[Federal Register Volume 66, Number 211 (Wednesday, October 31, 2001)]
[Rules and Regulations]
[Pages 55062-55066]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-27472]



[[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

  Federal Register / Vol. 66, No. 211 / Wednesday, October 31, 2001 / 
Rules and Regulations  

[[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.

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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

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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