July 21, 2014

VIII. Full Recommendations

To the US President

  • Urge the attorney general, Department of Justice, and Bureau of Prisons to reform investigative, trial and detention practices.
  • 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 abusive investigations.
      • 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 ideological forms.

To the US Attorney General

  • 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 guidelines;
      • 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 Organization.
  • 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 recruiting informants.

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 international law;
    • charge only individuals or groups who intended to further unlawful activity.
    • 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 activities.
  • Restrict use of Special Administrative Measures (SAMs).
    • 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 Prisons

  • 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 ties. Consistent 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 classification.
    • 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 services.
    • 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 a hearing.
    • 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 offenses.

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 about terrorism.
    • 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 their qualifications.
  • 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 violent offense.

To the US Congress

  • Investigations:
    • 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 previously authorized.
    • Hold hearings and conduct robust oversight of the FBI’s activities, particularly with regard to the recruitment and tasking of informants.
    • 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.