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5 April 2007
[Federal Register: April 4, 2007 (Volume 72, Number 64)]
[Rules and Regulations]
[Page 16271-16275]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04ap07-8]
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DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Parts 500 and 501
[BOP-1116; AG Order No. 2878-2007]
RIN 1120-AB08
National Security; Prevention of Acts of Violence and Terrorism
AGENCY: Bureau of Prisons, Department of Justice.
ACTION: Final rule.
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SUMMARY: This rule finalizes the interim rules on Special
Administrative Measures that were published on October 31, 2001 (66 FR
55062). The previously existing regulations authorized the Bureau of
Prisons (Bureau), at the direction of the Attorney General, to impose
special administrative measures with respect to specified inmates,
based on information provided by senior intelligence or law enforcement
officials, if determined necessary to prevent the dissemination of
either classified information that could endanger the national
security, or of other information that could lead to acts of violence
and/or terrorism. The interim rule extended the period of time for
which such special administrative measures may be imposed from 120 days
to up to one year, and modified the standards for approving extensions
of such special administrative measures. In addition, where the
Attorney General has certified that reasonable suspicion exists to
believe that an inmate may use communications with attorneys (or agents
traditionally covered by the attorney-client privilege) to further or
facilitate acts of violence and/or terrorism, the interim rule amended
the previously existing regulations to provide that the Bureau must
provide appropriate procedures to monitor or review such communications
to deter such acts, subject to specific procedural safeguards, to the
extent permitted under the Constitution and laws of the United States.
The interim rule also requires the Director of the Bureau of Prisons to
give written notice to the inmate and attorneys and/or agents before
monitoring or reviewing any communications as described in this rule.
The interim rule also provided that the head of each component of the
Department of Justice that has custody of persons for whom special
administrative measures are determined to be necessary may exercise the
same authority to impose such measures as the Director of the Bureau of
Prisons.
DATES: Effective date: June 4, 2007.
ADDRESSES: Rules Unit, Office of the General Counsel, Bureau of
Prisons, 320 First Street, NW., Washington, DC 20534.
FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of the General
Counsel, Bureau of Prisons, (202) 307-2105.
SUPPLEMENTARY INFORMATION: This rule finalizes interim rules on Special
Administrative Measures that were published on October 31, 2001 (66 FR
55062). These rules are codified at 28 CFR 501.2 (national security)
and 501.3 (violence and terrorism). We received approximately 5000
comments in opposition to the rule, which we discuss below.
Section 501.2
Section 501.2 authorizes the Director of the Bureau, at the
direction of the Attorney General, to impose special administrative
measures with respect to a particular inmate that are reasonably
necessary to prevent disclosure of classified information. These
procedures may be implemented after written certification by the head
of a United States intelligence agency that the unauthorized disclosure
of such information would pose a threat to the national security and
that there is a danger that the inmate will disclose such information.
These special administrative measures ordinarily may include housing
the inmate in special housing units and/or limiting certain privileges,
including, but not limited to,
[[Page 16272]]
correspondence, visiting, interviews with representatives of the news
media, and use of the telephone, as is reasonably necessary to prevent
the disclosure of classified information.
The interim rule made no change in the substantive standards for
the imposition of special administrative measures, but changed the
initial period of time under Sec. 501.2 from a fixed 120-day period to
a period of time designated by the Director, up to one year. The rule
also allows the Director to extend the period for the special
administrative measures for additional one-year periods, based on
subsequent certifications from the head of an intelligence agency that
there is a danger that the inmate will disclose classified information
and that the unauthorized disclosure of such information would pose a
threat to national security. In addition, this rule provides that the
subsequent certifications by the head of an intelligence agency may be
based on the information available to the intelligence agency.
Section 501.3
Section 501.3 also authorizes the Director of the Bureau, on
direction of the Attorney General, to impose similar special
administrative measures (with respect to a particular inmate) that are
reasonably necessary to protect persons against the risk of death or
serious bodily injury. These procedures may be implemented after
written notification from the Attorney General or, at the Attorney
General's discretion, from the head of a Federal law enforcement or
intelligence agency, that there is a substantial risk that an inmate's
communications or contacts with other persons could result in death or
serious bodily injury to persons, or substantial damage to property
that would entail the risk of death or serious bodily injury to
persons.
The interim rule made no change in the substantive standards for
the implementation of special administrative measures under Sec.
501.3(a). However, the interim rule allows the Director, with the
approval of the Attorney General, to impose special administrative
measures for a longer period of time, not to exceed one year, in cases
involving acts of violence and/or terrorism. In addition, the rule
provides authority for the Director to extend the period for the
special administrative measures for additional periods, up to one year,
after receipt of additional notification from the Attorney General or,
at the Attorney General's discretion, from the head of a Federal law
enforcement or intelligence agency.
The interim rule also modified the standard for approving
extensions of the special administrative measures. The rule provides
that the subsequent notifications by the Attorney General, or the head
of the Federal law enforcement or intelligence agency should focus on
the key factual determination--that is, whether the special
administrative measures continue to be reasonably necessary, at the
time of each determination, because there is a substantial risk that an
inmate's communications or contacts with persons could result in death
or serious bodily injury to persons, or substantial damage to property
that would entail the risk of death or serious bodily injury to
persons.
Where the Attorney General, or the head of a Federal law
enforcement or intelligence agency, initially made such a
determination, then the determination made at each subsequent review
should not require a de novo review, but only a determination that
there is a continuing need for the imposition of special administrative
measures in light of the circumstances.
In either case, the affected inmate may seek review of any special
administrative measures imposed pursuant to Sec. Sec. 501.2 or 501.3
in accordance with paragraph (a) of this section through the
Administrative Remedy Program, 28 CFR part 542.
Justification for Special Administrative Measures Rules
Although this rule does not alter the substantive standards for the
initial imposition of special administrative measures under Sec. Sec.
501.2 and 501.3, the Bureau's final rule implementing this section in
1997 devoted a substantial portion of the supplementary information
accompanying the rule to a discussion of the relevant legal issues. 62
FR 33730-31. As the U.S. Supreme Court noted in Pell v. Procunier, 417
U.S. 817, 822-23 (1974), ``a prison inmate retains those First
Amendment rights that are not inconsistent with his status as an inmate
or with the legitimate penological objectives of the corrections
system. * * * An important function of the corrections system is the
deterrence of crime. * * * Finally, central to all other corrections
goals is the institutional consideration of internal security within
the corrections facilities themselves.'' (Emphasis added.)
This regulation, with its concern for security and protection of
the public, clearly meets this test. The changes made by this rule
regarding the length of time and the standards for extension of periods
of special administrative measures do not alter the fundamental basis
of the rules that were adopted in 1997. Instead, they more clearly
focus the provisions for extensions--both the duration of time and the
standards--on the continuing need for restrictions on a particular
inmate's ability to communicate with others within or outside the
detention facility in order to avoid threats to national security or
risks of terrorism and/or violence.
In every case, the decisions made with respect to a particular
inmate will reflect a consideration of the issues at the highest levels
of the law enforcement and intelligence communities. Where the issue is
protection of national security or prevention of acts of violence and/
or terrorism, it is appropriate for government officials, at the
highest level and acting on the basis of their available law
enforcement and intelligence information, to impose restrictions on an
inmate's public contacts that may cause or facilitate such acts.
Comments
We received approximately 5000 comments in opposition to the rule.
All but 44 comments were variations of two form letters. We also
received one comment in support of the rule. Other than the single
supporting comment, all comments expressed identical and/or overlapping
themes. We discuss the comments and our responses below.
Monitoring of Attorney-Client Communications
Comment: The provision allowing monitoring of attorney-client
communications breaches attorney-client privilege and deprives inmates
of the right to effective assistance of counsel under the Sixth
Amendment.
Response: We acknowledge that the Sixth Amendment limits the
government's ability to monitor conversations between a detainee and
his or her attorney. Nonetheless, as we noted in the preamble to the
interim rule, the fact of monitoring by itself does not violate the
Sixth Amendment right to effective assistance of counsel. Weatherford
v. Bursey, 429 U.S. 545 (1977). Rather, the propriety of monitoring
turns on a number of factors, including the purpose for which the
government undertakes the monitoring, the protections afforded to
privileged communications, and the extent to which, if at all, the
monitoring results in information being communicated to prosecutors and
used at trial against the detainee.
[[Page 16273]]
In Weatherford, a government informant was present at two meetings
between a defendant, Bursey, and his attorney during which Bursey and
the attorney discussed preparations for Bursey's criminal trial. To
preserve his usefulness as an undercover agent, the informant could not
reveal that he was working for the government and thus sat through the
meetings and heard discussions pertaining to Bursey's defense. Bursey
later brought a suit under 42 U.S.C. 1983, claiming that his Sixth
Amendment right had been violated. The court of appeals found for
Bursey, holding that the informant's presence during the attorney-
client meetings necessarily violated Bursey's Sixth Amendment right.
The Supreme Court reversed, explaining that
[t]he exact contours of the Court of Appeals' per se right-to-
counsel rule are difficult to discern; but as the Court of Appeals
applied the rule in this case, it would appear that if an undercover
agent meets with a criminal defendant who is awaiting trial and with
his attorney and if the forthcoming trial is discussed without the
agent's revealing his identity, a violation of the defendant's
constitutional rights has occurred, whatever was the purpose of the
agent in attending the meeting, whether or not he reported on the
meeting to his superiors, and whether or not any specific prejudice
to the defendant's preparation for or conduct of the trial is
demonstrated or otherwise threatened.
Weatherford, 429 U.S. at 550.
The Supreme Court expressly rejected such a per se rule and denied
that having a government agent hear attorney-client communications
results, without more, in an automatic violation of Sixth Amendment
rights. Instead, the Court noted that it was significant that the
government had acted not with the purpose of learning Bursey's defense
strategy, but rather with the legitimate law enforcement purpose of
protecting its informant's usefulness. Id. at 557. The Court further
explained that ``unless [the informant] communicated the substance of
the Bursey-Wise conversations and thereby created at least a realistic
possibility of injury to Bursey or benefit to the State, there can be
no Sixth Amendment violation.'' Id. at 557-58.
Thus, the Court indicated that the Sixth Amendment analysis
requires considering the government's purpose in overhearing attorney-
client consultations and whether any information from overheard
consultations was communicated to the prosecution in a manner that
prejudiced the defendant.
Weatherford supports the concept that when the government possesses
a legitimate law enforcement interest in monitoring detainee-attorney
conversations, no Sixth Amendment violation occurs so long as
privileged communications are protected from disclosure and no
information recovered through monitoring is used by the government in a
way that deprives a defendant of a fair trial. This rule adheres to
these standards by permitting monitoring only when the Attorney General
certifies that reasonable suspicion exists to believe that a particular
detainee may use communications with attorneys or their agents to
further or facilitate acts of terrorism, and by establishing a strict
firewall to ensure that attorney-client communications are not revealed
to prosecutors.
Of course, if the government detects communications intended to
further acts of terrorism (or other illegal acts), those communications
do not fall within the scope of the attorney-client privilege. That
privilege affords no protection for communications that further ongoing
or contemplated illegal acts, including acts of terrorism. See, e.g.,
Clark v. United States, 289 U.S. 1, 15 (1933) (such a client ``will
have no help from the law''). The crime-fraud exception applies even if
the attorney is unaware that his professional services are being sought
in furtherance of an illegal purpose, see, e.g., United States v.
Soudan, 812 F.2d 920, 927 (5th Cir. 1986), and even if the attorney
takes no action to assist the client, see, e.g., In re Grand Jury
Proceedings, 87 F.3d 377, 382 (9th Cir. 1996). A detainee's efforts to
use his or her lawyer to plan acts of terrorism simply are not
protected by the attorney-client privilege.
This rule carefully and conscientiously balances an inmate's right
to effective assistance of counsel against the government's
responsibility to thwart future acts of violence and/or terrorism
perpetrated with the participation or direction of Federal inmates. In
those cases where the government has substantial reason to believe that
an inmate may use communications with attorneys or their agents to
further or facilitate acts of violence and/or terrorism, the government
has a responsibility to take reasonable and lawful precautions to
safeguard the public from those acts.
Comment: The monitoring provision of the rule violates the First
Amendment right to petition the government, which includes the right to
access courts. The commenter argued that the right to access courts
involves consulting lawyers in confidence, which, according to the
commenters, is infringed upon by this rule. Some commenters also argued
that the provision likewise violates the Fifth Amendment by
circumventing due process, which requires access to courts to
``challenge unlawful convictions and to seek redress for violations''
of constitutional rights. Procunier v. Martinez, 416 U.S. 396, 419
(1974).
Response: For the reasons set forth above in our discussion of the
monitoring provision and attorney-client privilege, we disagree that
the rule infringes upon inmates' rights to consult lawyers in
confidence. Inmates retain the same ability to access courts and
consult lawyers as they had before the date of the Special
Administrative Measures interim rule. We therefore do not change the
rule based on these comments.
Further, no due process rights are infringed. An inmate whose
conversations with his/her attorney are monitored will enjoy strict
procedural protections. First, the inmate and attorney will be notified
that their communications are being monitored (Sec. 501.3(d)(2)).
Second, a ``privilege team'' will conduct the monitoring and will be
separated by a firewall from the personnel responsible for prosecuting
the inmate (Sec. 501.3 (d)(3)). Third, the privilege team may disclose
information only with the prior approval of a Federal judge or where
acts of violence and/or terrorism are imminent (Sec. 501.3(d)(3)). The
rule carefully balances inmates' need to communicate with their
attorneys against the United States' need to prevent future acts of
violence and/or terrorism.
Comment: The monitoring provision in the rule violates the Fourth
Amendment and Federal wiretapping statutes (18 U.S.C. 2510-2522).
Commenters posited that before the government can intercept oral
communications, it must demonstrate to a Federal judge probable cause
to believe both that a particular individual is committing a crime, and
that the individual will be communicating about that crime. 18 U.S.C.
2518(3).
Response: Title 18, Sec. 2518(7) of the United States Code allows
an exception to the court order requirement upon the Attorney General's
designee's determination that an emergency situation exists that
involves immediate danger of death or serious physical injury to any
person, or conspiratorial activities threatening the national security
interest. Section 2518(7), (a)(i) and (a)(ii). Therefore, if the
Attorney General so authorizes, and if, according to Sec. 2518(7)(b),
there are grounds upon which a court order could reasonably have been
granted to allow interception of communications, privilege teams as
authorized by the Attorney General may monitor attorney-client
communications as provided for in this rule.
[[Page 16274]]
We note that only persons held under SAM restrictions for acts of
violence or terrorism, where lives are directly at risk, may
potentially be subjected to monitoring of their attorney-client
conversations. Even then, such attorney-client monitoring will be
resorted to only after the Attorney General has made a specific
determination that it is likely that attorney-client communications
will be used to convey improper messages to or from the SAM restrictee.
Since the effective date of the interim rule on October 30, 2001, this
provision has been invoked only once, after the government obtained
specific evidence revealing that the attorney had previously misused
the attorney-client privilege in order to convey improper messages to
and from her client. In other words, the Attorney General determined
that the situation involved ``immediate danger of death or serious
physical injury to any person, or conspiratorial activities threatening
the national security interest,'' under 18 U.S.C. 2518(7).
As has been recognized by the United States Supreme Court (see our
response to the comment above, regarding the Sixth Amendment), the
Sixth Amendment does not protect an attorney's communications with a
client that are made to further the client's ongoing or contemplated
criminal acts. Such communications do not assist in the preparation of
a client's defense, and, therefore, are not legally privileged.
Still, before such a SAM restriction may be imposed, the Attorney
General must make a specific determination that attorney-client
communications will be used to circumvent the purpose of the SAM, that
is, to pass information that might reasonably lead to acts of violence
or terrorism resulting in death or serious bodily injury, or cause
property damage that would lead to the infliction of death or serious
bodily injury. Even when attorney-client communications are to be
monitored for the purposes of the SAM, these communications remain
subject to the attorney-client privilege to the extent recognized under
applicable law.
Comment: The monitoring provision is too broad in that it applies
unjustly to pretrial inmates, immigration violators, witnesses, and
others in Federal (both Bureau of Prisons and non-Bureau) custody.
Response: Before this rulemaking, Sec. Sec. 501.2 and 501.3
covered only inmates in Bureau of Prisons custody. However, there are
instances when a person is held in the custody of other officials of
the Department of Justice (for example, the Director of the United
States Marshals Service). To ensure consistent application of these
provisions relating to special administrative measures in those
circumstances where such restrictions are necessary, this rule
clarifies that the appropriate officials of the Department of Justice
having custody of persons for whom special administrative measures are
required may exercise the same authorities as the Director of the
Bureau of Prisons and the Warden. In such cases, the persons upon whom
the special administrative measures are imposed must fall within the
regulatory definition of ``inmate'' at Sec. 500.1.
Previously, the interim rule identified, as an example of an
official of the Department of Justice who could exercise the same
authorities as the Director of the Bureau of Prisons and the Warden,
the Commissioner of the Immigration and Naturalization Service (INS).
See 66 FR 55064 (Applicability to All Persons in Custody Under the
Authority of the Attorney General). On March 1, 2003, however, the INS
ceased to exist, and its functions were transferred to the Department
of Homeland Security (DHS) pursuant to the Homeland Security Act of
2002 (HSA), Pub. L. No. 107-296, 116 Stat. 2135. Section 441 of the HSA
transferred to DHS all functions of the detention and removal program
previously under the INS Commissioner. The Secretary of Homeland
Security, via Delegation No. 7030, delegated all the authority vested
in section 441 of the HSA to the Immigration and Customs Enforcement
(ICE), a component of DHS. Accordingly, the detention authority
previously exercised by the INS Commissioner now rests with ICE. Given
that ICE detainees may be housed in Bureau facilities or Bureau
contract facilities, this rule would apply to those inmates.
Inmates convicted of Federal crimes, and many others in custody at
Bureau facilities or Bureau contract facilities, such as pretrial
inmates, witnesses, and immigration violators, have equal potential to
attempt to perpetrate acts of violence and/or terrorism and/or acts
that threaten national security. As discussed above and in the preamble
to the interim rule (66 FR 55062), neither the special administrative
measures previously authorized by this rule nor the monitoring
provision currently authorized by this rule will be imposed
arbitrarily. The Attorney General will carefully and systematically
review each case and the potential threats before imposing special
administrative measures or monitoring attorney-client communications.
Regarding ``Vagueness'' of the Rule
According to the commenters, the rule fails to
1. Detail the Administrative Remedies available if inmates oppose
Special Administrative Measures (SAM). The Administrative Remedies
available, which are the same for any issue an inmate wishes to pursue
with the Bureau, are discussed in 28 CFR part 542.
2. Detail SAM conditions (how long confined to cell, program
participation, exercise, recreation, training, association with other
inmates). We do not detail SAM conditions in this rule because each
case varies with the particular security needs of the inmate in
question.
3. Define the ``substantial standards'' for imposing SAM.
4. Define what constitutes ``reasonable suspicion'' of terrorist
activity which will prompt the Attorney General to monitor attorney-
client communications.
For items 3 and 4, as we note above, we do not detail ``substantial
standards'' or what will prompt monitoring of attorney-client
communications because each case varies with the particular security
concerns raised by each situation. In general, however, the Attorney
General will determine that SAMs are necessary in light of clear
evidence that communication or contact with members of the public could
result in death or serious bodily injury or damage to property, as
stated in the rule. Generally, this will be shown through prior acts of
violence or terrorism and evidence of a continuing threat due to
contacts with members of the public who may contribute to or undertake
acts of violence or terrorism.
5. Define ``acts of violence or terrorism.''
The United States Code, Title 18, 2332b, describes ``[a]cts of
terrorism transcending national boundaries.'' In particular, the
``Federal crime of terrorism'' is defined at length in subsection
(g)(5). As such, we need not reiterate that definition in the rule
text.
Regulatory Certifications
The Department has determined that this rule is a significant
regulatory action for the purpose of Executive Order 12866, and
accordingly this rule has been reviewed by the Office of Management and
Budget.
The Department certifies, for the purpose of the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.), that this rule will not have a
significant economic impact on a substantial number of small entities
within the meaning of the Act.
[[Page 16275]]
Because this rule pertains to the management of offenders committed to
the custody of the Department of Justice, its economic impact is
limited to the use of appropriated funds.
This rule will not have substantial direct effects on the states,
the relationship between the national government and the states, or the
distribution of power and responsibilities among the various levels of
government. Therefore, in accordance with Executive Order 13132, it is
determined that this rule does not have sufficient federalism
implications to warrant the preparation of a Federalism Assessment.
List of Subjects in 28 CFR Parts 500 and 501
Prisoners.
0
Accordingly, under rulemaking authority vested in the Attorney General
in 5 U.S.C. 552(a), we adopt as final the interim rule published on
October 31, 2001, at 66 FR 55062, without change.
Dated: March 29, 2007.
Alberto R. Gonzales,
Attorney General.
[FR Doc. E7-6265 Filed 4-3-07; 8:45 am]
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