Speak no Evil, Hear no Evil

Barring suspected terrorists from speaking to the press may enhance security . . . but at what cost?

From the Fall 2003 issue of The News Media & The Law, page 7.

By James McLaughlin

A previously obscure Clinton-era regulation of the Bureau of Prisons has evolved into the legal tool by which Attorney General John Ashcroft is preventing virtually any media access to those captured in the war on terrorism.

A regulation permitting the attorney general to impose “Special Administrative Measures,” or SAMs, can be invoked by the government almost at will to prevent reporters and the public at large from having any contact with accused terrorists, even after they’re convicted.

Those subject to a flat ban on media contact include John Walker Lindh, the so-called “American Taliban” captured in Afghanistan; Zacarias Moussaoui, accused of conspiring in the Sept. 11 attacks; Richard Reid, the “shoe bomber” who tried unsuccessfully to blow up an American Airlines flight from Paris to Miami, and a host of others. Although SAMs primarily target captured terrorists, a few domestic criminals are covered too, such as white supremacist Matthew Hale.

All are prevented from telling their story.

No one wants to give terrorists a soapbox from which to spout their views, particularly if doing so presents a true security risk. But a policy of silencing those accused of terrorist acts may exact its own toll on the freedom of the press and the public’s knowledge of the war on terrorism.

A blanket gag order “leaves reporters and the public in the position of being told, ‘Trust us, we know better than you’ by the government,” says Jane Mayer, a New Yorker staff writer who has reported on the Lindh case. “I’m very uncomfortable with that. It stifles debate and stifles knowledge.”

Although Mayer had no access to Lindh himself, she conducted research using other sources for five months, eventually publishing a lengthy New Yorker piece that cast doubt on the credibility of the government’s allegation that Lindh was a traitor.

“We learned enough to know that the picture painted by the Justice Department was not fair and accurate,” says Mayer. “So that raises the question: what is going on in these other [terrorism] cases?

“The basic feeling you get is that it’s like dealing with the disappeared,” she adds. “These people are complete black holes.”

Cutting Off the Outside World

The obstacles faced by journalists in search of access to federal prisoners are hardly new. Reporters have always had to deal with a variety of bureaucratic hurdles, not to mention many criminal defendants’ reluctance to talk to the press.

“My experience has been that it’s difficult to talk to detainees not only in terrorist prosecutions, but in all cases,” says Tom Brune, a Washington correspondent for Newsday. “There’s a long-running clash between the media and the prison system in terms of getting access to prisoners, at both the federal and state levels.”

Nonetheless, Special Administrative Measures take access restrictions to a new level. The original regulation, which was finalized in 1997, empowered then-Attorney General Janet Reno to order SAMs in two situations: first, when the head of a U.S. intelligence agency certified that the prisoner, if allowed to communicate, could disclose classified information that would threaten national security; and second, when, in the judgment of the attorney general or the head of a federal law enforcement or intelligence agency, unrestricted communications would pose a substantial risk of “death or serious bodily injury” to others.

In such cases, the attorney general was authorized to order administrative detention, limit correspondence, restrict visitors, bar contact with the media and limit use of the telephone. The measures were good for up to 120 days and could be renewed upon a showing that the original circumstances justifying the restrictions still existed.

At the time SAMs were created, the government emphasized that they would be narrowly tailored to the handful of extremely dangerous offenders in the federal prison system. The Federal Register notice announcing the new rule predicted that SAMs would cover “only a minute portion of the inmate population.” That was true, at least before Sept. 11.

Attorney General Reno approved SAMs for a handful of captured terrorists, including Ramzi Yousef (the 1993 World Trade Center bomber), and certain organized crime members, such as Hung Thanh Mai, an Asian gang leader who continued plotting murders from his prison cell. The Unabomber, Ted Kaczynski, was deemed less risky; he was permitted to give an interview to Time magazine, publish a book and even hire a publicist.

After the Sept. 11 attacks, the Justice Department, under Ashcroft’s leadership, issued amended regulations that broadened the attorney general’s authority. The new regulations, which went into effect Oct. 31, 2001, lengthened the 120-day period to a year, eased the requirements for renewal and, most controversially, rescinded an exemption for attorney-client communications.

As Viet Dinh, a former assistant attorney general under Ashcroft, described in the Spring 2002 edition of the Harvard Journal of Law and Public Policy: “The pre-existing regulations cut off all channels of communication through which detainees could plan or foment acts of terrorism, except one: communications through their attorneys. The new regulation closes this loophole” by authorizing prison officials to monitor conversations between inmates and their attorneys.

As of Oct. 31, 2001, only 16 of the 158,000 inmates in the federal prison system were covered by SAMs, according to November 2001 testimony by Assistant Attorney General Michael Chertoff before the Senate Judiciary Committee. Updated figures haven’t been released.

The Bush administration has even made a point of showing that it will actively enforce the most controversial measures. In a move that startled the legal community, the United States indicted defense attorney Lynne Stewart in April 2003 for allegedly helping her client, Sheik Omar Abdel-Rahman, communicate with members of a reputed terrorist organization, the Islamic Group. Abdul-Rahman is serving a life sentence for conspiring to bomb the United Nations and other landmarks in New York City.

One of the criminal offenses, according to the indictment against Stewart, was a public announcement she made to the media on behalf of her client. Stewart’s case is still pending in federal court in Manhattan.

The Price of Silence

Because the government is not required to identify the precise risks posed by each inmate that are addressed by the SAMs, it is difficult to criticize the measures as excessive. Virtually no one contends that the government is never justified in imposing the restrictions. If a prisoner actually intends to use the media to disclose classified information or communicate coded messages to terrorists, few would deny that a ban on media access is appropriate. But such risks are inherently difficult to judge . . . not only for the public, but for the government, too.

This is particularly true of detainees, like Lindh, who remain subject to an indefinite ban. Although it is unclear what, if anything, Lindh knows that may be harmful, he could be gagged until he is released in 2019 — inviting public suspicion that the real reason for the ban is the weakness of the government’s case. (Initially charged with 10 counts, including conspiring to murder U.S. nationals, Lindh ultimately pleaded guilty to a single charge of violating U.S. economic sanctions against the Taliban.)

“I have yet to see a reason why Lindh should not be allowed to speak to reporters,” says Mayer, the New Yorker writer. “And as time goes by, any information that he does have is going to become stale.”

Mayer says she has “tremendous faith in the American legal system,” but that an indefinite gag order “defies my understanding of how the process works.”

Mark Kukis, a former UPI White House correspondent and author of My Heart Became Attached: The Strange Journey of John Walker Lindh, has a different perspective. Lindh, he says, has been subject to countless rounds of interrogation, and therefore may be in a position to reveal U.S. intelligence sources and methodology, even if he didn’t have significant information prior to his capture.

But Kukis agrees that the government’s motives may not be exclusively tied to preventing future terrorist acts.

“Part of it, I think, is that the government doesn’t want to play a role in furthering an accused terrorist’s cult of personality,” Kukis says. “They don’t want to give him his 15 minutes of fame.”

Kukis points out that Lindh’s plea agreement bars him from profiting from his Taliban experiences.

In a sense, Lindh’s voice has already been heard. In addition to his initial interviews — he talked to a CNN reporter in a drugged, groggy state shortly after his capture in Afghanistan — Lindh spoke publicly at his sentencing hearing in federal court on Oct. 4, 2002. In a 14-minute address, he denounced the attacks of Sept. 11 and said he regretted joining the Taliban.

But not all terrorist defendants will have such an opportunity. Many are being held in secret, often as uncharged “enemy combatants” who are denied any access to the court system, let alone the media. And even if a defendant is allowed to speak in court, he is hardly inclined to speak freely in an adversarial setting in which his life and liberty are at stake.

Unlike Lindh, Zacarias Moussaoui has made it clear that he’d like to speak to reporters. The accused “20th man” in the Sept. 11 attacks has yet to stand trial, but he has already petitioned the federal judge supervising his case, Leonie Brinkema of Alexandria, Va., to allow him access to the media. His handwritten motion was rejected Oct. 2.

In a one-page opinion, Brinkema cited the SAMs governing Moussaoui’s confinement, which provide he may not “talk with, meet with, correspond with, or otherwise communicate with any member, or representative of, the news media.”

To date, Moussaoui remains the only person to bring a legal challenge to a SAM prohibiting media access. u