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Three DOJ documents: Wiretapping, searches, computer seizures

Three DOJ documents: Wiretapping, searches, computer seizures
"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

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28 CFR Parts 500 and 501

National Security; Prevention of Acts of Violence and
Terrorism; Final Rule

[[Page 55062]]

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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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