The Lynne Stewart Case
Stewart 's case is inetresting for many reasons, but I'm intrigued by the similarities between Rahman, KSM, and Tim McVeigh - all seemingly convenient patsies... I've bolded the most interesting part...
The Lynne Stewart Guilty Verdict: Stretching the Definition of "Terrorism" To Its Limits
Monday, Feb. 14, 2005
On February 10, after thirteen days of deliberations, a federal jury in New York City returned a guilty verdict in the case of 65-year-old attorney Lynne Stewart. The jury found Stewart guilty on five counts of defrauding the government, conspiracy, and providing support for terrorism.
Stewart will be sentenced on July 15. She may serve up to thirty years in prison. Appeals are expected to consume years. In the meantime, Stewart will lose her right to practice law and face hard prison time.
The eavesdropping on attorney-client communications that led to this prosecution would have been unimaginable before September 11. I will argue that this eavesdropping has a serious cost in inhibiting defense attorney's ability to zealously represent their clients. This cost is of a constitutional dimension: The Sixth Amendment's right to counsel cannot be served while the government is a third party present at attorney-client meetings.
Another problematic aspect of the Stewart prosecution is how far the definition of support for terrorism was stretched. Stewart never provided any financial support, weaponry -- or any other concrete aid -- for any act of terrorism. No act of terrorism is alleged to have resulted from her actions.
Stewart's supposed support for terrorism instead consisted of aiding her client in 2000 by giving a press release to Reuters News Service in Cairo, Egypt, and of being present when her co-defendants allegedly aided her client in writing a series of letters.
The Facts of the Case
Stewart was appointed by a federal court to represent Egyptian Sheik Omar Abdel Rahman. Rahman was convicted of conspiring to commit acts of terrorism in New York City in the months after the 1993 World Trade Center bombings. But Stewart had nothing to do with that conspiracy.
Rahman is currently serving a life sentence in federal prison hospital in Colorado (previously, he was serving his sentence in Minnesota).
Stewart continued to represent Rahman, after he was convicted, and his appeals were denied. She has said that her representation had two main purposes. One was trying to improve the terms of the blind and diabetic Sheik's confinement. Another was to try to convince the U.S. to return him to his home country, Egypt.
The government, however, claimed that her continued representation was a ruse so that she could aid the Sheik in getting messages out to his followers, members of the Islamic Group, an organization tied to terrorism.
For a time, the government simply denied Stewart access to her client. But in 2000, the Justice Department said that visits could resume if Stewart would agree to certain restrictions on their meetings.
As I explained in an earlier article, these restrictions are known as Special Administrative Measures (SAMs). Pursuant to regulations enacted in 1996, these restrictions can be placed on a federal prisoner's communications or contacts with the outside world - including visitors, and the media -- when the government believes "that there is a substantial risk that a prisoner'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."
The SAMs prohibited Stewart from having any contact with her client that the Department of Justice deemed to be outside the scope of "legal representation" and prohibited Rahman from having contact with anyone outside prison walls except his wife. The SAMs specifically restricted his access to the media.
Stewart agreed to the SAMs - having little choice, as it was the only way she could visit her client.
What Stewart did not know what that after she signed the SAMs, the government began surveillance of her visits, first under the 1994 Foreign Intelligence Surveillance Act warrant targeting her client, and then under specific regulations that allowed them to target her.
The Eavesdropping Regulation: How the Government Made Its Case
On October 31, 2001, Attorney General John Ashcroft, secretly amended the SAM regulations - without notice to the public. As amended, the regulations allow the Bureau of Prisons to conduct videotape and audiotape surveillance with respect to attorneys' communications with people in federal custody.
There is no exception for attorney-client privileged communications; indeed, the regulations contemplate that these sacrosanct conversations will be the very ones surveilled. Moreover, the regulations apply not only to convicted persons, but also to defendants awaiting trial - and even detainees against whom no charges are even pending. Finally, the surveillance can be broad: It can done "to the extent determined to be reasonably necessary for the purpose of deterring future acts of violence or terrorism."
No warrant is necessary for the surveillance to occur. Nor is specific notice to the attorney or the client that they will be monitored; according to the regulations. Rather, routine notice that their communications "may" be monitored is enough.
The government eavesdropped on Stewart's communications with Rahman - and these communications, along with her subsequent communications with the media, are the sole basis for her conviction.
The government alleges that Stewart never intended to abide by the SAMs, and that - as, it say, it discovered by eavesdropping - she violated them in several ways.
Along with Mohammed Yousry, an interpreter, and Ahmed Abdel Sattar who sometimes acted in the role of a law clerk, the government alleges, Stewart tried to thwart the government's surveillance. At trial, the government introduced surveillance tapes intending to demonstrate that Stewart served as a willing conduit for the Sheik, using her position as a lawyer as a smokescreen for illegal communications and conspiracies by people whose agenda she shared.
In particular, the government charges, Stewart violated the prohibition on outside contacts in two ways. First, it alleged in 2000, she released to Reuters News Service a statement from the Sheik to his followers saying that he was "withdrawing his support for a ceasefire that currently exists" with respect to violence that his followers in Egypt were engaged in (the cease-fire was declared after 58 tourists were slain in
Luxor, Egypt, in a bid to win the sheik's release). The government charged that the press release was a veiled message for the shiek's followers to engage in violence. Reuters ran a story about the statement in Arab newspapers.
Second, the government says Stewart was present when Yousry and Sattar allegedly helped the Sheik compose letters that served as communications to his followers. (Notably, though, while Yousry and Sattar speak Arabic, it is undisputed that Stewart neither speaks nor understands Arabic.)
In closing arguments, Prosecutor Andrew Dember argued that Stewart and the co-defendants effectuated a virtual "jail-break," in which Rahman did not actually get sprung from prison, but did get his messages of violence out to the world.
Yet no actual act of violence, terroristic or otherwise, has ever been linked to either the letters to the Sheik's followers, or the statement by the Sheik given to Reuters.
Yousry was convicted on the same charges as Stewart; Sattar was convicted of conspiracy to murder civilians.
The Constitutional Issues The Eavesdropping Regulations Raise
Stewart herself was represented by famed civil rights and criminal defense attorney Michael Tigar. Tigar argued, on her behalf that the surveillance regulation was unconstitutional - and thus that evidence procured as a result of surveillance should not be admissible at Stewart's trial. Although Tigar and Stewart lost their motion, their argument was a strong one.
The Sixth Amendment guarantees a criminal defendant's right to counsel. The Ashcroft eavesdropping regulations are unprecedented in the way they interpose the government between a client and his or her attorney - and thus violate this right. How can a defendant be expected to speak openly and candidly with counsel, and contribute to his own defense, when the government is listening on every conversation, recording every gesture, following every move?
The trial judge in the case, John G. Koeltl, should have suppressed the eavesdropping evidence, but instead, he ruled against Stewart. He did, however, rule for her on another constitutional claim.
Judge Koeltl's Rulings on the Terrorism Claims
Remember, Stewart was convicted of defrauding the government, conspiracy, and providing support for terrorism.
The "defrauding the government" charge was weak: It was based on the government's allegation that Stewart never intended to abide by the SAMs, as she had agreed to do. But it seems likely that Stewart's intention, instead, was to abide by the SAMs in order to continue to represent her client.
Moreover, the original terrorism charge against Stewart was unconstitutional, as Judge Koeltl held. Initially, Stewart was charged under a federal statute that prohibited providing "material support" for terrorism - regardless of one's intent in doing so.
The government said Stewart violated the statute by making Rahman's message available to the press. (Where was the "material" support? The government said it came in the form of "personnel" - meaning, Stewart herself.)
Judge Koeltl wisely reasoned that to prosecute Stewart under this theory was unconstitutional. She lacked sufficient notice that the statute would be applied this way - to prohibit a news release, rather than, say, the provision of weaponry. He ruled that the statute applied to the facts of Stewart's case was too vague to satisfy Due Process requirements.
So the government, as it explained in a press release, then indicted Stewart for the same acts again, under another federal statute - one that, unlike the first statute, requires intent.
Passed in 1994, after the 1993 bombing of the World Trade Center, the statute prohibits defines a violation as giving material support to anyone while intending or knowing that the support will be used in connection with any one of a list of violent crimes.
What violent crime did the government cite? It claimed Sattar was alleged to have been conspiring to commit terrorism abroad, urging Rahman's followers to kill Jews. But again, no such crimes have ever been linked to the Reuters news release.
This time, Judge Koeltl found the statute, as applied, to be constitutional. But in doing so, he interpreted the intent standard to require very specific proof: proof that
Stewart knew she was providing resources to carry out a specific violent crime.
The Stewart Conviction is a Warning to Defense Attorneys
Stewart's defense team had doubts that the prosecution could carry this strong burden of proof. Though the facts were basically not in dispute, Tigar argued that Stewart was acting as a zealous advocate.
The ABA's Code of Professional Conduct demands zealousness of lawyers. It also mandates that lawyers make their services available to unpopular causes. Stewart was fulfilling both duties by agreeing to serve as court-appointed attorney for Rahman, the defense argued.
Stewart admitted she violated the SAMs, but she was duty-bound to do so, she said. What self-respecting defense attorney, she contended, would let a government restriction stand in the way of the confidential attorney-client relationship?
Through helping with the news release, Tigar maintained, Stewart, as his lawyer, was trying to keep her client's case before the public and the government, and ultimately hoping to gain his release to Egypt.
The government countered, and the jury agreed, that when she so spoke, and aided her co-defendants in speaking, she was no longer acting as a lawyer. She was aiding and abetting terrorism.
Prior to September 11, 2001, many attorneys might have sided with Stewart. They would certainly have seen a blatant Sixth Amendment violation in both the SAMs and the eavesdropping regulations - and possibly seen First Amendment violations when it came to the SAMs. And they might also have agreed that to honor the right to counsel, an attorney ought to try to resurrect the traditional attorney-client relationship despite these unconstitutional constraints.
Now, however, the First and Sixth Amendments have been gutted--at least in terms of the attorney-client relationship. Indeed, as I argued in the first article I wrote about Stewart, the government seems to be conducting an all-out assault on the right to counsel.
Defense attorneys who represent alleged terrorists - or even detainees who are merely suspected of some connection to terrorism -- now know that the government may listen in on their attorney-client communications. They also know that this eavesdropping may give rise to evidence that may be used in their own prosecution for terrorism if they cross the imaginary line drawn by the government.
How can these attorneys be zealous advocates with this government-inspired fear overshadowing their every word?
If the attorneys are prosecuted, they can expect, at trial, to be conflated with their clients - just as Stewart was. The prosecution showed an old tape of Osama bin Laden promising revenge if Rahman were not released. In a courtroom only a short distance from Ground Zero, the tape must have meant a great deal. But it related to Rahman, not Stewart. Though Rahman may be a Bin Laden confederate, that does not mean his attorney is.
The larger issue here is not whether Stewart "stepped over the line" from lawyer to criminal co-conspirator, as the jury verdict implies. Nor is it whether terrorism fears caused the jury to reach an irrational verdict - as may well be the case. The larger issue is that those who face terrorism-related charges will now be entitled to a government-crippled defense.
The Ashcroft Justice Department showed disdain for attorneys--save its own. Unfortunately, the Gonzales Justice Department likely will be even worse on this score. Referring to the Stewart verdict, Gonzales was quick to warn that he would "pursue both those who carry out acts of terrorism and those who assist them with their murderous goals." (Emphasis added.)
This is pure hyperbole - treating Stewart's willingness to assist her client in putting out a press release as the moral equivalent of financing or arming terrorists. It furthers the lie that a terrorist's lawyer, by zealously representing her client, at the same time aids and abets terrorism.
Hundreds of prisoners alleged to be terrorist combatants sit in cages and cells in Guantanamo Bay, Cuba. Every one, according to the Supreme Court, has the right to challenge his detention in federal court, through the ancient writ of habeas corpus.
What attorneys will risk their licenses --and life in prison --in order to protect their rights?
Elaine Cassel practices law in Virginia and the District of Columbia and teaches law and psychology. She is the author of The War on Civil Liberties: How Bush and Ashcroft Dismantled the Bill of Rights (Lawrence Hill Books 2004). She maintains a web site devoted to civil liberties issues, Civil Liberties Watch.
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Fact Sheet: Prosecuting and Detaining Terror Suspects
http://www.usdoj.gov/opa/pr/2009/June/09-ag-564.html
FOR IMMEDIATE RELEASE
Tuesday, June 9, 2009
WWW.USDOJ.GOV
AG
(202) 514-2007
TDD (202) 514-1888
Fact Sheet: Prosecuting and Detaining Terror Suspects in the U.S. Criminal
Justice System
I. Terror Prosecutions in the Southern District of New York
Since the 1990s, the U.S. Attorney’s Office for the Southern District of New York (SDNY) has investigated
and successfully prosecuted a wide range of international and domestic terrorism cases — including the
bombings of the World Trade Center and U.S. Embassies in East Africa in the 1990s. More recent cases include
those against individuals who provided material support to al-Qaeda and other terrorist groups, as well as against
international arms trafficker Monzer al Kassar and the Somalian pirate charged in the hijacking of the Maersk
Alabama.
Major Historical Cases in SDNY:
1993 World Trade Center Bombing: After two trials, in 1993 and 1997, six defendants were convicted and
sentenced principally to life in prison for detonating a truck bomb in the garage of the World Trade Center, killing
six people and injuring hundreds more. One of the defendants convicted at the second trial was Ramzi Yousef,
the mastermind of the attack.
1994-95 Manila Air Plot: Ramzi Yousef and two others were convicted in 1996 for plotting to plant bombs
aboard a dozen U.S. commercial aircraft that were timed to go off as the planes were flying over the Pacific. The
defendants were sentenced to substantial prison terms. Yousef concocted the plan with Khalid Sheikh
Mohammed, who is currently detained at Guantanamo Bay and has been indicted in SDNY for the Manila Air
conspiracy since 1996.
1995 "Blind Sheikh" Trial: Ten defendants associated with a mosque in Brooklyn, N.Y., were convicted of
plotting to blow up the World Trade Center, United Nations headquarters, and various bridges, tunnels and
landmarks in and around New York City. The lead defendant, Omar Abdel Rahman, also known as the "Blind
Sheikh," was sentenced to life in prison, while his co-defendants were sentenced to prison terms ranging between
life and 25 years.
Bin Laden Indictment and Embassy Bombings Trial: Shortly after the August 1998 bombings of the U.S.
Embassies in Kenya and Tanzania, SDNY indicted Usama Bin Laden and approximately 20 alleged al-Qaeda
loyalists for conspiring to murder Americans worldwide. Many of the defendants were also charged for their roles
in the attacks on the U.S. Embassies in East Africa, including three defendants who were convicted after a
six-month trial in early 2001. Those three defendants, and a fourth al-Qaeda member who was tried with them,
were all sentenced to life in prison.
Recent Cases in SDNY:
James Cromitie et al.: On May 20, 2009, four individuals -- James Cromitie, David Williams, Onta Williams
and Laguerre Payen -- were arrested on charges arising from a plot to detonate explosives near a synagogue in
the Bronx, N.Y., and to shoot Stinger surface-to-air guided missiles at military planes located at a the National
Guard Base at Stewart Airport in Newburgh, N.Y. On June 2, 2009, all four defendants were charged in an
eight-count indictment and face potential life in prison, if convicted.*
Oussama Kassir: On May 12, 2009, Oussama Kassir was convicted of charges related to his participation inan effort to establish a jihad training camp in Oregon and his operation of several terrorist Web sites containing instructions about how to make bombs and poisons. Kassir was found guilty of all 11 charges against him,
including providing material support to al-Qaeda and distributing information on explosives and weapons of mass
destruction.
Abduwali Abdukhadir Muse: On April 21, 2009, accused Somalian pirate Abduwali Abdukhadir Muse was
transported to the SDNY to face criminal charges stemming from his alleged participation in the April 8, 2009,
hijacking of the Maersk Alabama container ship in the Indian Ocean. Muse is charged in a 10-count indictment
and faces a mandatory life sentence, if convicted.*
U.S. v. Viktor Bout: On April 9, 2008, international arms dealer Viktor Bout was arrested by Thai authorities
on a provisional arrest warrant based on an SDNY complaint, which charged conspiracy to provide material
support to a designated foreign terrorist organization. Bout was later indicted for, among other things, conspiring
to sell millions of dollars worth of weapons to the Fuerzas Armadas Revolucionarias de Colombia (FARC) to be
used to kill Americans in Colombia. Bout has been in custody in Thailand since March 6, 2008, pending an
extradition request by the United States.*
Monzer al Kassar et. al.: On Nov. 20, 2008, international arms trafficker Monzer al Kassar and a
co-defendant were convicted after a three-week jury trial of all charges — including conspiracy to murder U.S.
nationals; conspiracy to murder U.S. officers; conspiracy to acquire and export anti-aircraft missiles; and
conspiracy to provide material support and resources to the FARC, a designated foreign terrorist organization —
for conspiring to sell millions of dollars worth of high-powered weapons to the FARC to be used to kill Americans
in Colombia. Al Kassar, who had been extradited on these charges from Spain, and the co-defendant, who had
been extradited from Romania (the first ever to the United States on terrorism charges), were sentenced to 30
and 25 years in prison, respectively. Another co-defendant, who was also extradited from Romania, was found
guilty on similar charges, and awaits sentencing.
II. Terror Prosecutions Nationwide
Nationwide, the Justice Department and its U.S. Attorney’s offices have prosecuted many terrorism cases in
recent months and years . Last year, Human Rights First published a comprehensive study on prosecuting
terrorism in federal court from 9/11 through the end of 2007. The study, entitled: "In Pursuit of Justice:Prosecuting Terrorism Cases in the Federal Court," found that federal prosecutors achieved a conviction rate of
more than 90 percent in the set of terrorism cases examined by the report’s authors. The study examined a
specific set of 257 defendants charged with terrorism related violations in the United States between 9/11 and
the end of 2007. Of the 160 defendants from this group who had their cases resolved, 145 were convicted of at
least one count, either by a verdict of guilty after trial or by a guilty plea.
Recent Cases:
Since Jan. 1, 2009, more than 30 individuals charged with terrorism violations have been successfully
prosecuted and/or sentenced in federal courts nationwide, including the following:
Five Sentenced in Terror Finance Case: (Northern District of Texas) – On May 27, 2009, five leaders of the
Holy Land Foundation, once the largest Muslim charity in the United States, were sentenced for their role in
funneling more than $12 million to the Hamas terror organization. Shukri Abu Baker and Ghassan Elashi were
each sentenced to 65 years in prison. Mufid Abdulqader was sentenced to 20 years in prison, while Mohammed
El Mezain and Abdulrahman Odeh were each sentenced to 15 years in prison.
Mohammed Warsame: (District of Minnesota) – On May 20, 2009, Mohammed Warsame pleaded guilty to
conspiracy to provide material support to al-Qaeda, admitting that he attended al-Qaeda training camps, sent
money from Canada to one of his former training camp commanders and continued to exchange messages with
individuals associated with al-Qaeda once in Minnesota.
Ali al-Marri: (Central District of Illinois) – On April 30, 2009, Ali al-Marri pleaded guilty to conspiracy to
provide material support to al-Qaeda, admitting that he attended terrorist training camps, learned al-Qaeda
tradecraft and was dispatched by al-Qaeda to carry out its terrorist objectives in America.
Five Sentenced in Fort Dix Terror Plot: (District of New Jersey) – On April 28, 29, 2009, five individuals --
Mohamad Ibrahim Shnewer, brothers Dritan Duka, Shain Duka and Eljvir Duka and Serdar Tatar -- received sentences ranging from 33 years in prison, to life in prison plus 30 years, for plotting to kill U.S. soldiers in an armed attack on the military base in Fort Dix, New Jersey. All five individuals were convicted at trial in December
2008.
Seven Plead Guilty in MEK Terror Case: (Central District of California) – On April 28, 2009, seven
individuals – Roya Rahmani, Alireza Mohammadmoradi, Moustafa Ahmady, Hossein Afshari, Hassan Rezaie,
Navid Taj and Mohammad Omidvar -- who were engaged in fundraising activities on behalf of the Mujahedine-
Khalq (MEK), a designated foreign terrorist organization, pleaded guilty to federal charges of providing material
support to terrorists.
Wesam al-Delaema: (District of Columbia) -- On April 16, 2009, Wesam al-Delaema was sentenced to 25
years in prison for conspiring to murder Americans overseas, including by planting roadside bombs targeting U.S.
soldiers in Iraq and by demonstrating on video how these explosives would be detonated to destroy American
vehicles. He pleaded guilty on Feb. 25, 2009.
Christopher Paul: (Southern District of Ohio) -- On Feb. 26, 2009, Christopher Paul was sentenced to 20
years in prison for conspiring to use explosives against targets in Europe and the United States. Paul joined
al-Qaeda in the early 1990s, fought in Afghanistan and Bosnia and conspired with others to target Americans both
at home and abroad.
Four Plead Guilty in LTTE Prosecution: (Eastern District of New York) -- On Jan. 27, 2009, four defendants
-- Thiruthanikan Thanigasalam, Sahilal Sabaratnam, Sathajhan Sarachandran and Yogarasa Nadarasa -- pleaded
guilty to terrorism violations in connection with their efforts to acquire surface-to-air missiles, missile launchers
and hundreds of assault rifles for the Liberation Tigers of Tamil Eelam (LTTE), a designated terrorist organization.
Two Plead Guilty in Plot to Murder U.S. Soldiers: (Northern District of Ohio) -- On Jan. 15, 2009, Zubair
Ahmed and Khaleel Ahmed pleaded guilty to conspiracy to provide material support to terrorists in connection with
their efforts to travel abroad in order to murder or maim U.S. military forces in Iraq or Afghanistan.
III. Detaining Terror Inmates in Federal Prisons
International Terror Inmates
There are currently 216 inmates in Bureau of Prisons (BOP) custody who have a history of/or nexus to
international terrorism. Sixty seven of these individuals were extradited to the United States for prosecution, while
149 were not extradited. Seventy two of these individuals are U.S. citizens (45 of them born in the United States,
27 of them naturalized). The "Supermax" facility in Florence, Colo. (ADX Florence), which is BOP’s most secure
facility, houses 33 of these international terrorists. There has never been an escape from ADX Florence, and
BOP has housed some of these international terrorists since the early 1990s. In addition to the ADX Florence,
the BOP houses such individuals in the Communications Management Units at Terre Haute, Ind., and Marion, Ill.,
as well as in other facilities among different institutions around the country.
Among those convicted international terrorists currently serving sentences in BOP facilities are:
Sheikh Omar Abdel-Rahman, convicted of the 1993 World Trade Center bombing
Ramzi Yousef, convicted of the 1993 World Trade Center bombing
Ahmed Ressam, the Millenium Bomber
Wadih el-Hage, convicted of the 1998 U.S. Embassy bombings in Africa
Richard Reid, convicted of attempting to ignite a shoe bomb while on a flight from Paris to Miami carrying
184 passengers and 14 crewmembers
Ahmed Omar Abu Ali, convicted of plotting to assassinate the U.S. President as well as attack and destroy
civilian airliners
Zacarias Moussaoui, convicted of conspiring with al-Qaeda to hijack and crash planes into prominent U.S.
buildings as part of the 9/11 attacks
Domestic Terror Inmates
In addition to those inmates with an international terrorism history or nexus, there are approximately 139
individuals in BOP custody who have a history of/or nexus to domestic terrorism. These individuals include:
Theodore Kaczynski, the Unabomber
Terry Nichols, convicted accomplice of Timothy McVeigh in the 1995 Oklahoma City bombing
Special Administrative Measures
Under the law, the Attorney General may direct the BOP to initiate Special Administrative Measures (SAMs)
with respect to a particular inmate (including those being held pre-trial or during trial) when there is a substantial
risk that a prisoner'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.
Generally, these measures can be initiated to prevent acts of terrorism, acts of violence, or the disclosure of
classified information.
SAMs are specific to a particular inmate. The special administrative measures may include housing the
inmate in administrative detention and/or limiting certain privileges, including, but not limited to, correspondence,
visiting, and other communications, as is reasonably necessary to protect persons against the risk of acts of
violence or terrorism, while still maintaining the inmate’s attorney/client privilege. The SAMs authorization
automatically expires after one year, unless renewed or vacated.
As of May 22, 2009, there were 44 inmates subject to SAMs, out of a total federal inmate population of
more than 205,000.
Of the 44 inmates subject to SAMs, 29 were incarcerated on terrorism-related charges, while 11 were
incarcerated on violent crime-related charges (gangs, organized crime, etc.), and four were incarcerated on
espionage charges.
*The public is reminded that charges contained in an indictment or criminal complaint are mere allegations,
and that defendants are presumed innocent unless and until proven guilty.
###
09-564
[Federal Register: April 4,
[Federal Register: April 4, 2007 (Volume 72, Number 64)]
[Rules and Regulations]
[Page 16271-16275]
=======================================================================
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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.
-----------------------------------------------------------------------
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]
BILLING CODE 4410-05-P
DOJ Oversight: Preserving Our Freedoms While Defending Against T
http://judiciary.senate.gov/hearings/hearing.cfm?id=128
“DOJ Oversight: Preserving Our Freedoms While Defending Against Terrorism”
Senate Judiciary Committee
Full Committee
DATE: December 4, 2001
TIME: 02:00 PM
ROOM: SD-226
OFFICIAL HEARING NOTICE / WITNESS LIST:
NOTICE OF FULL COMMITTEE HEARING TIME CHANGE
The Senate Committee on the Judiciary will hold a hearing on Tuesday, December 4, 2001 at 2:00 p.m., rather than at10:00 a.m., in Room 226 of the Senate Dirksen Office Building on "DOJ Oversight: Preserving Our Freedoms While Defending Against Terrorism."
Senator Feingold will preside.
By order of the Chairman
---------------------
Witness List
Hearing before the Senate Committee on the Judiciary
on
"DOJ Oversight: Preserving Our Freedoms
While Defending Against Terrorism"
Tuesday, December 4, 2001
2:00 p.m., SD 226
Panel I
Viet D. Dinh
Assistant Attorney General, Office of Legal Policy
U.S. Department of Justice
Panel II
Ali Al-Maqtari
New Haven, CT
Michael J. Boyle, Esq.
Law Offices of Michael J. Boyle
North Haven, CT
Steven Emerson
The Investigative Project
Washington, DC
Gerald H. Goldstein, Esq.
Goldstein, Goldstein & Hilley
San Antonio, TX
Nadine Strossen
President, American Civil Liberties Union
Professor, New York Law School
New York, NY
Victoria Toensing, Esq.
DiGenova & Toensing
Washington, DC
I wonder...
if the SAMs enacted in 1996 had anything to do with the McVeigh case (see chronology here: http://www.law.umkc.edu/faculty/projects/Ftrials/mcveigh/mcveighchrono.h...