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Order: Strip searches violate religious rights of ‘American Taliban’

September 1, 2016

A federal judge has ruled strip searches prior to non-contact visits are a violation of the religious rights of Yahya (John Walker) Lindh, the so-called “American Taliban” who’s housed in the federal prison at Terre Haute. The judge also chided federal authorities who ignored Supreme Court precedent that was on point in the case.

Judge Jane Magnus-Stinson in the U.S. District Court for the Southern District of Indiana ruled Tuesday that the strip searches of Lindh, an inmate in the Communications Management Unit at Terre Haute, violated his protections under the federal Religious Freedom Restoration Act, but not under the Fourth Amendment. She issued an injunction barring the prison from conducting such searches, but only of Lindh, unless wardens can later persuade the court the searches are warranted.

Under the policy, CMU inmates are forced to disrobe and be visually searched before so-called social visits, typically with lawyers or family members. Visits at the facility are conducted under the supervision of guards while inmates and visitors are separated by Plexiglas and communicate by phone. Lindh argued the strip searches violated his religious beliefs in Islamic teachings against exposing his body.

“The Warden’s policy forces Mr. Lindh to choose between undergoing a visual strip search so that he can engage in a non-contact visit — which the Warden does not dispute violates Mr. Lindh’s sincerely held religious beliefs — or refusing the visual strip search and foregoing the non-contact visit. Making him choose between these options substantially burdens his religious exercise,” Magnus-Stinson wrote in a 29-page order. “The Court agrees with Mr. Lindh that reaching the opposite conclusion under these circumstances would make RFRA’s protections illusory.”

While the warden identified prison security and the unit’s goal of total monitoring of communications as compelling government interest furthered by the strip-search policy, he could not demonstrate this test is satisfied as it applied to Lindh, nor that the strip search was the least restrictive means of furthering those compelling interests.

“Mr. Lindh has been housed at the CMU since 2007 and has only had non-contact social visits with his family. The Warden cites no evidence that Mr. Lindh has violated or attempted to violate any communications-related policies either during or outside of his non-contact visits in the nine years he has been housed at the CMU or that Mr. Lindh’s family members present any type of security risk,” Magnus-Stinson wrote.

“By finding in favor of Mr. Lindh on his RFRA claim, the Court has not found the Warden’s visual strip search policy to be invalid with regard to any inmate other than Mr. Lindh. Instead, after applying the rigorous RFRA standards, the Court has found that the Warden has not met his burden to justify continued visual strip searches of Mr. Lindh before non-contact social visits. This holding does not mean that Mr. Lindh cannot be required to undergo other additional security measures that do not violate his sincerely held religious beliefs, and Mr. Lindh acknowledges as much.”

The order says other inmates in the unit may challenge the policy on RFRA grounds if they can demonstrate legitimate religious beliefs. Prison officials then could properly question the authenticity of a prisoner’s religiosity, Magnus-Stinson wrote.

Lindh, now 35, was fighting alongside Taliban when he was captured in Afghanistan after the U.S. invasion after the September 11 attacks. Lindh had been living in Afghanistan since before the attacks. He cooperated with authorities and was convicted of supplying services to the Taliban and carrying an explosive during the commission of a felony which may be prosecuted in the United States. He was sentenced to 20 years in prison.

Lindh previously succeeded in winning an injunction in Magnus-Stinson’s court that blocked a prison policy banning group prayer, which also violated RFRA. Both suits were filed on Lindh’s behalf by the American Civil Liberties Union of Indiana.

Magnus-Stinson had stern words in Tuesday’s opinion for the federal prison and its counsel, Jonathan A. Bont of the U.S. Attorney’s Office.

“The Court expresses its disappointment with the Warden’s failure to acknowledge Holt v. Hobbs, 135 S. Ct. 853 (2015) — the most recent United States Supreme Court case that is directly on point,” Magnus-Stinson wrote. In that case, justices held that an Arkansas federal prison’s policy barring a Muslim inmate from growing a half-inch beard violated the Religious Land Use and Institutionalized Persons Act, the counterpart to RFRA for incarcerated federal prisoners.

“Mr. Lindh cited Holt throughout his opening brief ... but the Warden did not cite or attempt to distinguish Holt in either of his summary judgment briefs. … Ignoring key precedent is not effective advocacy under any circumstance. The Court expects more from the Warden and counsel, both of whom are employed by the United States Department of Justice. “

The case is Lindh v. Warden, 2:14-cv-142.   



 

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