U.S. v. Reid

• Decision Date: 26 July 2002
• Docket Number: No. CRIM.A. 02-10013-WGY.,CRIM.A. 02-10013-WGY.
• Citation: 214 F.Supp.2d 84
• Parties: UNITED STATES of America v. Richard C. REID, Defendant.
• Court: U.S. District Court — District of Massachusetts

214 F.Supp.2d 84

UNITED STATES of America v. Richard C. REID, Defendant.

No. CRIM.A. 02-10013-WGY.

United States District Court, D. Massachusetts.

July 26, 2002.

Stephen G. Huggard, Washington, DC, for U.S.

Owen S. Walker, Office of the Federal Defender, Tamar R. Birckhead, Federal Defender Office, Boston, MA, for Richard C. Reid.

MEMORANDUM AND ORDER CONCERNING PARTICULAR SAMs AND REVISING EARLIER COURT ORDERS

YOUNG, Chief Judge.

Responding swiftly to the most devastating terrorist attack on America in our nation's history — one that originated within our own borders — the President vigorously exercised his war powers. Within days, special forces were on the ground half a world away finding the foes thought to have conceived the attack and trained its perpetrators. Thereafter, in connection with our allies, the President promptly committed air, sea, and land forces in combat with the suspected terrorist masterminds and their allies to root out and destroy them. Closer to home, the President called out the National Guard. Once again, as has happened so often in our history, committed citizens left their daily tasks to secure the nation's airports, inspect its vehicles, fly air cargo missions, patrol its harbors, and safeguard its water supplies. Restrained only by Congress and the Constitution, the President as commander in chief has the legal right — indeed, he has the sworn duty — so to provide for the common defense. E.g., The Prize Cases, 67 U.S. (2 Black) 635, 668-71, 17 L.Ed. 459 (1862) (upholding President Lincoln's exercise of war powers — a naval blockade — in the absence of a congressional declaration of war, or any affirmative congressional action at all, Congress then being in recess).¹

Further, on November 13, 2001, the President promulgated an executive order authorizing military tribunals to try non-citizens whom he determined met certain criteria. Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed.Reg. 57,833 (Nov. 13, 2001) [hereinafter Executive Order]. Of note here, such military tribunals are not limited to the theaters of active combat operations, but are authorized to sit within the United States itself, see id. §§ 3(a), 4(c)(1), where the federal district courts have exclusive jurisdiction over the trial of federal crimes. Compare Ex Parte Quirin, 317 U.S. 1, 63 S.Ct. 1, 87 L.Ed. 3 (1942) (holding that an unlawful enemy belligerent may be tried by secret military tribunal within the territorial jurisdiction of United States District Court), with Ex Parte Milligan, 71 U.S. 2, 4 Wall. 2, 18 L.Ed. 281 (1866) (holding that, absent proper declaration of martial law, a secessionist saboteur who is not himself an enemy belligerent may not be tried by military tribunal within the territorial jurisdiction of United States District Court).²

Before this attack, the President's chief law enforcement officer, the Attorney General, promulgated emergency regulations which allow the imposition of "Special Administrative Measures" ("SAMs") upon any federal prisoner as to whom he finds that "there is a substantial risk that a prisoner's communications or contacts with persons could result in death or serious bodily injury to persons ...." 28 C.F.R. § 501.3(a) ("Prevention of acts of violence and terrorism.")³ (1996). The Attorney General has issued such SAMs against Richard C. Reid ("Reid"), the defendant in this case, under the authority of section 501.3.

SAMs issued pursuant to section 501.3 are implemented "upon written notification to the Director, Bureau of Prisons, by the Attorney General or, at the Attorney General's direction, by the head of a federal law enforcement agency, or the head of a member agency of the United States intelligence community." Id. § 501.3(a). SAMs may be imposed for up to a one-year period upon the approval of the Attorney General, and may be renewed. Id. § 501.3(c). The power of the Attorney General to impose SAMs derives mainly from 5 U.S.C. § 301, which grants the heads of executive departments the power to create regulations designed to assist them in fulfilling their official functions and those of their departments, and 18 U.S.C. § 4001, which vests control of federal prisons in the Attorney General and allows him to promulgate rules governing those prisons.⁴

SAMs are prisoner-specific; that is, each prisoner upon whom SAMs are imposed has a set of SAMs issued for him, and him alone, based on the circumstances of his case. This Memorandum discusses, to the extent necessary, the SAMs issued with respect to Reid, a foreign national detained under order of this Court and awaiting trial on serious charges, and explains this Court's orders in light of the SAMs.

I. BACKGROUND

Reid is alleged to have attempted to blow American Airlines Flight 63 ("Flight 63") out of the sky with bombs concealed in his shoes on December 22, 2001, while over the Atlantic Ocean en route from Paris to Miami.⁵ The plane was immediately diverted to Boston, where it landed in the early afternoon. Reid was turned over to the F.B.I. at that time.

An American grand jury sitting in the District of Massachusetts promptly indicted Reid on a variety of federal charges. Reid was arraigned and ordered detained after a hearing before Magistrate Judge Judith Dein. Prior to the hearing, Magistrate Judge Dein appointed the Federal Defender Office in the District as Reid's counsel, having found that Reid was unable to retain counsel. The Chief Public Defender, Owen S. Walker, Esq., has undertaken Reid's defense, assisted by Defenders Tamar R. Birckhead, Esq., and Elizabeth L. Prevett, Esq.

On March 4, 2002, this Court held an initial scheduling conference pursuant to Local Rule 116.5(A). The Court scheduled a variety of pre-trial matters, including a motion to suppress, and tentatively scheduled trial to commence November 4, 2002. Throughout, the conduct of all counsel for the government and the defense has been, and continues to be, marked by the utmost professionalism and civility.

On that day, however, unbeknownst to the Court, the SAMs began to play a significant role in this case. Two weeks earlier, on February 19, 2002, the Marshals Service unilaterally, without seeking the Court's prior permission, imposed case-specific SAMs on the detention of Reid. The portion of these SAMs concerning Reid's attorney-client communications reads:

d. Defense Counsel May Disseminate Inmate Conversations — The inmate's attorney may disseminate the contents of the inmate's communications to third parties for the sole purpose of preparing the inmate's defense — and not for any other reason — on the understanding that any such dissemination shall be made solely by the inmate's counsel, and not by the counsel's staff.

Gov't's Protective Order Mem., Attach. A, at 2 [Docket No. 97]. "Attorney" is defined as the inmate's attorney or attorneys of record, verified and documented by the government. Id. at 1 n. 1. "Staff" is meant to refer to "Pre-cleared" staff members of Reid's defense team: co-counsel, paralegals, investigators, or translators actively engaged in his defense, who have submitted to a background check by the F.B.I. and the United States Attorney for the District of Massachusetts and have been successfully cleared, and who have agreed to adhere to the SAMs by signing the affirmation required of all those engaged in Reid's defense. Id. at 2 n. 2. (The issue of signing an affirmation is taken up below at Part III.B.) Co-counsel, i.e., other lawyers engaged in Reid's defense, and the attorneys' paralegal staff, may meet with Reid face to face without Reid's attorneys being present, but the government seeks completely to prohibit the nonlawyer staff of the public defenders office, translators, potential fact witnesses and prospective defense experts, such as a psychiatrist, from meeting with Reid without his attorneys. Id. at 2-3. Such persons are permitted to talk with the defendant on the telephone as long as Reid's attorneys participate in the call, id. at 3, and presumably these properly designated individuals may meet with Reid if accompanied by his attorneys of record. Paragraph 2(j) of the SAMs allows Reid to provide written documents and drawings to his attorney for the purposes of preparing his defense, but require counsel to retain these documents and not disseminate them to anyone not engaged in Reid's defense; paragraphs 2(i) and (k) require that the attorneys show Reid only documents related to his defense and that they not, under any circumstances, divulge, forward, or send the contents of his mail to any third parties. Id. at 5-6. Paragraph 2(h) outlines Reid's privileged telephone conversations for the purpose of conducting his own defense, and requires that these conversations not be overheard by any third parties not engaged in his defense. Id. at 3-5. Finally, Paragraph 2(a) requires Reid's attorneys, their paralegal staff, designated co-counsel, and investigators to acknowledge and sign off on the SAMs. This paragraph reads as follows:

a. Attorney Affirmation of Receipt of the SAM Restrictions Document—The inmate's attorney (or counsel)—individually by each if more than one—must sign an affirmation acknowledging receipt of the SAM restrictions document. The Federal Government expects that the attorney, the attorney's staff, and anyone else at the behest of, or acting on behalf of, the attorney, will fully abide by the SAM outlined in this document; that expectation is set forth in the SAM restrictions document.

i. The [United States Attorney for the District of Massachusetts] shall present, or forward, the "attorney affirmation of receipt of the SAM restrictions document" to the inmate's attorney.

ii. After initiation of SAM and prior to the inmate's attorney being permitted to have attorney/client-privileged contact with the inmate, the inmate's attorney shall execute a document affirming the receipt of the SAM restrictions document...