VIII. Full Recommendations
To the US President
- Urge the attorney general, Department of
Justice, and Bureau of Prisons to reform investigative, trial and detention
- Ensure UN special rapporteurs have full
access to facilities and prisoners to ensure compliance with international
human rights standards.
- Direct reform of “Countering Violent
Extremism” and Community Outreach programs.
- Direct all federal agencies to ensure that activity conducted as
“community outreach” or under the auspices of “countering
violent extremism” (CVE) is not being used for intelligence purposes and
that these programs are not exploited for intelligence collection.
- Direct all federal agencies to ensure that counterterrorism and
CVE programs are based on sound academic and empirical research methods, rather
than discredited “radicalization” theories.
- Direct federal agencies to support community-driven and
rights-respecting programs as an alternative to the use of informants and
- Support social service providers and community organizations
that develop programs based on needs they have identified.
- Do not base referrals for soft intervention on religious
behavior, political opinion, or other activity protected by the right to
freedom of expression under international law.
- Reconceptualize CVE to focus on domestic terrorism of all
To the US Attorney
- Reform investigation authorities.
- Amend the attorney general’s Guidelines for Domestic FBI
Operations (“Guidelines”) to:
- clearly establish that decisions to initiate assessments,
preliminary investigations, or investigations may not be made on the basis of
religious behavior, political opinion, or other activity protected by the right
to freedom of expression under international law;
- prohibit the recruiting and tasking of informants in assessment
and preliminary investigation phases, as under previous versions of the
- permit the FBI to initiate a full investigation only if it is supported
by articulable facts giving rise to a reasonable indication that a violation of
federal law may occur, as required under previous versions of the guidelines.
- With minimal redactions to protect legitimately secret
information, declassify and make public key portions of the FBI’s
Confidential Human Source Validation Standards Manual, in order to allow more robust
public oversight of informant conduct and approval procedures.
- Permit challenges to material support
charges: Permit individuals charged with material support under 18 USC
§ 2339B to challenge the underlying designation of the Foreign Terrorist
- Reform Special Administrative Measures:
Revise the regulations governing Special Administrative Measures (SAMs), 28
C.F.R. § 501.2 and § 501.3.
- Establish procedures enabling prisoners and their lawyers to
directly challenge the imposition and renewal of SAMs, including resulting
conditions such as solitary confinement, through a pre-deprivation hearing that
includes opportunity to review evidence justifying SAMs, submit rebuttal
evidence and provide witness testimony.
- Change the standard time for imposition of SAMs from one year to
120 days, as under previous versions of the regulation.
- Limit Monitoring of Attorney-Client Communications. Rescind the
regulation that directs the Bureau of Prisons to facilitate the monitoring or
review of communications between detainees and attorneys.
To the Federal
Bureau of Investigation
- Ensure that decisions to initiate
assessments, preliminary investigations or investigations are not made on the
basis of religious behavior, political opinion, or other activity protected by
the right to freedom of expression under international law.
- Revise the Domestic Investigations
Operations Guide (DIOG) to prohibit the recruiting and tasking of informants in
assessment and preliminary investigation phases.
- Declassify and make public key portions of
the DIOG detailing guidance provided to FBI agents for initiating monitoring of
religious and political institutions.
- Report to congressional committees on the
deployment of informants into community or religious spaces, including the
number of informants and the scope of their activities.
- Ensure that information obtained through
community outreach is not used for intelligence purposes, in accordance with
existing FBI policy.
- Ensure that law enforcement agents do not
use threats, including those involving the “no-fly” list, when
To the Department of Justice National Security
Division and US Attorneys’ Offices
- Reform material support charging practices.
- When charging under the material support statutes, 18 USC §
2339A and B:
- do not charge individuals or groups for providing material
support based on activity protected by the right to freedom of expression under
- charge only individuals or groups who intended to further
- Reform trial practices.
- Review standards for introduction of evidence about terrorism
that is not directly linked to defendants’ conduct to ensure such
evidence is not overly prejudicial.
- Request anonymity of lay witnesses only to protect the witness
from physical harm.
- Request anonymity of law enforcement witnesses only in rare circumstances
when absolutely necessary to protect ongoing investigations. Ensure defense
receives adequate information to compensate for anonymity and permit thorough
cross-examination of anonymous witnesses.
- Where possible, only use as expert witnesses individuals whose
identity and background can be made public.
- Ensure expert witnesses have particular expertise in the precise
matter at issue in each case.
- Reform sentencing: Adopt standards to
restrict the seeking of the terrorism adjustment, particularly for cases where
defendants did not intend physical harm to persons to result from their
- Restrict use of Special Administrative
- In orders imposing SAMs, provide specific justifications for
imposing severe restrictions, e.g., bars on communication with other inmates or
on receipt of information, and ensure that restrictions are proportionate to
the particular dangers or threats identified.
- During the SAMs renewal process, provide prisoners and their
lawyers the opportunity to directly petition the prosecuting US
Attorney’s Office that makes the renewal request.
- Limit orders to monitor attorney-client communications to the
cases in which no other means are available to protect against serious threats
to national security, particularly for pretrial prisoners, and require court
authorization and notification to defense counsel.
- Cease use of evidence obtained without
warrant or court order: Do not seek to introduce evidence against defendants in
criminal cases derived from warrantless surveillance conducted under section
702 of the FISA Amendments Act.
To the Bureau of
- End prolonged solitary confinement: Prohibit
all prolonged solitary confinement and indefinite solitary confinement. Where
solitary confinement is used, ensure its duration is as short as possible and
for a definite term, with notice to prisoners. Ensure periodic, individualized
review of prisoners’ placement in solitary confinement and provide
prisoners a meaningful opportunity to challenge the specific justifications and
evidence underlying their placement.
- Permit challenges to terrorism designations:
Provide notice to prisoners of their designation as “terrorist”
prisoners—whether domestic or international—and an opportunity to
challenge the designation and related restriction or conditions of confinement.
- Improve conditions in detention.
- Ensure that all prison facilities comply with Bureau of Prison regulations
regarding minimum amount of time in recreation and that prisoners in pretrial
detention are promptly notified of their rights.
- End policies that prohibit all contact visits for prisoners
convicted of terrorism offenses or who are otherwise deemed to have terrorist
with the Bureau of Prisons’ general policy recognizing the importance of the visitation
for rehabilitation, permit contact visits unless evidence establishes a
specific security risk with regard to communication or contact with particular
individuals. For inmates for whom there are specific security risks, design
contact visitation rooms that permit audio and visual monitoring.
- Increase phone call allowances for prisoners whose communication the Bureau of
Prisons monitors, including prisoners under SAMs
and at CMUs, to levels matching other prisoners under their security
- Ensure humane prison conditions, including adequate lighting,
heating and cooling, and ventilation, including at the CMUs and in pretrial
detention Special Housing Units.
- Improve conditions at the Communication
Management Units (CMUs).
- Ensure adequate and timely access to medical and mental health
- Investigate allegations of harassment, intimidation, and
retaliation against Muslim and Arab prisoners.
- Ensure all prisoners are given adequate accommodations for
religious practices, including the opportunity for group prayer for any
prisoners for whom it is a religious requirement.
- Permit prisoners to challenge their CMU designation through a
hearing and review process, for example similar to the process afforded to
prisoners placed in a control unit, including a live hearing, advance notice of
charges and the acts or evidence at issue, and the right to call witnesses and
present documentary evidence.
- Provide due process protections for prisoners prior to CMU
designation, including meaningful notice of all reasons for CMU placement, and
- Ensure meaningful and periodic review of CMU placement every 6
months and provide clear criteria for gaining transfer out of the CMU.
- Ensure the right to an effective defense.
- Do not impose pretrial solitary confinement based solely on the
severity of the offenses charged; ensure any imposition of pretrial solitary is
imposed under meaningful judicial supervision, including of the impact on the
defendant’s ability to participate in preparation of a defense.
- Do not unduly delay or arbitrarily block letters, visits and
other forms of communication between prisoners and their lawyers.
- Reform Special Administrative Measures: In
carrying out SAMs orders, apply the least restrictive conditions of confinement
for prisoners and do not impose solitary confinement if reasonable alternatives
are available. Provide prisoners meaningful opportunity to challenge conditions
of confinement imposed due to SAMs, including prohibitions of contact
visitations and receipt information.
- Improve procedures for transfer at
Administrative Maximum in Florence, Colorado (“ADX Florence”).
- Notify prisoners of the specific evidence and factual
allegations justifying their placement at ADX Florence and provide detailed
guidance on the Step Down program to prisoners and their lawyers.
- Ensure that prisoners with clear disciplinary records and good
behavior have meaningful opportunity to progress through the Step Down program
and be placed in less restrictive conditions, and do not base placement
decisions exclusively on such prisoners’ criminal convictions.
- Allow prisoners who will not become eligible for Step Down for
several years, but who have good behavioral history and who do not pose a
specific threat to staff or other prisoners, the opportunity to have group
meals, group recreation, group prayer, and group therapy so as to alleviate the
most psychologically damaging and punitive aspect of placement at the ADX.
To the Department of
Justice Office of Inspector General
- Review the use of informants in
terrorism-related cases, including the FBI’s oversight, the effectiveness
of the rules under the Attorney General's Guidelines Regarding the FBI’s
Use of Confidential Human Sources and the FBI Domestic Investigations and
Operations Guide, and the impact of national security exceptions.
- Review the impact of the most recent
revisions to the Attorney General’s Guidelines for Domestic Intelligence
Operations, including its use of assessments and investigative techniques that
were not previously authorized, on FBI investigation practices, FBI-community
relations, and respect for freedom of expression and association rights in
American Muslim communities.
- Review the conditions and restriction of
privileges for prisoners charged or convicted of terrorism or terrorism-related
To the US Sentencing Commission
- Conduct a study assessing whether the
current system of sentence enhancements for terrorism is furthering appropriate
criminal justice goals and is well-tailored to best meet those goals.
- Revise the Sentencing Guidelines’
terrorism adjustment to apply only to federal crimes of terrorism, as defined
in 18 U.S.C. 2332b(g), rather than any offense that “involved, or was
intended to promote” such a crime.
To Federal Court Judges
- Evidence and Witnesses:
- In weighing the probative value of evidence against its
potential prejudicial effects, take into account the context of heightened fear
- Permit fact witnesses to testify anonymously only in cases where
their personal safety may be at risk by public disclosure of their identities.
- If it is necessary for an expert witness to testify
anonymously—and no similarly qualified expert is available—ensure
adequate measures are taken to permit the defense to effectively challenge
- Seek to provide specific recourse in
judicial orders, ensuring that defendants under SAMs or otherwise held in
Special Housing Units maintain adequate access to counsel in order to properly
prepare their defense, in line with international human rights law standards.
- Ensure that sentencing decisions reflect the
goal of rehabilitation.
- Do not impose terrorism adjustments on the
basis of unproven conduct; use judicial discretion to depart from the US
Sentencing Guidelines where an individual was not convicted of committing a
To the US Congress
- Request that the Office of the Inspector General of the Justice
Department review the impact of the most recent revisions to the Attorney General’s
Guidelines for Domestic Intelligence Operations on the FBI’s practices,
including its use of assessments and investigative techniques that were not
- Hold hearings and conduct robust oversight of the FBI’s
activities, particularly with regard to the recruitment and tasking of
- Amend the material support statutes, 18 USC § 2339A and
§ 2339B, to:
- Include a requirement for proof of specific intent to further
unlawful activity before imposing criminal liability.
- Remove or clarify overbroad and impermissibly vague language in
material support statute, including “training,”
“service,” and “expert advice and assistance.”
- Detention: Enact legislation requiring the
Bureau of Prisons and all federal agencies that operate or contract for prisons
to prohibit prolonged solitary confinement and indefinite solitary confinement.
- Request that the Government Accountability
Office review the Bureau of Prison’s treatment of prisoners under Special
Administrative Measures and in Communication Management Units, including the
use of solitary confinement and prohibition on contact visits.
- Sentencing: Enact legislation directing the
US Sentencing Commission to amend the Sentencing Guidelines to modify the
adjustment so that it does not artificially raise the defendant’s
criminal history level to the highest level.
- Trials: Reform FISA Amendments Act to make
clear that the Justice Department shall not introduce into as evidence in a
criminal case information obtained pursuant to collection under section 702.