(CN) - A man convicted of aiding al-Qaida can pursue claims that Uncle Sam has cut off his speech in prison, but he'll face a heavy burden of proof, a federal judge ruled.
Kifah Jayyousi is the last remaining plaintiff from a group that sued the government in 2010 claiming various rights violations for their assignment to a so-called Communications Management Unit, or CMU, that limits the outside communications of federal prisoners in the interest of safety and security.
The U.S. Bureau of Prisons established two CMUs, in Terre Haute, Ind., and in Marion, Ill., between 2006 and 2008.
Five plaintiffs became three over the years - Jayyousi, Yassin Aref and Daniel McGowan - and the number of claims narrowed to two: free speech and due process.
The defendants remained the same: U.S. Attorney General Eric Holder, the Bureau of Prisons and three officials of that agency: Charles Samuels, D. Scott Dodrill and Leslie Smith. The individual defendants were sued in their official capacity, although Smith, chief of the prisons' Counter Terrorism Unit, also was sued as an individual by Jayyousi and McGowan.
Senior U.S. District Judge Barbara Rothstein found Friday that McGowan's case has been mooted by his release from federal prison.
McGowan, whose arson conviction stemmed from his involvement with the Earth Liberation Front, called the dismissal "crappy news" as he forwarded a statement from his attorneys with the Center for Constitutional Rights.
That organization noted that the restrictions McGowan suffered in CMUs included "a total ban on contact visits with his loved ones."
Rothstein also dismissed the claims against Smith as an individual, citing the Prison Litigation Reform Act, which bars claims by prisoners for mental or emotional injury suffered while in custody.
Jayyousi, on the other hand, has "a plausible claim" that he was kept in the so-called Communications Management Unit at the Federal Correctional Institution in Marion in retaliation for his religious and political speech, the Washington court found.
He was convicted in 2007 of conspiracy to murder, kidnap and maim in a foreign country, as well as conspiracy to provide material support to a terrorist organization.
Sentenced to 12 2/3 years in prison, Jayyousi started out in the general prison population. In June 2008, however, he was assigned to the CMU in Terre Haute on the recommendation of Smith, chief of the Counter Terrorism Unit, who cited Jayyousi's "significant communication, association and assistance to al-Qaida, a group which has been designated as a foreign terrorist organization."
In October 2010, Jayyousi was transferred to the CMU in Marion, where a few months later a manager of the unit recommended his return to the general population.
Smith opposed the transfer, pointing out that, while serving as a rotational Muslim prayer leader in 2008, Jayyousi delivered a sermon that included "statements which were aimed at inciting and radicalizing the Muslim inmate population in [the] CMU" in Terre Haute.
Jayyousi remained in the Marion CMU until May of this year, when he returned to the general population.
His complaint contends that, while the initial assignment to a CMU stemmed from the nature of his crime, his continued placement there represented retaliation for free-speech activities, particularly the 2008 sermon.
Claiming that the First Amendment did not protect Jayyousi's speech, the government said his claim should be dismissed.
Though many rights and privileges are lost to incarceration, Judge Rothstein noted that courts have determined that a prisoner retains First Amendment rights that "are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system."
"Speech that is inconsistent with legitimate penological interests may be 'unprotected as a matter of law,'" she wrote.
Jayyousi may be able to show that there was no penological interest - just retaliation - in keeping him in the CMU, according to the ruling.
"Contrary to defendants' protests, Jayyousi's claim is plausible," Rothstein wrote.
"Even if his convicted offense explains Jayyousi's initial placement in the CMU, it fails to explain his continued designation in the unit despite prison officials' recommendation that he be removed," she added.
Jayyousi's claim also should proceed because the content of the 2008 sermon, while "arguably inflammatory," did not advocate violence, terrorism or intimidation on its face, according to the ruling.
"Indeed, again granting Jayyousi the benefit of all inferences, there is arguably a disparity between the actual content of the sermon and Smith's description of it," she wrote. "Thus Jayyousi's claim of retaliation will survive the motion to dismiss."
For Jayyousi's claims to survive the summary judgment phase, however, he will need to produce evidence sufficient to prove "pertinent motive," the judge added.
"It may be very difficult for Jayyousi to produce such evidence here," Rothstein wrote. "Nevertheless, he must be afforded that opportunity."
The ruling does not touch upon the third plaintiff, Yassin Aref, who was reportedly released back into Marion's general prison population in 2011 and then transferred to a low-security federal prison in Loretto, Pa.
Aref is serving 15 years on material support for terrorism
and other charges, but his defense team says that an appeal is forthcoming based on new evidence that purportedly shows Aref has been the victim in a case of mistaken identity.
Project Salam says it and other groups that support Aref began a march this past weekend from Albany to the federal courthouse in Binghamton, which they hope to reach July 23 and hold a press conference.