The law enforcement reaction to the Rayful Edmond case was substantial. Both the FBI and the District of Columbia U.S. Attorney's Office harshly criticized the BOP, blaming it for lax management that permitted inmates to orchestrate drug deals from federal prison. In response to this criticism, the BOP established two working groups to make recommendations regarding the issue of inmate telephone abuse. The Department of Justice also established a third working group. In addition, the BOP issued a National Strategic Planning Objective to address inmates’ misuse of telephones.

In this chapter, we describe the three working groups and the changes that the BOP has implemented. As we describe below, there have been few substantive changes resulting from these efforts and, taken together, we believe they are not sufficient to address the serious problem of inmate telephone abuse.

  1. 1996 BOP Working Group

    In August 1996, BOP Director Kathleen Hawk Sawyer convened a BOP working group to review the inmate telephone program and inmate visiting and mail procedures. The group consisted of five BOP Assistant Directors, two attorneys from the BOP’s Office of General Counsel, the Chief of the Trust Fund Branch, the Chief of the Intelligence Section, SIS officers from Allenwood and Lewisburg, and support staff. Minutes from the group’s initial meeting indicate that, with respect to inmate telephone abuse, “two areas requiring close attention are 3rd party calls and the lack of a limit on the number of calls that can be made by an inmate.”

    Also at the working group’s initial meeting, the BOP’s Intelligence Section staff discussed ways to improve control of inmate telephone use in BOP institutions. Among the issues raised were new technology, improved training for telephone monitors and remote monitoring officers who monitor inmate calls, and restrictions on the length of inmate calls and the hours per day inmate telephones are turned on. The group made a series of assignments at this first meeting, which included research into telephone technology (such as voice recognition and the ability to stop third party calling), the BOP’s legal ability to limit inmate calls, and the foreign language capabilities of BOP telephone monitors.

    At a second meeting of the working group, held in September 1996, the group decided to conduct a week’s worth of intensive call monitoring at Allenwood’s four-prison complex to gather information about the number of inmate calls. The group planned to use the information from this sample to develop standards for the amount of inmate telephone monitoring that was needed.

    Most of the work group’s assignments were never completed. However, it did complete the telephone monitoring survey at Allenwood, which found that the 7,163 inmates in the four-prison Allenwood complex placed an average of 7,500 calls each day. The survey projected that an average of 15 percent of all inmate calls could be monitored if each of the four institutions in the complex had ten monitors listening to 28 to 30 calls each during an eight-hour shift.

    This work group did not meet again after its second meeting. As we describe in section D below, another working group, called the Wardens’ Working Group, was established in the fall of 1997 to address inmate telephone abuse issues.

  2. The BOP Director's Letter to Wardens and Executive Staff

    On April 2, 1997, BOP Director Hawk Sawyer emphasized her concern about inmate telephone abuse in her regular “Director's Letter” to all wardens and executive staff. The letter began by stating: “While we recognize that inmates generally should be allowed to communicate with loved ones outside the institution, we know that telephone privileges can easily be abused, and we must do everything in our power to prevent such abuse.” The letter said that the first step necessary was to “redouble our efforts to monitor inmate telephone calls effectively” and suggested the following additional steps: (1) monitoring requirements and procedures should be specifically addressed in post orders of remote monitoring officers; (2) production of telephone monitoring reports should be considered a performance element; (3) institutions with dedicated telephone monitoring posts must not vacate these positions; (4) all suspicious conversations should be referred to the SIS office; (5) illegal activities should be referred immediately to the FBI and the referral documented in BOP records; and (6) inmates who abuse telephone privileges must receive “meaningful disciplinary action.”

    The letter also encouraged institutions to develop a list of inmates whose telephone conversations should receive additional scrutiny, including inmates who make an extraordinary number of telephone calls and inmates who are likely to continue their criminal enterprises while incarcerated. The letter said that these inmates should also be placed on “Posted Picture File” status (as noted earlier in the report, the SIS posts the pictures of inmates who are considered to be potential problems) to familiarize staff with potential telephone abusers. The letter also announced implementation of the new category for “Phone Abuse” in the BOP’s SENTRY system. Finally, the letter recommended that each institution arrange a briefing for its executive staff by the SIS office to discuss the inmate telephone system's capabilities and to ensure that other departments support inmate telephone monitoring.

  3. Attorney General's Working Group

    In the fall of 1996, the Attorney General requested that a working group be established to review issues related to inmates’ use of prison telephones. The working group was composed of representatives from the BOP, the FBI, the DEA, the Executive Office for United States Attorneys (EOUSA), the Criminal Division, and the USAO in the District of Columbia. During its year-long existence, the group addressed three primary issues:

    1. whether the BOP should continue to allow inmates their current degree of access to telephones;

    2. whether better use could be made of recordings of inmate telephone calls and of the data pertaining to inmate telephone calls to identify ongoing crimes; and

    3. whether the BOP could better coordinate with federal prosecutors and investigators to ensure that they receive information of possible criminal activities in the BOP's possession

    With respect to the first issue on inmate access to telephones, the Attorney General’s working group deferred to the Wardens’ Working Group (whose work we describe in section IV below). To address the second issue, the Department’s Office of Legal Counsel (OLC) examined Department policy that required law enforcement officials to obtain a subpoena or search warrant for previously recorded inmate calls or a court order under the wiretap statute for monitoring prospective conversations. The OLC stated that these policies were neither constitutionally nor statutorily required and could be changed at any time. In the end, however, the working group decided not to recommend changing that policy in light of objections from the Criminal Division and U.S. Attorneys’ offices.

    The FBI and DEA representatives on this working group also pointed out that even if they had unlimited access to recordings of inmate telephone conversations, they could not devote the manpower required to listen to every call and decipher inmates’ coded conversations. Consequently, they suggested that such access would be of limited utility. The working group eventually concluded that it would not be cost-effective to listen to and analyze all inmate calls, given the high volume of calls and the small number that the BOP asserted involved criminal activity.34 The FBI and DEA believed, however, that transactional data describing inmate calls was a valuable source of intelligence in identifying criminal activity. The group recommended that the Department develop a standardized form that the FBI and DEA could submit to the BOP to request transactional data on specified inmates’ calls.

    With respect to the issue of coordination between the BOP and investigative agencies, the working group developed a form for the BOP to use to submit reports to the FBI of possible criminal activity by inmates. The form was also intended to track the outcome of these reports.

    Based on the working group’s recommendations, Attorney General Reno issued a memorandum on May 7, 1998, to the heads of the FBI, the DEA, and the BOP that described the procedure to be followed when law enforcement officials seek transactional data concerning an inmate's telephone calls. It also explained how the BOP was to report criminal activity by an inmate in its custody.35 The memorandum states that most BOP inmates have access to telephones and that “while there are valid penological reasons for allowing inmates this privilege, telephones may be used to facilitate crimes within the institution and by persons in the community.”

    The final section of the Attorney General's memorandum sets forth a process by which prosecutors and investigators should alert the BOP about “inmates of greatest concern in or about to enter BOP custody.” The term “inmates of greatest concern” was defined as “those persons who are or will be imprisoned in a correctional facility operated by the BOP and who are perceived by the outside agency to pose a potential threat of continuing significant criminal activity while incarcerated.” The reporting agencies were asked to describe the potential threat to the institution or to public safety and to attach copies of the indictment or other documentation to assist the BOP in understanding the inmate’s “specific threat characteristics.”

    As of the fall of 1998 when we examined this process, the BOP had received such notification from prosecutors or investigators on only two inmates.36 One involved an inmate who had arranged drug deals from prison. The second involved an inmate who directed two different drug trafficking conspiracies while detained at the Metropolitan Correctional Center in San Diego, California.

  4. Wardens' Working Group

    The BOP convened another working group to study inmate telephone abuse. The “Inmate Telephone Work group,” also known as the Wardens’ Working Group, was comprised of four wardens, the Chief of the BOP’s Intelligence Section, and a representative from the Administration Division at BOP Headquarters. The group’s goal was to implement the BOP's National Strategic Planning Objective 5.11, a BOP mandate designed to prevent inmate telephone abuse.

    The Wardens’ Working Group met for three days in September 1997 and discussed a variety of issues, including reasonable inmate access to telephones, hours of inmate telephone operation, and disciplinary sanctions restricting inmate telephone use. According to Michael Cooksey, the Assistant Director of the BOP’s Correctional Programs Division, the group attempted to think creatively and develop solutions to the problem of inmate telephone abuse without taking any legal restrictions into account.37

    1. Working Group Recommendations

      A memorandum with recommendations from the Wardens’ Working Group was completed in November 1997. It recommended that inmates’ non-attorney telephone calls be limited to two per day, 75 minutes of telephone usage per week, and a total of 300 minutes per month. Each inmate call would be limited to 15 minutes. The working group cited the 1996 BOP telephone survey that indicated that three-quarters of all inmates make less than five 15-minute telephone calls a week and that less than 6 percent of inmates were spending more than 30 minutes a day on the telephone. See section I, above. The working group believed that the proposed limit on calls would continue to allow inmates reasonable access to the telephones while reducing the total number of calls and enabling BOP staff to monitor a greater percentage of calls. The working group report stated: “When coupled with effective inmate profiling and telephone monitoring and the increased sanctions for telephone abuse, this will provide more deterrence and decrease the incidence of criminal activity and other telephone abuses.”

      It is clear from interviews with the members of the working group that they did not have an accurate idea of the scope of the telephone abuse problem when they made their recommendations. This was because, despite concerns about telephone abuse since the early 1980s, BOP had not gathered “comprehensive” data on this topic. Deputy Assistant Director of Correctional Programs (and former warden) Dennis Bidwell told the OIG that the group based its recommendations on the general experience its members had as wardens and their sense of what constituted reasonable access to telephones for inmates.

      The working group also recommended that the hours of inmate access to telephones be limited to 6:00 a.m. to 11:30 p.m. The working group reasoned that the decreased hours of operation would allow additional time for staff to monitor previously recorded telephone calls.

      On the issue of disciplinary sanctions, the working group recommended that the BOP’s “Telephone Regulations for Inmates” be revised to provide wardens the discretion to temporarily suspend an inmate's telephone privileges when an inmate was under investigation for suspected criminal activity using the telephone. The group also recommended raising the severity level for telephone abuse involving criminal activity from a 400-level offense to the 100 level (the most serious category). The working group recommended raising all other telephone abuse to a 200-level offense that automatically would be referred to the Disciplinary Hearing Officer (DHO) and avoid informal resolution of the charges. This would promote consistency of sanctions, provide for more severe sanctions, and allow the SIS office to track the offenses.

      The working group also recommended that the BOP change its telephone regulations to allow wardens to restrict an inmate's telephone use as a matter of classification by the institution’s unit team, much like restrictions that are placed on certain inmate’s correspondence privileges. This restriction would not be a sanction for specific instances of misuse of the telephone, but rather a method of controlling whom a prisoner could call. A warden can restrict an inmate’s general correspondence if the inmate is a security risk, threatens a government official, or has committed an offense involving the mail.

      In its report, the working group listed potential disadvantages to its proposals, including inmate dissatisfaction that might lead to increased filings of inmate grievances and other litigation; a possible decrease in the number of calls from cooperating inmates to outside law enforcement entities; and a possible increase in requests by inmates to place unmonitored legal calls. The working group also expressed its concern that any reduction in telephone privileges would encourage inmates to shift their illegal activities from the telephone to the visiting room or their correspondence, or attempt to solicit staff involvement in criminal activities.

    2. Review by Federal Programs Branch Attorneys

      In November 1997, the BOP’s Office of General Counsel asked Federal Programs’ attorneys to review the working group’s recommendations and advise of the litigation risks the BOP might face under the Washington v. Reno settlement agreement if the proposed changes were implemented.

      Kathleen Moriarty Mueller, an attorney in the Federal Programs Division, told the OIG that the working group did not have any legal guidance about their mission from anyone at BOP Headquarters and none of its members had any legal training. Mueller said that the working group’s draft report had to be rewritten by Federal Programs staff before it was presented to the Executive Staff.

      The Washington v. Reno settlement requires BOP to provide inmates with 135 minutes of telephone calls per month – 120 minutes of collect calls and one 15-minute debit call. The 300 limit far exceeds this requirement. Federal Programs said that inmates might challenge any restrictions but concluded that the BOP could still prevail if it established that the limitations on inmate telephone privileges were implemented “to maintain the security or good order of the correctional institution, or to protect the public.” (Settlement Agreement, Section IV.)

    3. Review by the BOP Office of General Counsel

      The BOP's Office of General Counsel (OGC) reviewed the working group’s recommendations and Federal Programs’ analysis, weighing the possibility that implementing the proposals would reopen the litigation in Washington v. Reno. The OGC, agreeing with Federal Programs, said that prior to instituting restrictions on inmate telephone privileges BOP needed to: (1) have a clear, concise explanation of what is and what is not permitted under the new policy; (2) be able to explain and support with evidence the goals and objectives it seeks to obtain with the new policy; (3) be able to explain with supporting testimonial, anecdotal, and statistical evidence how each aspect of the new policy will advance these goals and objectives; and (4) have a legal argument explaining why each aspect of the policy change is consistent with the settlement agreement. OGC noted that BOP’s SIS office has not “compiled any statistics or reports of prosecutions or disciplinary infractions by inmates using the phone.” Finally, OGC said that formal rulemaking would need to be undertaken before any changes in inmate telephone privileges were implemented.

      The OGC also raised concerns that if inmate calling privileges were restricted, the BOP would have to amend its contract solicitations for the ITS II proposal. Otherwise, the BOP could risk a possible bid protest or the contractor could seek a contract price adjustment. OGC suggested delaying the final contracting phase until after the BOP’s Executive Staff made a decision about the working group’s recommendations to restrict inmate calls.38

      Carolyn Sabol, a BOP Deputy General Counsel on the negotiation team handling the Washington v. Reno litigation, told us that she felt strongly that it was not the right time to make any changes in inmate telephone privileges that could disturb the settlement. She said that the federal judge presiding over the case had accepted the settlement agreement with the expectation that inmates would continue to have unlimited telephone calls, although the settlement agreement does not provide specifically for this.

    4. Decision on Working Group’s Recommendations

      In November 1997, the Working Group’s recommendations and OGC analysis were forwarded to the BOP’s Executive Staff for review and decision. The Executive Staff did not make a decision on the issue of whether to limit inmate telephone calls and decided that the issue should be presented to the Deputy Attorney General for his review. The Executive Staff approved the working group’s remaining recommendations: to increase of disciplinary levels for violations, to limit hours of telephone use to 6 a.m. to 11:30 p.m., and to continue “emphasis on inmate profiling and inmate telephone monitoring at the local level.”39 It rejected proposals to eliminate the 400-level offense code for telephone abuse; the recommendation that all level 200-level offenses be automatically referred to the DHO; and the proposal to permit wardens to restrict an inmate's telephone access as a matter of classification by the Unit Team.

      On December 16, 1997, BOP Director Hawk Sawyer met with Deputy Attorney General Eric Holder regarding the working group’s recommendations on the issue of limiting inmate telephone privileges. According to a BOP memorandum, Deputy Attorney General Holder and Director Hawk Sawyer agreed that, due “to the terms of the settlement agreement and the many new security features on the new telephone system,” limitation on all inmates’ telephone privileges was not necessary at that time. According to the BOP memorandum, “The Bureau will implement ITS-2 and the other changes recommended and then assess its impact on reducing inmate criminal conduct by telephone.”

  5. The BOP’s National Strategic Planning Objective 5.11

    In early 1996, before the working group was established, in response to concerns about inmate telephone abuse, the BOP established National Strategic Planning Objective 5.11. These objectives are issued by the BOP to guide its policy decisions and keep track of progress made in each area. Objective 5.11 was drafted by the Correctional Programs Division, which also has responsibility for tracking progress under the objective.

    The goal of Objective 5.11 was to “prevent inmates from engaging in or continuing criminal activity during incarceration through an enhanced emphasis on training and intelligence gathering (identification, detection and deterrence).” According to BOP Assistant Director for Correctional Programs Michael Cooksey, Objective 5.11 was partly geared towards inmates’ use of telephones to commit crimes, although that was not its sole focus.

    Under Objective 5.11, the BOP was to use the following strategies to reduce criminal activity by inmates: improve the flow of information within the BOP to ensure timely reporting; utilize all intelligence resources to target inmates with a high likelihood to continue criminal behavior in prison; fully use “confidentials” and “posted picture card” information, which are BOP databases with intelligence information on problem inmates; use outside intelligence resources; and impose more severe sanctions for inmates who conduct illegal activities. The BOP identified “indicators” under each of these strategies to determine if these objectives had been accomplished .

    As of the fall of 1998, when we questioned the BOP, the BOP had accomplished few of these indicators. One effort undertaken by the BOP regarding inmate telephone abuse was the distribution within the BOP of a guide written by the BOP’s Intelligence Section, entitled “Inmate Telephone Monitoring, a Field Guide for Planning an Organized Approach to Phone Monitoring Operations.” This guide, distributed to all BOP institutions in August 1997, was written primarily by Craig Trout, then head of the BOP’s Intelligence Section. The introduction to the guide states:

    Among our priority concerns is that we do not have inmates who were convicted for playing leadership roles in major street level drug trafficking organizations continuing their criminal operations through the use of institution inmate telephones. A number of secondary issues also need to be considered, such as basic inmate accountability. We need to ensure that inmates are actually present on work or education assignments and engaged in productive activity, rather than lingering in housing units making telephone calls. Consequently, some inmates may require reassignment from orderly jobs or similar assignments so that their time is more appropriately engaged in institution programs. Finally, we do not want a small number of inmates to dominate telephone usage and reduce the availability of phones for inmates who are programming appropriately.

    The overview section of the guide states that in addition to random monitoring of calls, “a major component of monitoring operations is driven by population profiling.” Inmates who are suspected of being involved in drug activities, escape plots, or who have been identified as having a high likelihood of engaging in criminal activity, should be “targeted for intense review of their telephone conversations,” according to the guide.

    Trout told the OIG that the BOP tries to maintain a balance between proactive and reactive investigations on inmate crimes committed in its institutions – with an emphasis on the proactive. Trout stated that ideally the BOP would have full background information from law enforcement sources on each inmate, would identify “at risk” inmates, and would determine whether inmates were contacting previously identified co-conspirators or known criminals. However, he said the information available to the BOP and the resources to pursue such investigations are inadequate. As discussed above in Chapter Four, we too found that prison institutions were not fully using the methods outlined in the monitoring guide.

    As noted above, the BOP has proposed increasing the sanctions for telephone abuse, based on the recommendations of the Wardens’ Working group. The BOP has published these proposed regulations. They have been through the comment process, but they have not yet been implemented.

    The BOP has also made some progress on a few other indicators suggested by National Strategic Planning Objective 5.11, such as the hiring of intelligence officers. In 1997, the BOP obtained funding for 24 new Intelligence Operations Officers who will be placed at several Metropolitan Detention Centers. The officers will participate as members of law enforcement task forces and collect intelligence on inmates targeted by the task forces when those individuals enter the federal correctional system.

    Yet, the BOP appears not to have implemented many other measures required by Objective 5.11 or even know where the efforts regarding those indicators stand. When interviewed by the OIG in the Fall of 1998, Rob Baysinger, who as Chief of Intelligence is responsible for tracking the objective, did not know the status of several indicators that are required of all institutions, such as:

    The BOP had instructed each institution to provide their implementation plans for all of the indicators to the Central Office Intelligence Section through the Regional Intelligence staff by September 30, 1998. When we asked the BOP in November 1998 for copies of this information, we were told that the Intelligence Section has not collected or surveyed any of the institutions to ensure that they are developing the indicators.

    We therefore contacted BOP’s 66 ITS institutions to determine the extent to which they have developed the required indicators. The responses we received from all 66 institutions indicate that few institutions are implementing BOP’s recommended proactive procedures for preventing inmate telephone abuse. Our survey found the following:

    Thus, it appears that the changes implemented by National Objective 5.11 have been meager. Although the BOP has focused some attention on the issue of telephone abuse, it has taken far too little action in implementing corrective measures or even the directives that it has proposed. And as reflected in our surveys, site visits, review of files, and interviews of BOP staff that we described earlier, the limited corrective efforts the BOP has taken have not been effective in adequately addressing the serious problem of inmate telephone abuse.

  6. Congressional Change in Trust Fund Language

    The BOP sought Congressional legislation to clarify its authority to use profits from the Trust Fund to be used for monitoring of inmate telephones. In Washington v. Reno, the Sixth Circuit considered whether the use of Commissary Fund monies to install and operate the ITS system violated the statutory provisions concerning proper use of the Fund. The Sixth Circuit held that the BOP could not use inmate Commissary Trust Funds to pay for components of the ITS system that were primarily for institutional security. The Court noted that the Commissary Fund, which is comprised of profits from the sale of articles at the prison commissaries, is termed a “trust fund” by the provisions of 31 U.S.C. Section 1321(a)(22). The terms of the trust, contained in 1932 Department of Justice circular 2244 entitled “Rules Governing the Control of Prisoners Funds at the Several Penal and Correctional Institutions,” provide that, with the approval of the Director of the BOP, the fund “may be disbursed on written order of the Warden for any purpose accruing to the benefit of the inmate body, as a whole, such as amusements, education, library or general welfare work.”

    The plaintiffs in Washington v. Reno argued that expenditures from the Commissary Fund for the installation and support of the ITS system were not for the benefit of the entire inmate body and therefore should not be made. The Sixth Circuit held that the plaintiffs might not be able to show that the ITS did not benefit the general population as a whole. The Court stated:

    In fact, the very existence of any system allowing telephonic communication with individuals outside the prison system can be viewed as a substantial benefit to the prison population as a whole. Moreover, a system such as ITS that can lower the cost of calls made by the inmates accords yet an additional benefit to the plaintiffs. Also, although funds for the ITS system will initially decrease the balance in the Commissary Fund, evidence before the district court established that, once fully operational, the ITS system, based on purchases of phone 'credits' from the prison commissaries, will actually result in a net profit for the Commissary Fund.

    The evidence before the district court showed that live monitoring equipment was utilized both for a security function and for “diagnostic purposes” in keeping the telephone lines functioning properly. The Sixth Circuit held that where trust fund expenditures have dual purposes, the court must examine the primary function of the questioned expenditure. If the primary purpose of the expenditure is to provide for responsibilities attendant upon the confinement of persons housed in federal facilities the trust fund cannot be used. Otherwise, the Court held, “‘security costs’ that were expended from the Commissary Fund, even if they may have also served a legitimate phone system function, will improperly deplete the balance of funds ultimately available to the inmates for other purposes.” The case was remanded to the district court for further findings.

    In an effort to alleviate the problem of a possible prohibition against use of trust fund monies for costs related to its security, the BOP obtained new legislation designed to remedy the situation. The legislation, as passed in PL 105-277, 112 Stat 2681, provides:

    For fiscal year 1999 and thereafter, the Director of the Bureau of Prisons may make expenditures out of the Commissary Fund of the Federal Prison System, regardless of whether any such expenditure is security-related, for programs, goods, and services for the benefit of inmates (to the extent the provision of those programs, goods, or services to inmates is not otherwise prohibited by law), including --

    1. the installation, operation, and maintenance of the Inmate Telephone system;

    2. the payment of all the equipment purchased or leased in connection with the Inmate Telephone System; and

    3. the salaries, benefits, and other expenses of personnel who install, operate, and maintain the Inmate Telephone System.

    The legislation was intended to clarify the BOP's position that ITS as a whole was for the benefit of the inmate population. The costs of security are therefore simply costs associated with the substantial benefit of telephone access provided the inmates by ITS.

    The BOP OGC told the OIG that this legislation would suffice to allow the BOP to begin using trust fund monies to pay for costs of security related to ITS beginning in fiscal year 1999. However, attorneys for the Federal Programs Branch who handled the litigation in Washington v. Reno had several concerns.

    For example, the language of the statute provides that costs of employees can be paid when they “install, operate, and maintain” the system. It is an open question whether BOP staff focussed on gathering intelligence information and targeting specific inmates are “operating” ITS. The focus of these employees is not on operating the system or detecting fraud within the system, but on investigations, an aspect that may not fit within the legislative language. The attorneys recommended that further legislation that is specifically designed to have monitoring costs paid for by the Commissary fund be sought.

    In addition, the Federal Programs attorneys warned that telephone monitors and other staff that deal with the ITS often perform other functions within an institution as well. If the BOP plans to pay for costs of monitoring out of the Commissary Fund, it must be very careful to keep an accounting of the time an employee spends on telephone functions and the time that is spent on other activities that should not be paid for by Commissary funds.

    34 The BOP has made the assertion in various arenas that only a small percentage of the large volume of inmate calls involve violations of criminal laws or prison policies. The BOP has not, however, done any studies to support this assertion. As we discussed earlier in this report, the statistics we collected and the interviews we conducted paint a far different picture of the scope of inmate telephone abuse.

    35 "Procedures For Law Enforcement Access to Transactional Data Pertaining to Telephone Communications of Inmates in the Custody of the Bureau of Prisons; Procedures for Bureau of Prisons Referral of a Criminal Matter to a Federal Investigative Agency," May 7, 1998.

    36 As of August 1999, the BOP has received only six such notifications.

    37 It is unclear why this approach was taken given the lengthy litigation over the BOP’s Inmate Telephone System and the subsequent settlement agreement. The BOP informed the OIG that the legal review was to be competed after the best operational methods had been determined. The BOP also asserted that the group was given guidance by the BOP’s General Counsel the first day of the session in order to make them aware of elements of the Washington v. Reno settlement.

    38 In May 1997, Kevin Rooney, the BOP’s Assistant Director for Administration, wrote to BOP Director Hawk Sawyer about the impact of limiting inmate calling privileges on solicitation of the ITS II contract. The memorandum said that if the BOP intended to restrict inmate calling in the near future, "it would be prudent to include this restriction in the current solicitation for the new system.” However, when the BOP Director met with Rooney and the Trust Fund Chief, she received assurances that the solicitation would be flexible enough to accommodate a future modification of inmate calling privileges, even down to the 120-minute minimum allowed under the settlement agreement. Consequently, the contract solicitation was not modified.

    39 It also approved some changes in visiting and mail privileges.