FC: Three DOJ documents: Wiretapping, searches, computer seizures

From: Declan McCullagh (declanat_private)
Date: Mon Nov 12 2001 - 09:42:56 PST

  • Next message: Declan McCullagh: "FC: Eurekistan, a "pious playground" for Taliban fighters (satire)"

    [The first manual is from January 2001, but worth reviewing. The second two 
    documents -- USA PATRIOT Act powers and attorney-client wiretapping -- are 
    post-Sep-11. --DBM]
    
    ---
    
    "Searching and Seizing Computers and Obtaining Electronic Evidence in 
    Criminal Investigations"
    http://www.cybercrime.gov/searchmanual.htm
    Summary:
    http://www.wired.com/news/politics/0,1283,41133,00.html
    
    ---
    
    >DOJ Issues Guidance on New Surveillance Powers
    >Within hours of the USA PATRIOT Act being signed into law, the Justice 
    >Department issued a field guidance memorandum (PDF) on
    >the new anti-terrorism authorities approved by Congress.
    >The memorandum does not address expanded powers under the
    >Foreign Intelligence Surveillance Act; guidance in that
    >area appears to be classified. Attorney General John
    >Ashcroft announced that he has directed FBI and U.S. Attorney's offices 
    >"to begin immediately implementing this sweeping legislation."
    >http://www.epic.org/privacy/terrorism/DOJ_guidance.pdf
    
    ---
    
    http://www.nacdl.org/public.nsf/freeform/BOPreg_02?OpenDocument
    
    [Federal Register: October 31, 2001 (Volume 66, Number 211)]
    [Rules and Regulations] [Page 55061-55066] From the Federal
    Register Online via GPO Access [<wais.access.gpo.gov>]
    [DOCID:fr31oc01-20]
    
    [[Page 55061]]
    
    ------------------------------------------------------------
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    Part IV
    
    Department of Justice
    
    ------------------------------------------------------------
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    Bureau of Prisons
    
    ------------------------------------------------------------
    -----------
    
    28 CFR Parts 500 and 501
    
    National Security; Prevention of Acts of Violence and
    Terrorism; Final Rule
    
    [[Page 55062]]
    
    ------------------------------------------------------------
    -----------
    
    DEPARTMENT OF JUSTICE
    
    Bureau of Prisons
    
    28 CFR Parts 500 and 501
    
    [BOP-1116; AG Order No. 2529-2001] RIN 1120-AB08
    
    National Security; Prevention of Acts of Violence and
    Terrorism
    
    AGENCY: Bureau of Prisons, Department of Justice.
    
    ACTION: Interim rule with request for comment.
    
    ------------------------------------------------------------
    -----------
    
    SUMMARY: The current regulations of the Bureau of Prisons on
    institutional management authorize the Bureau to impose
    special administrative measures with respect to specified
    inmates, based on information provided by senior
    intelligence or law enforcement officials, where it has been
    determined to be necessary to prevent the dissemination
    either of classified information that could endanger the
    national security or of other information that could lead to
    acts of violence and terrorism. This rule extends the period
    of time for which such special administrative measures may
    be imposed from 120 days to up to one year, and modifies the
    standards for approving extensions of such special
    administrative measures. In addition, in those cases where
    the Attorney General has certified that reasonable suspicion
    exists to believe that an inmate may use communications with
    attorneys or their agents to further or facilitate acts of
    violence or terrorism, this rule amends the existing
    regulations to provide that the Bureau is authorized to
    monitor mail or communications with attorneys in order to
    deter such acts, subject to specific procedural safeguards,
    to the extent permitted under the Constitution and laws of
    the United States. Finally, this rule provides 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: October 30, 2001. Comment date:
    Written comments must be submitted on or before December 31,
    2001.
    
    ADDRESSES: Rules Unit, Office of the General Counsel, Bureau
    of Prisons, HOLC Room 754, 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: On June 20, 1997 (62 FR 33732),
    the Bureau of Prisons (``Bureau'') finalized its interim
    regulations on the correctional management of inmates whose
    contacts with other persons present the potential for
    disclosure of classified information that could endanger
    national security or of other information that could lead to
    acts of violence or terrorism. These rules are codified at
    28 CFR 501.2 (national security) and 501.3 (violence and
    terrorism). The Bureau previously had published an interim
    rule on preventing the disclosure of classified information
    in the Federal Register on October 13, 1995 (60 FR 53490).
    No public comment was received, and the 1997 final rule
    adopted the 1995 interim rule with only minor changes. In
    general, Sec. 501.2 authorizes the Director of the Bureau of
    Prisons to impose special administrative measures with
    respect to a particular inmate that are reasonably necessary
    to prevent disclosure of classified information, upon a
    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 administrative
    detention and/or limiting certain privileges, including, but
    not limited to, 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 Bureau also had previously
    published a separate interim rule on preventing acts of
    violence and terrorism on May 17, 1996 (61 FR 25120). The
    Bureau's 1997 final rule responded at length to the public
    comments received on the 1996 interim rule. Section 501.3
    authorizes the imposition of similar special administrative
    measures on a particular inmate based on a written
    determination by the Attorney General or, at the Attorney
    General's discretion, 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. In either
    case, the affected inmate may seek review of any special
    administrative measures imposed pursuant to Secs. 501.2 or
    501.3 in accordance with paragraph (a) of this section
    through the Administrative Remedy Program, 28 CFR part 542.
    Both rules limit the initial period of special
    administrative measures to 120 days, and provide that
    additional 120-day periods may be authorized based on a
    certification or notification that the circumstances
    identified in the original notification continue to exist.
    
    Changes to Sec. 501.2 With Respect to National Security
    
    This rule makes no change in the substantive standards for
    the imposition of special administrative measures, but
    changes 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. Where the head of an intelligence
    agency has certified to the Attorney General that there is a
    danger that the inmate will disclose classified information
    posing a threat to the national security, there is no
    logical reason to suppose that the threat to the national
    security will dissipate after 120 days. This rule allows the
    Director to designate a longer period of time, up to one
    year, in order to protect the national security. The rule
    also allows for 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. This will ensure a continuing review
    by the Director and the intelligence community of the need
    for the special administrative measures in light of the
    ongoing risks to the national security. Given the serious
    nature of the danger to the national security, as determined
    by the head of the intelligence agency, this approach
    reflects an appropriate balancing of the interests of the
    individual inmates and of the public interest in protecting
    against the disclosure of such national security
    information. In addition, this rule modifies the standard
    for approving extensions of the special administrative
    measures. The existing regulation requires that the head of
    the intelligence agency certify that ``the circumstances
    identified in the original certification continue to
    exist.'' This standard, however, is unnecessarily static, as
    it might be read to suggest that the subsequent
    certifications are limited to a reevaluation of the original
    grounds. Instead, this rule provides that the subsequent
    certifications by the head of an intelligence agency may be
    based on
    
    [[Page 55063]]
    
    any information available to the intelligence agency.
    
    Changes to Sec. 501.3 With Respect to Prevention of Acts of
    Violence and Terrorism
    
    This rule makes no change in the substantive standards for
    the implementation of special administrative measures under
    Sec. 501.3(a). The rule also retains the existing authority
    of the Director to extend the imposition of the special
    administrative measures for additional periods, based on
    subsequent certifications from the Attorney General or the
    head of a federal law enforcement or intelligence agency. By
    continuing to apply the existing standards under Sec.
    501.3(a), this rule preserves the balance struck in the 1997
    final rule and ensures that the inmate's circumstances will
    be subject to a continuing review. However, this rule also
    recognizes that the threats of violence or terrorism posed
    by an inmate's communications or contacts with his or her
    associates, whether those other persons are within the
    detention facility or in the community at large, may in many
    cases be manifested on a continuing basis, such that the
    periods for special administrative measures need not be
    limited to 120 days. Accordingly, this 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 or terrorism. In addition, the rule provides
    authority for the Director under certain circumstances to
    provide for extensions of the period for the special
    administrative measures for additional periods, up to one
    year. This rule also modifies the standard for approving
    extensions of the special administrative measures. The
    existing regulation requires that the Attorney General or
    the head of the federal law enforcement or intelligence
    agency determine that ``the circumstances identified in the
    original notification continue to exist.'' Again, that
    standard is unnecessarily static, as it might be read to
    suggest that the subsequent determinations are limited to a
    reevaluation of the original grounds. Recent incidents of
    terrorism and violence demonstrate, without question, that
    some criminal conspiracies develop and are carried out over
    a long period--far in excess of 120 days. During that time,
    as the plans may change or develop, there may be changes in
    the level of activity directed toward that conspiracy over
    time by the various participants. The level of participation
    by a particular inmate in the planning or orchestration of a
    terrorist or violent criminal conspiracy may vary over time.
    The existing regulation fails to recognize that an inmate
    still may be an integral part of an ongoing conspiracy even
    though his or her activity may change over time--or, indeed,
    possibly even be dormant for limited periods of time. Those
    changes in an inmate's role over time, however, would not
    alter the significance of the inmate's role in planning acts
    of terrorism or violence and do not diminish the urgent need
    for law enforcement authorities to curb the inmate's ability
    to participate in planning or facilitating those acts
    through communications with others within or outside the
    detention facility. The phraseology of the existing rule
    also may raise questions about the relevance of more
    recently acquired information. For these reasons, it would
    not be appropriate to require a factual determination, in
    effect, that ``nothing has changed'' with respect to the
    initial determination. Accordingly, this 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, previously has 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. With these changes, Sec. 501.3 will still
    ensure a continuing, periodic review by the Director and the
    law enforcement and intelligence communities of the need for
    the special administrative measures in light of the ongoing
    risks of terrorism or violent crime. Given the serious
    nature of the danger to the public arising from such
    incidents, coupled with a determination by the Attorney
    General or the head of a federal law enforcement or
    intelligence agency regarding the danger posed by each
    particular inmate, this approach reflects an appropriate
    balancing of the interests of the individual inmates and of
    the public interest in detecting and deterring acts of
    terrorism and violence. Although this rule does not alter
    the substantive standards for the initial imposition of
    special administrative measures under Sec. 501.3, it is
    worth noting that 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, 823 (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.'' 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 the risks
    of terrorism and 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
    prevention of acts of violence and 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.
    
    Monitoring of Communications With Attorneys To Deter Acts of
    Terrorism
    
    In general, the Bureau's existing regulations relating to
    special mail (Secs. 540.18, 540.19), visits (Sec. 540.48),
    and telephone calls (Sec. 540.103) contemplate that
    communications between an inmate and his or her attorney are
    not subject to the usual rules for monitoring of inmate
    communications. In specific instances, however, based on
    information from federal law
    
    [[Page 55064]]
    
    enforcement or intelligence agencies, the Bureau may have
    substantial reason to believe that certain inmates who have
    been involved in terrorist activities will pass messages
    through their attorneys (or the attorney's legal assistant
    or an interpreter) to individuals on the outside for the
    purpose of continuing terrorist activities. The existing
    regulations, of course, recognize the existence of the
    attorney-client privilege and an inmate's right to counsel.
    However, it also is clear that not all communications
    between an inmate and an attorney would fall within the
    scope of that privilege. For example, materials provided to
    an attorney that do not relate to the seeking or providing
    of legal advice are not within the attorney-client
    privilege. Accordingly, such materials would not qualify as
    special mail under the Bureau's regulations. The
    attorney-client privilege protects confidential
    communications regarding legal matters, but the law is clear
    that there is no protection for communications that are in
    furtherance of the client's ongoing or contemplated illegal
    acts. Clark v. United States, 289 U.S. 1, 15 (1933) (such a
    client ``will have no help from the law''); United States v.
    Gordon-Nikkar, 518 F. 2d 972, 975 (5th Cir. 1975) (``it is
    beyond dispute that the attorney-client privilege does not
    extend to communications regarding an intended crime''). The
    crime/fraud exception to the attorney-client privilege
    applies even if the attorney is unaware that his
    professional service is being sought in furtherance of an
    improper purpose, United States v. Soudan, 812 F.2d 920, 927
    (5th Cir. 1986), and the attorney takes no action to assist
    the client, In re Grand Jury Proceedings, 87 F. 3d 377, 382
    (9th Cir. 1996). This rule provides specific authority for
    the monitoring of communications between an inmate and his
    or her attorneys or their agents, where there has been a
    specific determination that such actions are reasonably
    necessary in order to deter future acts of violence or
    terrorism, and upon a specific notification to the inmate
    and the attorneys involved. The rule provides for (1)
    protection of the inmate's right to counsel; (2) the use of
    a special ``privilege team'' to contemporaneously monitor an
    inmate's communications with counsel, pursuant to
    established firewall procedures, when there is a sufficient
    justification of need to deter future acts of violence or
    terrorism; (3) a procedure for federal court approval prior
    to the release or dissemination of information gleaned by
    the privilege team while monitoring the inmate's
    communications with counsel; and (4) an emergency procedure
    for immediate dissemination of information pertaining to
    future acts of violence or terrorism where those acts are
    determined to be imminent. The Supreme Court has held that
    the presence of a government informant during conversations
    between a defendant and his or her attorney may, but need
    not, impair the defendant's Sixth Amendment right to
    effective assistance of counsel. See Weatherford v. Bursey,
    429 U.S. 545, 552-54 (1977). When the government possesses a
    legitimate law enforcement interest in monitoring such
    conversations, cf. Massiah v. United States, 377 U.S. 201,
    207 (1964), 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 the defendant of a fair
    trial. The procedures established in this new rule are
    designed to ensure that defendants' Sixth Amendment rights
    are scrupulously protected. The circumstances in which
    monitoring will be permitted are defined narrowly and in a
    way that reflects a very important law enforcement interest:
    the prevention of acts of violence or terrorism. The
    monitoring is not surreptitious; on the contrary, the
    defendant and his or her attorney are required to be given
    notice of the government's listening activities. The rule
    requires that privileged information not be retained by the
    government monitors and that, apart from disclosures
    necessary to thwart an imminent act of violence or
    terrorism, any disclosures to investigators or prosecutors
    must be approved by a federal judge. In following these
    procedures, 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. Procedures such as this have
    been approved in matters such as searches of law offices,
    See, e.g., National City Trading Corp. v. United States, 635
    F.2d 1020, 1026-27 (2d Cir. 1980). In a similar vein,
    screening procedures are used in wiretap surveillance. See,
    e.g., United States v. Noriega, 764 F. Supp. 1480 (S.D. Fla.
    1991) (DEA agent unrelated to the case reviewed prison
    telephone tapes to determine whether they contained any
    privileged attorney-client communications; agent mistakenly
    reduced one such communication to memorandum form, but the
    assigned prosecutor stopped reading the memo once he
    realized it contained attorney-client conversation; the
    court cited the screening procedure as a factor in finding
    that the government's intrusion into the defense camp was
    unintentional, and that the intrusion had not benefitted the
    government). Likewise, firewalls have been built so that an
    entire prosecution office is not disqualified when a lawyer
    who formerly represented or had a connection to a defendant
    joins the prosecutor's office but has no involvement in his
    former client's prosecution. See Blair v. Armontrout, 916
    F.2d 1310, 1333 (8th Cir. 1990). 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 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 or terrorism, the government has
    a responsibility to take reasonable and lawful precautions
    to safeguard the public from those acts.
    
    Applicability to All Persons in Custody Under the Authority
    of the Attorney General
    
    The existing Secs. 501.2 and 501.3 cover only inmates in the
    custody of the Bureau of Prisons. However, there are
    instances when a person is held in the custody of other
    officials under the authority of the Attorney General (for
    example, the Director of the United States Marshals Service
    or the Commissioner of the Immigration and Naturalization
    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. We are also clarifying the
    definition of ``inmate'' to avoid any question whether these
    regulations apply to all persons in BOP custody.
    
    Administrative Procedure Act, 5 <U.S.C>. 553
    
    The Department's implementation of this rule as an interim
    rule, with provision for post-promulgation public comment,
    is based on the foreign affairs exception, 5 <U.S.C>.
    553(a), and upon
    
    [[Page 55065]]
    
    findings of good cause pursuant to 5 <U.S.C>. 553(b)(B) and
    (d). The immediate implementation of this interim rule
    without public comment is necessary to ensure that the
    Department is able to respond to current intelligence and
    law enforcement concerns relating to threats to the national
    security or risks of terrorism or violent crimes that may
    arise through the ability of particular inmates to
    communicate with other persons. Recent terrorist activities
    perpetrated on United States soil demonstrate the need for
    continuing vigilance in addressing the terrorism and
    security-related concerns identified by the law enforcement
    and intelligence communities. It is imperative that the
    Department have the immediate ability to impose special
    administrative measures, and to continue those measures over
    time, with respect to persons in its custody who may
    wrongfully disclose classified information that could pose a
    threat to national security or who may be planning or
    facilitating terrorist acts. In view of the immediacy of the
    dangers to the public, the need for detecting and deterring
    communications from inmates that may facilitate acts of
    violence or terrorism, and the small portion of the inmate
    population likely to be affected, the Department has
    determined that there is good cause to publish this interim
    rule and to make it effective upon publication, because the
    delays inherent in the regular notice-and-comment process
    would be ``impracticable, unnecessary and contrary to the
    public interest.'' 5 <U.S.C>. 553(b)(B), (d). Application of
    these measures is likely to affect only a small portion of
    the inmate population: those inmates who have been certified
    by the head of a United States intelligence agency as posing
    a threat to the national security through the possible
    disclosure of classified information; or for whom the
    Attorney General or the head of a federal law enforcement or
    intelligence agency has determined that there is a
    substantial risk that the inmate's communications with
    others could lead to violence or terrorism.
    
    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. 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.
    
    Accordingly, pursuant to the rulemaking authority vested in
    the Attorney General in 5 <U.S.C>. 552(a), part 501 in
    subchapter A of 28 CFR, chapter V is amended as set forth
    below:
    
    SUBCHAPTER A--GENERAL MANAGEMENT AND ADMINISTRATION
    
    PART 500--GENERAL DEFINITIONS
    
    1. The authority citation for 28 CFR part 500 continues to
    read as follows:
    
    Authority: 5 <U.S.C>. 301; 18 <U.S.C>. 3621, 3622, 3624,
    4001, 4042, 4081, 4082 (Repealed in part as to offenses
    committed on or after November 1, 1987), 5006-5024 (Repealed
    October 12, 1984 as to offenses committed after that date),
    5039; 28 <U.S.C>. 509, 510; 28 CFR 0.95-0.99.
    
    2. In Sec. 500.1, paragraph (c) is revised to read as
    follows:
    
    Sec. 500.1 Definitions.
    
    * * * * * (c) Inmate means all persons in the custody of the
    Federal Bureau of Prisons or Bureau contract facilities,
    including persons charged with or convicted of offenses
    against the United States; D.C. Code felony offenders; and
    persons held as witnesses, detainees, or otherwise. * * * *
    *
    
    PART 501--SCOPE OF RULES
    
    3. The authority citation for 28 CFR part 501 continues to
    read as follows:
    
    Authority: 5 <U.S.C>. 301; 18 <U.S.C>. 3621, 3622, 3624,
    4001, 4042, 4081, 4082 (Repealed in part as to offenses
    committed on or after November 1, 1987), 4161-4166 (Repealed
    as to offenses committed on or after November 1, 1987),
    5006-5024 (Repealed October 12, 1984 as to offenses
    committed after that date), 5039; 28 <U.S.C>. 509, 510; 28
    CFR 0.95-0.99.
    
    4. In Sec. 501.2, paragraph (c) is revised and paragraph (e)
    is added, to read as follows:
    
    Sec. 501.2 National security cases.
    
    * * * * * (c) Initial placement of an inmate in
    administrative detention and/ or any limitation of the
    inmate's privileges in accordance with paragraph (a) of this
    section may be imposed for a period of time as determined by
    the Director, Bureau of Prisons, up to one year. Special
    restrictions imposed in accordance with paragraph (a) of
    this section may be extended thereafter by the Director,
    Bureau of Prisons, in increments not to exceed one year, but
    only if the Attorney General receives from the head of a
    member agency of the United States intelligence community an
    additional written certification that, based on the
    information available to the agency, there is a danger that
    the inmate will disclose classified information and that the
    unauthorized disclosure of such information would pose a
    threat to the national security. The authority of the
    Director under this paragraph may not be delegated below the
    level of Acting Director. * * * * * (e) Other appropriate
    officials of the Department of Justice having custody of
    persons for whom special administrative measures are
    required may exercise the same authorities under this
    section as the Director of the Bureau of Prisons and the
    Warden. 4. In Sec. 501.3, a. Paragraph (c) is revised; b.
    Paragraph (d) is redesignated as paragraph (e); and c. New
    paragraphs (d) and (f) are added to read as follows:
    
    Sec. 501.3 Prevention of acts of violence and terrorism.
    
    * * * * * (c) Initial placement of an inmate in
    administrative detention and/ or any limitation of the
    inmate's privileges in accordance with paragraph (a) of this
    section may be imposed for up to 120 days or, with the
    approval of the Attorney General, a longer period of time
    not to exceed one year. Special restrictions imposed in
    accordance with paragraph (a) of this section may be
    extended thereafter by the Director, Bureau of Prisons, in
    increments not to exceed one year, upon receipt by the
    Director of an additional written notification from the
    Attorney General, or, at the Attorney General's direction,
    from the head of a federal law enforcement agency or the
    head of a member agency of the United States intelligence
    community, that there
    
    [[Page 55066]]
    
    continues to be a substantial risk that the 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 authority of the
    Director under this paragraph may not be delegated below the
    level of Acting Director. (d) In any case where the Attorney
    General specifically so orders, based on information from
    the head of a federal law enforcement or intelligence agency
    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, the
    Director, Bureau of Prisons, shall, in addition to the
    special administrative measures imposed under paragraph (a)
    of this section, provide appropriate procedures for the
    monitoring or review of communications between that inmate
    and attorneys or attorneys' agents who are traditionally
    covered by the attorney-client privilege, for the purpose of
    deterring future acts that 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. (1) The certification by the Attorney General
    under this paragraph (d) shall be in addition to any
    findings or determinations relating to the need for the
    imposition of other special administrative measures as
    provided in paragraph (a) of this section, but may be
    incorporated into the same document. (2) Except in the case
    of prior court authorization, the Director, Bureau of
    Prisons, shall provide written notice to the inmate and to
    the attorneys involved, prior to the initiation of any
    monitoring or review under this paragraph (d). The notice
    shall explain: (i) That, notwithstanding the provisions of
    part 540 of this chapter or other rules, all communications
    between the inmate and attorneys may be monitored, to the
    extent determined to be reasonably necessary for the purpose
    of deterring future acts of violence or terrorism; (ii) That
    communications between the inmate and attorneys or their
    agents are not protected by the attorney-client privilege if
    they would facilitate criminal acts or a conspiracy to
    commit criminal acts, or if those communications are not
    related to the seeking or providing of legal advice. (3) The
    Director, Bureau of Prisons, with the approval of the
    Assistant Attorney General for the Criminal Division, shall
    employ appropriate procedures to ensure that all
    attorney-client communications are reviewed for privilege
    claims and that any properly privileged materials
    (including, but not limited to, recordings of privileged
    communications) are not retained during the course of the
    monitoring. To protect the attorney-client privilege and to
    ensure that the investigation is not compromised by exposure
    to privileged material relating to the investigation or to
    defense strategy, a privilege team shall be designated,
    consisting of individuals not involved in the underlying
    investigation. The monitoring shall be conducted pursuant to
    procedures designed to minimize the intrusion into
    privileged material or conversations. 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. * * *
    * * (f) Other appropriate officials of the Department of
    Justice having custody of persons for whom special
    administrative measures are required may exercise the same
    authorities under this section as the Director of the Bureau
    of Prisons and the Warden.
    
    Dated: October 26, 2001. John Ashcroft, Attorney General.
    [FR Doc. 01-27472 Filed 10-30-01; 9:35 am] BILLING CODE
    4410-05-P
    
    
    
    
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