AG Expands Authority to Segregate Detainees and Monitor Their Communications with Attorneys

IMMIGRATION LAW & POLICY

Arrest and Detention

AG EXPANDS AUTHORITY TO SEGREGATE DETAINEES AND MONITOR THEIR COMMUNICATIONS WITH ATTORNEYS
Immigrants' Rights Update, Vol. 15, No. 7, Nov. 16, 2001

Attorney General John Ashcroft has issued a final rule, effective Oct. 30, 2001, that expands the authority of the director of the Bureau of Prisons (BOP), and the heads of all other components of the U.S. Dept. of Justice that have custody of individuals, to impose "special administrative measures" to limit and monitor communications of certain detainees. These measures may be imposed against detainees who are considered to pose a risk of disclosing classified information and against detainees who are identified as posing a risk that their communications or contacts with other persons could result in death or serious bodily injury. The rule expands existing regulations by allowing the attorney general to designate the need for such special administrative measures for periods of up to one year, rather than 120 days, and by extending these measures beyond the BOP to all components of the Justice Dept. that detain individuals. The rule also authorizes monitoring of communications between detainees and their attorneys without a warrant, where the attorney general so orders.

Regulations currently provide that the director of the BOP may impose special administrative measures against a detainee where the head of a U.S. intelligence agency certifies to the attorney general that there is a danger that the detainee will disclose classified information that if disclosed would pose a threat to national security. 28 C.F.R. § 501.2. Current regulations also authorize the director of the BOP to impose such measures upon written notification by the attorney general or the head of a federal law enforcement or intelligence agency that there is a substantial risk that a prisoner's communications or contacts with others could result in death or serious injury to persons or substantial damage to property also entailing a risk of death or serious bodily injury. 28 C.F.R. § 501.3. These special measures can include administrative detention and/or limiting correspondence, visitation, interviews with news media, and use of the telephone. They may be imposed for up to 120 days and may be re-imposed for additional 120-day periods only if the attorney general or other authorized official gives written notification that the circumstances originally identified continue to exist.

The new rule expands the authority to impose these special administrative measures in several ways. First, in place of the 120-day limitation, the measures now may be imposed for a period of up to one year and re-imposed for additional one-year periods. Second, the measures may be re-imposed even if the circumstances that warranted the initial action no longer exist, as long as there continues to be a danger that would warrant imposing the measures. Third, the rule grants the same authority to impose these measures held by the BOP director to the commissioner of the Immigration and Naturalization Service, the director of the U.S. Marshals Service, and other "appropriate officials of the Department of Justice having custody of persons for whom special administrative measures are required."

The new rule also authorizes the monitoring of communications between detainees and their attorneys without a warrant, where the attorney general orders such monitoring based on information provided by the head of a federal law enforcement or intelligence agency. That information must indicate "that reasonable suspicion exists to believe that a particular inmate may use communications with attorneys or their agents to further or facilitate acts of terrorism." Unless the monitoring has been authorized by a court, the director of the agency having custody of the detainee must provide written notice to the detainee and the attorneys involved explaining that their communications may be monitored. The rule provides that, in order "to protect the attorney-client privilege," a "privilege team" is to be formed "consisting of individuals not involved in the underlying investigation." The rule further provides: "Except in cases where the person in charge of the privilege team determines that acts of violence or terrorism are imminent, the privilege team shall not disclose any information unless and until such disclosure has been approved by a federal judge." The supplementary information to the rule explains that communications to attorneys that further illegal acts are not privileged, and "it is intended that the use of a taint team and the building of a firewall will ensure that the communications which fit under the protection of the attorney-client privilege will never be revealed to prosecutors and investigators." As with the other provisions of the proposed rule, the monitoring of attorney communications applies to individuals detained by any component of the DOJ that has custody of detainees.

The final rule took effect on Oct. 30, 2001; written comments to the rule must be submitted on or before Dec. 31, 2001.

66 Fed. Reg. 55,062-66 (Oct. 31, 2001).