Tom Gede, Chair, Criminal Law & Procedure Practice Group, Sacramento, CA
Kent Scheidegger, Criminal Justice Legal Foundation, Sacramento
William Otis, Washington, D.C.
December 3, 2001
Of the many actions taken by the Administration following the September 11, 2001 terrorist attacks on the World Trade Center and Pentagon, few have been as controversial as the announcement by the Department of Justice that it would permit limited monitoring of attorney-client communications of certain designated federal prisoners in order to prevent acts of terrorism. At the same time, few acts have been as horrific and threatening to the nation's peace and security as the violent and deadly assault of September 11, which in turn demands a new set of tools to protect society and fight the war against terrorism. This White Paper seeks to explain the background, reasoning and various legal positions relating to the Department's administrative action and thereby promote public awareness and understanding of the complex issues involved.
Background: On October 31, 2001, the Bureau of Prisons, U.S. Department of Justice, published an interim rule, with a request for comments, that amends existing "special administrative measures" with respect to specified inmates, where, based on information provided by senior intelligence or law enforcement officials, the Bureau of Prisons determines it 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. 66 Fed.Reg. 55062 (Oct. 31, 2001); BOP-1116; AG Order No. 2529-2001. In addition to extending the time period in which these special administrative measures may be used, the interim rule also amends the existing regulations to provide that the Bureau is authorized to monitor mail or communications with attorneys in order to deter acts of violence or terrorism, subject to various procedural safeguards. The interim rule was effective immediately (October 30, 2001), but solicits comments to the Bureau by December 31, 2001.
The interim rule amends correctional institutional management regulations codified at 28 CFR 501.2 (national security) and 28 CFR 501.3 (violence and terrorism), relating to 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. The existing regulations at § 501.2 (national security) authorize the Director of the Bureau of Prisons to impose special administrative measures 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. As the supplementary information accompanying the interim rule explains, 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." 66 Fed. Reg. 55062; 28 CFR §§ 501.2(a), 501.3(a).
Similarly, the regulation at § 501.3 (prevention of acts of violence and terrorism) authorizes the imposition of special administrative measures on an inmate based on a written determination by the Attorney General or his designee 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. 66 Fed.Reg. 55062.
The interim rule generally allows for the extension of the period of special administrative measures from 120 days to up to one year and provides for various amended procedures, factual determinations and standards for approving the extensions of the periods, relating to both the national security cases and those involving relating to the prevention of acts of violence and terrorism. As those amendments are not directly relevant to this White Paper, they will not be discussed here.
Of particular relevance to this paper, the interim rule provides authority for the monitoring of communications between an inmate and his or her attorneys or their agents where the Attorney General orders it. It must be based on a reasonable suspicion held by the head of a federal law enforcement or intelligence agency that a particular inmate may use communications with attorneys or their agents to further or facilitate acts of terrorism. The rule provides there must be a specific determination that the monitoring measures are reasonably necessary in order to deter future acts of violence or terrorism and there must be a specific notification to the inmate and the attorneys involved before the attorney-client communications may take place.
As the supplementary information accompanying the interim rule summarizes matters, 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." 66 Fed.Reg. 55064. The supplemental information accompanying the interim rule includes a discussion of the legal issues, as noted below.
Discussion: This paper presents two possible arguments regarding the monitoring of attorney-client communications of federal prisoners suspected of involvement in terrorist activity. The first argument, which is the position of one of the authors-William Otis-is that such prisoners are unlawful belligerents because of their participation in terrorist activities and are not entitled to Sixth Amendment protections. The President is therefore entitled, as incident to his obligation to prosecute the war, to determine the rules for communicating with the outside world that will govern captured enemies, and, if the President chooses to allow communication with counsel at all, he has the right to order that it be monitored to insure that the soldier-inmate is not continuing from prison his participation in the war. The second argument, endorsed by all three authors (Tom Gede, William Otis, and Kent Scheidegger), is that the Department of Justice regulation would be constitutionally acceptable under an application of Sixth Amendment principles and conventional criminal justice rules.
"We are in a War, and Unlawful Belligerents have No Claim to Constitutional Protection."  The first duty of any government is to protect the lives and safety of its citizens. After September 11, there can be no serious argument that our government must use every means at its command to discharge that duty.
In matters of national security, on the other hand, the powers of the federal government are broader than in the conventional enforcement of statutory criminal law. The Constitution grants to the Executive and Legislative Branches, as the preamble announces, specific powers to "insure domestic Tranquility and provide for the common Defence .
Most notable and relevant for present purposes is the power of the Congress under Article I, section 8 to declare war, but also its power to "define and punish . . . Offenses against the Law of Nations" and to "make Rules concerning Captures on Land and Water." Likewise, the role of the President, under Article II, section 2, as the "Commander in Chief of the Army and the Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States" reflects the Constitution's grant of authority to the Executive Branch to address threats to national security independent of the President's separate role as chief magistrate and prosecutor of criminal laws.
This constitutional authority to provide for the national defense and to protect national security in the face of enemy attack extends not only to the conduct of war by traditional military means, but also to the treatment of individuals who prosecute the attack on the enemy's behalf. "An important incident to the conduct of war is the adoption of measures by the military commander, not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who, in their attempt to thwart or impede our military effort, have violated the law of war." 
The authority that the Constitution confers on the federal government to prosecute the enemy by all appropriate means applies to the enemy found at home as well as those encountered abroad. Quirin concerned a group of saboteurs who were landed by German U-boats on U.S. beaches during World War II. Their assignment from the German military authorities was to destroy military targets and war-production facilities on the U.S. home front. All of the saboteurs were Germans except one, Haupt, who claimed to be a naturalized U.S. citizen. After capture by the FBI, the belligerents were placed in military custody. Pursuant to an Executive order, they were tried by a military commission, which found them all guilty and sentenced them to death. They then filed petitions for writs of habeas corpus, challenging the authority of the military tribunal, and the tribunal's denial to them during its proceedings of the Constitutional rights specified in Article III and the Fifth and Sixth Amendments.
The Supreme Court upheld the military commission's authority. The Court concluded that the President, as Commander-in-Chief, has the power to enforce all laws relating to the conduct of war, "and to carry into effect . . . all laws defining and punishing offenses against the law of nations including those which pertain to the conduct of war."  This power, the Court held, includes the authority "to seize and subject to disciplinary measures those enemies who in their attempt to thwart or impede our military effort have violated the law of war." 
The Court likewise rejected the would-be saboteurs' claim to the traditional constitutional rights enjoyed by an accused in the criminal justice system. The Court concluded, first, that the saboteurs were not criminal defendants, but rather were unlawful belligerents accused of violating the laws of war. "[A]n enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, is familiar examples of belligerents who are generally deemed . . . to be offenders against the law of war subject to trial and punishment by military tribunals." 
The Court next rejected the unlawful combatants' claim that, having been captured by FBI agents on U.S. soil, they enjoyed constitutional rights under Article III and the Fifth and Sixth Amendments. "We conclude that the Fifth and Sixth Amendments did not restrict whatever authority was conferred by the Constitution to try offenses against the law of war by military commission, and that petitioners, charged with such an offense not required to be tried by jury at common law, were lawfully placed on trial by the Commission without a jury." 
Because under Quirin and the law of war, the commander-in-chief has plenary authority to determine under what conditions, if any, a captured combatant is to be permitted contact with the outside world, the Executive Branch regulation permitting such contact but subjecting it to monitoring, based on reasonable suspicion that it is intended to advance the enemy's war designs, is valid irrespective of whatever its status would be in non-wartime conditions. As is next shown, however, it is also valid even if assessed under peacetime law-enforcement analysis.
"Answering the Critics: A Law Enforcement Analysis."  As soon as the Attorney General announced the special administrative measures for federal prisoners and detainees suspected of terrorism, critics denounced it as an assault on the Constitution. The American Bar Association maintains that "these new rules run squarely afoul of the Fourth and Sixth Amendments to the U.S. Constitution . Other critics have been more restrained, but also invoke these two Amendments .
The protection of civil liberties is, of course, a fundamental concern of Americans and a special charge to the legal community. Quite obviously, however, our civil liberties are only valuable to us when we are secure from the imminent threat of massacre, death, and destruction. Nonetheless, in the fight against terrorism, Attorney General Ashcroft has committed himself to the preservation of basic constitutional liberties, testifying to the Congress on September 24 that we will "meet the challenge of terrorism within our borders and targeted at our friends and neighbors with the same careful regard for the constitutional rights of Americans and respect for all human beings." 
Without doubt, it is possible to implement tools to further the prevention of violent terrorist acts while protecting basic constitutional rights. The special administrative measure, in the form of an interim rule, that allows for limited monitoring of the communications of certain federal prisoners, does just that - - it is a useful tool in preventing future potential acts of terrorism while at the same time it includes certain limitations and protective measure to protect basic constitutional rights. It must be remembered that the primary focus of the Department of Justice has shifted to preventing future terrorist acts from happening and punishing the would-be perpetrators for their plans of terror. As Attorney General John Ashcroft said on October 24, "We cannot wait for terrorists to strike to begin investigations and to take action. The death tolls are too high, the consequences too great. We must prevent first -- we must prosecute second." 
The starting point for any claim that a prisoner's constitutional rights have been violated is Turner v. Safley , where the Court confirmed the highly deferential "reasonably related" test for prison regulations. Turner established a four-factor analysis for applying this test when a regulation is challenged as violating a constitutional right: (1) a valid, rational connection between the regulation and the government interest; (2) availability of alternative means of exercising the right for the inmates; (3) impact of the exercise of the claimed right; and (4) absence of ready alternatives for the prison. Rights related to legal advice are not exempt from this general standard. The Supreme Court recently said in a unanimous decision, "the issue before us is whether Turner permits an increase in constitutional protection whenever a prisoner's communication includes legal advice. We conclude it does not." 
The critics' Fourth Amendment argument is the weaker of the two by a considerable margin. The Fourth Amendment only protects areas and conversations that a reasonable person would justifiably expect to be private . Prison visiting rooms and phones are generally not private, and by this point it is well established outside the attorney-client context that if the prisoner has notice of monitoring, there is no reasonable expectation of privacy and no Fourth Amendment violation . This applies to spouses of prisoners, for example. An argument that communication with one's attorney involves greater privacy rights than communication with one's spouse seems far-fetched .
The claim for special status for attorney-client communications must necessarily rest on the Sixth Amendment right to counsel. Confidential communication is certainly an important element in obtaining the effective assistance of counsel. However, the right is not absolute, and the law has long recognized that communications for the purpose of carrying out further crimes or frauds are not privileged and not entitled to protection . Known as the crime/fraud exception to the attorney client privilege, evidence from such communications is admissible in court and may be disseminated by law enforcement as needed. The attorney-client privilege protects only confidential communications regarding legal matters, such as the seeking or providing of legal advice.
The problem arises when it is necessary to pierce the veil of confidentiality to determine whether the communication really is privileged or whether it is an unprivileged criminal conspiracy. The Supreme Court addressed this dilemma in a somewhat different context in United States v. Zolin.  The question in that case was whether a judge could review the allegedly confidential communication in camera to determine if the crime-fraud exception applied. The Court decided that the "correct balance" between unnecessary intrusion and abuse of the privilege called for such a review upon a showing of a reasonable basis to believe that the review "may reveal evidence ... that the crime-fraud exception applies." 
The balancing approached used in Zolin to reach this standard involved matters of far less importance than those involved in the present controversy. Zolin was only about collecting taxes. Yet even in that case, the cost of barring review of the communication until it could be shown by external evidence not to be privileged was held to be "intolerably high."  The present controversy involves massive threats to the national security, requiring a greater exercise of government authority than in other areas. In a related context, the Supreme Court noted in Kennedy v. Mendoza-Martinez,  "The powers of Congress to require military service for the common defense are broad and far-reaching, for while the Constitution protects against invasions of individual rights, it is not a suicide pact."
The American Bar Association takes the position that nothing less than a judicial finding of probable cause is required , the same standard required for the general population outside prison in ordinary criminal matters. For the ABA to ignore the differences between routine criminal investigations and the very limited but supremely important goal of preventing devastating acts of terror - in the prison context, no less - is shortsighted and misplaced. The ABA suggests a standard wholly inapplicable to circumstances in a prison when the government is charged with learning about potential terrorist acts and saving lives.
Limitations in the measure. It should be remembered this special administrative measure is not an unchecked intrusion on prisoner-attorney relations. The monitoring may occur only where the head of a federal law enforcement or intelligence agency informs the Attorney General that there is reasonable suspicion to believe that a particular inmate may use communications with attorneys or their agents to plan or facilitate acts of terrorism. According to Michael Chertoff, Assistant Attorney General for the Criminal Division, this means that only 16 out of 158,000 federal inmates  - less than one one-hundredth of one percent - would be subject to the measure. In fact, as Chertoff testified, of the "16, 12 are terrorists, and four are in - are under these special administrative measures for espionage."  Thus, the claim that the prison regulation is, or will begin, a wholesale assault on the attorney-client privilege is incorrect.
Additionally, as the measure provides, both the inmate and his attorney must be notified in writing that the monitoring will occur. § 501.3(d)(2). The notice must include that communications between the inmate and attorneys are not protected 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." § 501.3(d)(2)(ii).
Further, the rule limits and minimizes the disclosure of information that arises form the inmate-attorney conversations. The rule provides for a "privilege team" to contemporaneously monitor the inmate's communications with counsel, using established firewall procedures. § 501.3(d)(3). The rule states that attorney client communications subject to the privilege will never be revealed to prosecutors and investigators, noting procedures such as this have been approved by the courts  and are used in authorized wiretap activities to prevent disclosure of privileged attorney client communications. The monitoring shall "be conducted pursuant to procedures designed to minimize the intrusion into privileged conversation." § 501.3(d)(3). Except when the person in charge of the privilege team determines that acts of violence or terrorism are imminent, a judge must approve any disclosures.
Rejection of the ABA's position does not mean that other alternatives may not be considered, such as those informed by two of the four elements of the Turner test, discussed above. While the Bureau of Prisons regulation is effective immediately, it is an interim rule, open for public comment and subject to revision. In addition, Congress is actively considering the matter and could supplant the regulation with a statute. Amar and Amar, see note, propose that the small group of suspected terrorists be limited in their choice of counsel to an approved list that have met rigorous security screening, "say, former Justice Department officials," and that the prisoners in question be permitted confidential communication with these select attorneys. This is a possibility worth considering. It would require strict limitations against passing on communications to any third party, whether another attorney or anyone else.
Another possibility would be to have a court-appointed special master, rather than Department of Justice employees, do the monitoring. It is understandable that the defense side is most uncomfortable with government agents as the monitors, "firewalls" notwithstanding. Special masters would, of course, have to be trained to recognize coded communications, but, analogous to the Amars' proposal, retired agents might be recruited for this function.
As an interim measure, at least, the special administrative measure in this regulation is likely to withstand judicial scrutiny under the Turner test. A national emergency is certainly upon us, and alternatives will take time and possibly legislation to implement.
1. Two of the authors, Tom Gede and Kent Scheidegger, do not believe that the analysis contained in this section-and, in particular, the holding and rationale of the Quirin case-apply to individuals who have been convicted or have cases pending in the regular criminal courts. They would rest the defense of the regulation on the idea that it strikes the appropriate balance between the inmate's Sixth Amendment rights and the interest in national security.
2. The following several paragraphs are taken from one of the other papers in the War Against Terrorism Series produced by several Federalist Society volunteers, titled "The War Against Terrorism: Law Enforcement or National Security" (prepared by George Terwilliger, Robert Parker, Theodore Cooperstein, Shawn Gunnarson, and Daniel Blumenthal). That paper also can be accessed on the Federalist Society's web site, www.fed-soc.org.
3. In re Yamashita, 327 U.S. 1, 9 (1946).
4. Ex Parte Quirin, 317 U.S.1 (1942).
5. Id. at 26.
6. Id. at 28-29.
7. Id. at 30-31.
8. Quirin, 317 U.S. at 45; see also Yamashita, 327 U.S. at 23 (rejecting a Fifth Amendment challenge to the introduction of hearsay evidence in a prosecution before a military commission; "[T]he commission's rulings on evidence and on the mode of conducting these proceedings against petitioner are not reviewable by the courts . . .. From this viewpoint it is unnecessary to consider what, in other situations, the Fifth Amendment might require[.])"
9. All three authors are in agreement respecting this section.
10. See Statement of Robert E. Hirshon, President, American Bar Association (Nov. 9, 2001); website (last viewed Nov. 28, 2001).
11. See Neal Katyal, Testimony before the Senate Judiciary Committee (Nov. 28, 2001); Amar & Amar, The New Regulation Allowing Federal Agents to Monitor Attorney-Client Conversations: Why It Threatens Fourth Amendment Values (Nov. 16, 2001); website (last viewed Nov. 29, 2001).
12. See Attorney General John Ashcroft Testimony Before the House Committee on the Judiciary on September 24,2001, at http://www.usdoj.gov/ag/agcrisisremarks9_24.htm (last visited November 13, 2001).
13. Ibid., see also U.S. Dept. of Justice press release, Nov. 8, 2001, "Prevention of Acts Threatening Public Safety and National Security."
14. 482 U.S. 64, 89 (1987).
15. Shaw v. Murphy, 149 L. Ed.2d 420, 427 (2001).
16. See, e.g., California v. Ciraolo, 476 U.S. 207, 213 (1986) (aerial naked-eye observation of marijuana from public, navigable airspace: no reasonable expectation of privacy).
17. See M. Mushlin, Rights of Prisoners, § 8.12, pp. 396-397 (2d ed. 1993).
18. Additionally, First Amendment considerations do not play a critical role in this discussion. As the interim rule notes, the U.S. Supreme Court stated 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.'' See discussion in Bureau of Prison final rule implementing § 501.3 at 62 Fed.Reg. 33730-31.
19. See Clark v. United States, 289 U.S. 1, 15 (1933); United States v. Gordon-Nikkar, 518 F. 2d 972, 975 (5th Cir. 1975); also Weatherford v. Bursey, 429 U.S. 545, 552-54 (1977).
20. 491 U.S. 554 (1989).
21. Id. at 572 (emphasis added).
22. Id. at 569.
23. 372 U.S. 144, 159-160 (1962).
24. See Hirshon Statement, supra.
25. Testimony of Assistant Attorney General Michael Chertoff to Senate Judiciary Committee, November 28, 2001.
27. The interim rule cites, e.g. National City Trading Corp. v. United States, 635 F.2d 1020, 1026-27 (2d Cir. 1980)(search of a law office). 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) (court cites 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). Also, Blair v. Armontrout, 916 F.2d 1310, 1333 (8th Cir. 1990).