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Bureau of Prisons Gag Rule Enacted

Effective June 20, 1997, the Department of Justice and its Federal Bureau of Prisons (BOP) enacted changes to 28 CFR (chapter V, subchapter A, Part 501) governing general management and administration of BOP prisons. The new rules allow the federal government to target BOP prisoners who are deemed to present a threat to "National Security" for the purpose of eliminating the ability of those prisoners to communicate with the outside world.

Section 501.2, titled "National security cases", states that "Upon direction of the Attorney General, the Director, Bureau of Prisons may authorize the Warden to implement special administrative measures that are reasonably necessary to prevent disclosure of classified information upon written certification to the Attorney General by the head of a member agency of the United States intelligence community that 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."

Section 501.3, titled "Prevention of acts of violence and terrorism" provides for implementation of the same restrictions outlined above. But section 501.3 "may be implemented upon written notification to the Director, Bureau of Prisons, by the Attorney General or, at the Attorney General's direction, by the head of a federal law enforcement agency, or the head of a member agency of the United States intelligence community, that there is a substantial risk that a prisoner's communications or contacts with persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons." This section allows restrictions on correspondence, use of the telephone, etc. "as is reasonably necessary to protect persons against the risk of acts of violence or terrorism."

Prisoners restricted under either section shall be notified in writing of "the restrictions imposed and the basis for these restrictions." However, the "notice's statement as to the basis may be limited in the interest of prison security or safety or [national security (sec. 501.2)] to protect against acts of violence or terrorism. [sec. 501.33]"

The restrictions may be imposed for 120 days, and may be extended thereafter in 120-day increments. The affected prisoner "may seek review of any special restrictions imposed... through the Administrative Remedy Program, 28 CFR part 542." In other words, after the U.S. Attorney General has personally directed that you be tossed in the hole and effectively gagged, you are free to appeal through the standard BOP grievance procedure.

An interim version of the rule was published in the Federal Register on May 17, 1996 (61 FR 25120) and public comment was solicited. A summary of those comments and the BOP's responses was published in the Federal Register on June 20, 1997 (62 FR 33730). Most comments centered on concern that the regulation is violative of a prisoner's first amendment rights (and the 1st amendment rights of persons who would be prevented from communicating with the prisoner). The BOP, citing 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 a prisoner or with legitimate penological objectives of the corrections system...") responded that "this regulation, with its concern of security and protection of the public, meets this [ Procunier ] test."

One commenter noted that "no death or injury has resulted from a federal prisoner's communication with unincarcerated individuals," to which the BOP replied that it "is not necessary to experience such an incident before regulations can be implemented to address the need."

Another commenter pointed out that that the rule does not provide a formal administrative measure by which a non-prisoner may challenge the restrictions on a the prisoner's ability to communicate with non-incarcerated persons. The BOP's response is: "Such an administrative mechanism is not considered necessary..."

Another commenter expressed concern about the potential for a lack of accountability and/or abuse, including abuse by government officials who wish to deny the media access for illegitimate reasons, such as "content-based suppression of speech." The BOP responded that the "regulation is promulgated to alleviate such concerns." The BOP then reiterated that only the A.G. or the head of a federal law enforcement agency or head of a member agency of the U.S. intelligence community can direct that the restrictions be applied to a prisoner -- as if these persons are above reproach and incapable of abuse. Really? The BOP further states that the "Department's Standards of Professional Conduct also serve as a constraint [against abuses]." Very comforting.

For further information, write to: Rules Unit, Office of General Counsel, Bureau of Prisons, HOLC Room 754, 320 First Street, NW., Washington, DC 20534; or contact Roy Nanovic, Office of General Counsel, Bureau of Prisons, phone (202) 514-6655. Mr. Nanovic failed to respond to PLN 's attempts to reach him by telephone for comment.

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