fight with,” he wrote to Alan Prendergast, “but they’re totally oblivious to all the petty BS that I could go off on if I chose to. I can toss a turd and cup of piss with the best of ‘em if I desired. What are they going to do, lock me up?”

But students at the University of Denver’s Sturm College of Law, who filed a suit on his behalf in federal court in late 2007, aren’t claiming that Tommy Silverstein is now a nice guy. They’re arguing that his conditions of confinement constitute cruel and unusual punishment, in violation of the Eighth Amendment to the Constitution, and also violate his Fifth Amendment right to due process. The suit filed by Civil Rights Law Clinic at DU, which has also represented other ADX inmates, alleges that the government’s “deliberate indifference has resulted in Plaintiff suffering deprivations that cause mental harm that goes beyond the boundaries of what most human beings can psychologically tolerate.”

Read the rest here.

Drawings by Tommy Silverstein