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MEMORANDUM
| TO: |
Paul A. Price
Assistant Inspector for Evaluations and Inspections |
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| FROM: |
[signed]
Paul R. Johnson
Acting Executive Officer |
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| SUBJECT: |
Criminal Division's Comments to your Draft Evaluation Report on the Federal Bureau of Prisons' Monitoring of Mail for High-Risk Inmates |
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In response to your August 17, 2006 memorandum, the following is the Criminal Division's response to the draft report and the recommendation to the Division.
Recommendation to the Criminal Division
The Criminal Division, on behalf of the Department, should develop a coordinated and mandatory review process for each newly incarcerated pretrial or convicted inmate associated with terrorism to determine the applicability of SAMs. This process should ensure, at a minimum, that the FBI, the prosecuting USAOs, and the Criminal Division each review these inmates for SAMs applicability.
The Criminal Division concurs with this recommendation with one small change. The Division proposes the recommendation should read:
The Criminal Division and the National Security Division, on behalf of the Department, should develop a coordinated and mandatory review process for each newly incarcerated pretrial or convicted inmate associated with terrorism to determine the applicability of SAMs. This process should ensure, at a minimum, that the FBI, the prosecuting USAOs, and the Department each review these inmates for SAMs applicability.
In March 2006, the National Security Division of the Department of Justice was authorized in the USA Patriot Improvement and Reauthorization Act of 2005. Kenneth Wainstein has been nominated as the Assistant Attorney General for this new Division and once he is confirmed, the Division will be formed. The Criminal Division's Counterterrorism, Counterespionage, and Office of Intelligence Policy and Review Sections will be moving to this new Division. Since the Counterterrorism Section plays an important role in the Special Administrative Measures (SAMs) review process for newly incarcerated pretrial and convicted inmates associated with terrorism, we think that National Security Division should also be part of this recommendation.
The Criminal Division, in concordance with the National Security Division, plans to implement this recommendation by proposing a change to the U.S. Attorneys Manual (USAM) provisions. Currently, we are drafting the text for this change to the USAM. The Division plans to have this draft completed soon in order to share it with the appropriate personnel in the Department for their feedback before submitting it to the full Attorney General Advisory Committee for their approval. We expect that this entire process will take six months.
Editorial Comment
In addition to our proposed change to the recommendation, the Division has the following editorial change.
Page 64; Section heading, "The Department does not have a mandatory review process to require that all international terrorist inmates are considered for SAMs upon initial incarceration and after conviction": As discussed in this Section of the report, while the Department does not have any policy requiring that all inmates arrested for international terrorism-related crimes are reviewed to determine whether they should be place under SAMs, the Department has issued guidance about the criteria and procedures for requesting SAMs for inmates. So to better reflect this effort, we recommend the title be changed to: Although the Department has provided meaningful guidance regarding when to propose SAMs, the Department does not have a mandatory review process to require that all international terrorist inmates are considered for SAMs upon initial incarceration and after conviction.
Page 65; Last paragraph; Second sentence: We suggest that page 65 should be modified as follows: We consider these guidelines, which are detailed and informative to be a positive development. The Criminal Division guidelines discuss, among other things, the criteria used for SAMs, the procedures to follow in implementing and renewing SAMs and the constitutional issues related to the imposition of SAMs. The guidance is drawn from case law and practical experiences of the Department's efforts in this area. This type of analytic product well serves the interests of the Department in clearly and uniformly providing meaningful guidance to prosecutors engaged in these types of inquiries. We note, however, that these guidelines are not mandatory Department requirements.
We appreciate the opportunity to comment on this draft. If you have any questions or concerns, please contact Debra Frary, Audit Liaison for the Criminal Division, at (202) 305-4967 or debra.frary@usdoj.gov.
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