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Aclu Comments to Doj Terrorist Prisoner Rule

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Comments of the
American Civil Liberties Union

BOP Docket No. 1135-P
RIN 1120-AB35
71 Fed. Reg. 16520-16525 (Apr. 3, 2006)

“Limited Communication for Terrorist Inmates”


On April 3, 2006, the Bureau of Prisons proposed a new regulation imposing severe
restrictions on the ability of persons in Bureau custody to communicate with the outside
world. Although the regulation is titled “Limited Communication for Terrorist Inmates,”
the regulation can be applied to persons who have not been convicted, or even charged,
with any act of terrorism, or indeed with any crime at all.
The regulation provides that a Bureau of Prisons Warden may determine, without
external review, that a person in Bureau custody has “an identifiable link to terroristrelated activity.” 28 CFR 540.200(a). Once a person is so designated, his or her
communications with the outside world are all but eliminated. More specifically, the
prisoner may communicate only with immediate family members, and those
communications are limited as follows:
-One six-page letter per week.
-One fifteen-minute telephone call per month.
-One one-hour visit per month.
28 CFR 540.202(a); 540.203(a); 540.204(a)(1). There is no provision for
communication with friends, relatives other than immediate family, or members of the
news media.1 According to the Notice of Proposed Rulemaking, the regulation is
necessary “[t]o minimize the risk of terrorist-related communication being sent to or
from inmates in Bureau custody.” 71 Fed. Reg. 16522.
The regulation’s blanket ban on communications with the news media and with most
family members is unprecedented and almost certainly unconstitutional. Moreover, this
ban will be imposed by prison officials, with no outside review. Finally, the ban is
completely unnecessary, as existing law allows the Bureau to monitor the mail,
telephone calls, and visits of persons in its custody. Such monitoring fully
accommodates legitimate security concerns without trenching so heavily on the First
Amendment rights of prisoners and those in the outside world who wish to communicate
with them.
For all of these reasons, the regulation should be withdrawn.
The regulation applies to persons who have not been charged with any crime.
The regulation applies not only to convicted persons, but to “inmates (as defined in 28
CFR 500.1(c)).” 28 CFR 540.200(a). Section 500.1(c) in turn defines “inmate” as “all
persons in the custody of the Federal Bureau of Prisons or Bureau contract facilities,”
including “persons held as witnesses, detainees, or otherwise.” The regulation may
accordingly be applied to persons who have not been convicted of, or even charged with,
a crime of terrorism, or indeed any crime at all. Thus, while these Comments use the
term “prisoner” for ease of reference, the regulation’s reach is in fact far broader,

Separate provision is made for communication with counsel and with designated federal officials. 28
CFR 540.202(a)(2), (b); 540.203(b); 540.204(b).


extending even to witnesses and to pretrial detainees clothed with the presumption of
The regulation severely burdens the First Amendment rights both of prisoners and
of nonprisoners who wish to communicate them.
At the outset it must be clearly understood that the regulation, by barring prisoners from
communicating with most persons in the outside world, severely burdens the First
Amendment rights of innocent third parties. The Supreme Court has long recognized
that restrictions on prisoners’ communications implicate the First Amendment rights of
those free persons who wish to communicate with them:
Communication by letter is not accomplished by the act of writing words on
paper. Rather, it is effected only when the letter is read by the addressee. Both
parties to the correspondence have an interest in securing that result, and
censorship of the communication between them necessarily impinges on the
interest of each. Whatever the status of a prisoner's claim to uncensored
correspondence with an outsider, it is plain that the latter's interest is grounded in
the First Amendment's guarantee of freedom of speech. And this does not depend
on whether the nonprisoner correspondent is the author or intended recipient of a
particular letter, for the addressee as well as the sender of direct personal
correspondence derives from the First and Fourteenth Amendments a protection
against unjustified governmental interference with the intended communication.
We do not deal here with difficult questions of the so-called ‘right to hear’ and
third-party standing but with a particular means of communication in which the
interests of both parties are inextricably meshed. The wife of a prison inmate who
is not permitted to read all that her husband wanted to say to her has suffered an
abridgment of her interest in communicating with him as plain as that which
results from censorship of her letter to him. In either event, censorship of prisoner
mail works a consequential restriction on the First and Fourteenth Amendments
rights of those who are not prisoners.
Procunier v. Martinez, 416 U.S. 396, 408-409 (1974), overruled in part on other grounds,
Thornburgh v. Abbott, 490 U.S. 401 (1989).
The regulation completely and unconstitutionally bars prisoners from
communicating with the news media.
“The constitutional guarantee of a free press assures the maintenance of our political
system and an open society, and secures the paramount public interest in a free flow of
information to the people concerning public officials.” Pell v. Procunier, 417 U.S. 817,
832 (1974) (internal quotation marks, citations omitted). But now, for the first time in
modern history, the government proposes to completely bar a class of persons from
communicating with the news media in any form. Such a ban is unprecedented in
American jurisprudence and, under existing case law, is unconstitutional.


The Supreme Court has consistently assumed that communications between prisoners
and members of the news media enjoy constitutional protection. See, e.g., Houchins v.
KQED, Inc., 438 U.S. 1, 15 (1978) (“Respondents have a First Amendment right to
receive letters from inmates criticizing jail officials and reporting on conditions”)
(plurality opinion). When the Court has sustained limitations on certain forms of media
access to correctional facilities, it has always emphasized that alternative means of
communication between prisoners and the press remained open. See, e.g., Saxbe v.
Washington Post Co., 417 U.S. 843, 847 (1974) (upholding restrictions on media
interviews with prisoners) (“In addition, newsmen and inmates are permitted virtually
unlimited written correspondence with each other. Outgoing correspondence from
inmates to press representatives is neither censored nor inspected. Incoming mail from
press representatives is inspected only for contraband or statements inciting illegal
action”); Pell, 417 U.S. at 824 (same) (“Thus, it is clear that the medium of written
correspondence affords inmates an open and substantially unimpeded channel for
communication with persons outside the prison, including representatives of the news
media”). On those few occasions when prison officials attempted to restrict prisoners’
written communications with the news media, the restrictions were held to be
unconstitutional. See Owen v. Lash, 682 F.2d 648, 650-53 (7th Cir. 1982) (ban on
correspondence with newspaper reporter was unconstitutional); Mujahid v. Sumner, 807
F. Supp. 1505, 1509-11 (D. Hawaii 1992) (ban on correspondence with members of the
press unless they had been friends before the prisoner’s incarceration was
unconstitutional), aff’d, 996 F.2d 1226 (9th Cir. 1993); cf. Abu-Jamal v. Price, 154 F.3d
128, 136 (3d Cir. 1998) (enjoining application of rule against “engaging in a business or
profession” to prisoner’s writing for publication). Accordingly, the regulation – which
bars prisoners from communicating with the news media by mail, by telephone, or via
personal visits – is unconstitutional.
The regulation imposes a total ban on communication with most family members.
The Supreme Court has long recognized a right to intimate family association. Meyer v.
Nebraska, 262 U.S. 390 (1923); see also M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996)
(noting the importance of associational rights including choices about marriage, family
life and the upbringing of children); Moore v. City of East Cleveland, 431 U.S. 494, 499
(1977) (plurality opinion) (collecting cases regarding the constitutional protection
afforded choices in matters of marriage and family life). Moreover, the Court has
declined invitations to hold that this right is extinguished by incarceration. See Overton
v. Bazzetta, 539 U.S. 126, 131-132 (2003) (“We do not hold, and we do not imply, that
any right to intimate association is altogether terminated by incarceration or is always
irrelevant to claims made by prisoners”).
The regulation provides that the affected prisoners will be cut off from all
communication with family members, except for spouses, parents, siblings, and children.
See 28 CFR 540.201(d). Even with these immediate family members, communication is
limited to one 15-minute telephone call per month; one one-hour visit per month; and
one six-page letter per week. 28 CFR 540.202(a)(1), 540.203(a), 540.204(a)(1). Nor is
the prisoner guaranteed even this extremely limited contact with immediate family


members; the regulation specifies that “additional limitations on … communications”
may be imposed as a result of “abusing or violating” the communication limits, a term
that is not defined. 28 CFR 540.205(f).
Once again, this blanket ban on all contact with grandparents, grandchildren, aunts,
uncles, cousins, and other relatives is unprecedented. In Bazzetta, the Supreme Court
upheld various restrictions on prison visiting, including a two-year ban on all visits for
prisoners who engaged in certain misconduct. The Court noted that, even for those
prisoners denied all visiting, alternatives were available; “they and other inmates may
communicate with persons outside the prison by letter and telephone.” Bazzetta, 539
U.S. at 135. No such alternatives are available here.
The regulation’s ban on all contact with relatives other than members of the nuclear
family is almost certainly unconstitutional. “Ours is by no means a tradition limited to
respect for the bonds uniting the members of the nuclear family. The tradition of uncles,
aunts, cousins, and especially grandparents sharing a household along with parents and
children has roots equally venerable and equally deserving of constitutional recognition.”
Moore, 431 U.S. at 504 (holding that constitution was implicated by ordinance that
prevented a grandmother from living with her grandchild). Moreover, this ban is likely
to fall with disproportionate weight upon members of racial and ethnic minorities. See
Bryson and Casper, Coresident Grandparents and Grandchildren (U.S. Dep’t of
Commerce, Economics and Statistics Administration, May 1999), at 5 (Black children
are more likely than others to be raised by grandparents).2
The regulation is vague, contains no meaningful standards, and provides no review
of the Bureau of Prisons’ decision to bar a prisoner from communicating with
family members and the news media.
As already noted, the regulation may be applied to persons who have not been convicted
of, or even charged with, a crime of terrorism, or indeed any crime at all. The only
requirement is that the person “have an identifiable link to terrorist-related activity.” 28
U.S.C. § 540.200(a), (b)(2).
The term “identifiable link” is not defined, and the definitions that are provided in the
regulation are singularly unhelpful. “Engaging in terrorist-related activity” is defined,
inter alia, as “[t]o solicit any individual … [f]or membership in a terrorist-related
organization.” 28 U.S.C. § 540.201(b)(5)(ii). “Terrorist-related organization” is in turn
defined as, inter alia, “a group of two or more individuals, whether organized or not,
which engages in terrorist-related activities.” 28 C.F.R. § 540.201(c)(3). Such circularity
in defining the regulation’s central terms inspires little confidence that the regulation will
be applied in an intelligible and evenhanded manner. Rather, such vague, standardless
language invites arbitrary, inconsistent, and discriminatory application of the regulation.
Moreover, the restrictions are to be imposed by the Warden of an individual correctional
facility, with the approval of other Bureau officials. 28 CFR 540.205(c). There is no

Available at (visited May 30, 2006).


provision for review of this decision outside the Bureau. The Supreme Court has
acknowledged the unfortunate propensity of some prison officials to suppress criticism
and complaints by prisoners:
The regulations invalidated by [the district] court authorized, inter alia, censorship
of statements that ‘unduly complain’ or ‘magnify grievances,’ expression of
‘inflammatory political, racial, religious or other views,’ and matter deemed
‘defamatory’ or ‘otherwise inappropriate.’ These regulations fairly invited prison
officials and employees to apply their own personal prejudices and opinions as
standards for prisoner mail censorship. Not surprisingly, some prison officials
used the extraordinary latitude for discretion authorized by the regulations to
suppress unwelcome criticism. For example, at one institution under the
Department's jurisdiction, the checklist used by the mailroom staff authorized
rejection of letters ‘criticizing policy, rules or officials,’ and the mailroom
sergeant stated in a deposition that he would reject as ‘defamatory’ letters
‘belitting staff or our judicial system or anything connected with Department of
Corrections.’ Correspondence was also censored for ‘disrespectful comments,’
‘derogatory remarks,’ and the like.
Martinez, 416 U.S. at 415. In light of this reality, it is unwise to allow the extremely
severe restrictions contemplated by the regulation to be imposed by prison officials
without any outside review.
Placing the decision solely in the hands of Bureau officials also raises serious questions
of institutional competence. The regulation calls on the Warden to impose the
restrictions upon a “determination that limiting the inmate’s communication is necessary
to ensure,” inter alia, “national security.” 28 CFR 540.205(b). Wardens are experts in
maintaining prison order and security and preventing escape; they are not, by and large,
experts in assessing threats to national security. Courts have acknowledged that the
deference customarily due to prison officials does not apply when they act outside their
core function of ensuring prison security. See, e.g., Walker v. Sumner, 917 F.2d 382, 387
(9th Cir. 1990) (“general protestations of concern for the welfare of the citizens of
Nevada” were insufficient to justify involuntary testing of prisoners for HIV).
The regulation is unnecessary, as current law allows monitoring of prisoners’
communications for criminal activity.
Existing Bureau regulations allow prison officials to control and limit prisoners’
correspondence, telephone calls, and visits, and to monitor those communications to
detect and prevent possible criminal activity. For example, prison staff must approve a
prisoner’s visitor lists; they may conduct background checks for that purpose, and may
disapprove any visitor. 28 CFR 540.51(b). Visiting areas may be monitored. 28 CFR
540.51(h). Prison officials may deny placement of a given telephone number on a
prisoner’s telephone list if they determine that there is a threat to security. 28 CFR
540.101(a)(3). Telephone calls are also monitored. 28 CFR 540.102. Prison officials


have the authority to open and read all non-privileged prisoner mail. 28 CFR 540.12,
The Notice of Proposed Rulemaking offers no explanation why these existing methods do
not fully accommodate legitimate security needs. If the volume of prisoner mail,
telephone calls, or visits is too great to permit effective monitoring, Bureau officials may
impose reasonable limits on those activities. See, e.g., 28 CFR 540.40 (“The Warden
may restrict inmate visiting when necessary to ensure the security and good order of the
institution”). Such across-the-board limits would trench far less heavily on First
Amendment rights than singling out a disfavored class of prisoners for a complete ban on
communications with the news media and with most family members. See Crofton v.
Roe, 170 F.3d 957, 960 (9th Cir. 1999) (complete ban on gift subscriptions was not
rationally related to government interest in efficiency of prison operations, as prison
could instead limit the number of subscriptions prisoners could receive).
Indeed, there already exist specific provisions for limiting the communications of
prisoners who are suspected of terrorist activity: the Special Administrative Measures
(SAMs) set forth in 28 CFR part 501. The SAMs suffer from many of the same
constitutional infirmities as the proposed regulation, but they do provide additional
safeguards not present here. As explained in the Notice of Proposed Rulemaking:
Under 28 CFR part 501, SAMs are imposed after approval by the Attorney
General and are generally based on information from the FBI and the U.S.
Attorney’s Office (USAO), but are typically not based solely on information from
internal Bureau of Prisons sources. Unlike 28 CFR part 501, the proposed
regulations allow the Bureau to impose communication limits upon request from
FBI or other Federal law enforcement agency, or if Bureau of Prisons information
indicates a similar need to impose communication restrictions, evidence which
does not rise to the same degree of potential risk to national security or risk of
acts of violence or terrorism which would warrant the Attorney General’s
intervention by issuance of a SAM.
71 Fed. Reg. 16521 (emphasis added). This admission that the proposed regulation will
dilute the standard for imposing these extraordinary restrictions on communication is
troubling, particularly in the absence of any claim that the SAMs have proven inadequate
to serve legitimate security needs.
The proposed regulation is poorly conceived, almost certainly unconstitutional, and
entirely unnecessary. It should be withdrawn.