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AL-OWHALI v. ASHCROFT

August 29, 2003

MOHAMED RASHID DAOUD AL-OWHALI, PLAINTIFF,
v.
JOHN ASHCROFT, UNITED STATES ATTORNEY GENERAL, DEFENDANT



The opinion of the court was delivered by: Reggie B. Walton, District Judge

MEMORANDUM OPINION

This lawsuit involves a challenge by the plaintiff to regulations promulgated by the defendant that plaintiff alleges violate his rights guaranteed by the Fifth and Sixth Amendments of the Constitution. Because the Court concludes that plaintiff does not have standing to challenge the regulations at issue, it does not reach the merits of plaintiff's claims, and defendant's motion to dismiss the complaint is granted.

I. Background

The plaintiff, Mohamed Rashid Daoud Al-`Owhali ("Al-`Owhali") is a citizen of Saudi Arabia. Compl. ¶ 4.*fn1 Al-`Owhali was indicted, along with other members of the al Qaeda terrorist organization, in connection with the bombing of the United States embassy located in Nairobi, Kenya. Compl. ¶ 6; Memorandum in Support of Defendant's Motion to Dismiss ("Def.'s Mem.") at 2. He was found guilty by a jury of [ Page 2]

the charges that had been lodged against him and thereafter was sentenced to life imprisonment without the possibility of parole*fn2 by the Honorable Leonard B. Sand of the United States District Court for the Southern District of New York on October 19, 2001.*fn3 Compl. ¶ 6. Al-'Owhali is currently serving his sentence in the United States Penitentiary, Administrative Maximum, located in Florence, Colorado, the "[f]ederal [g]overnment's highest security prison. . . ." Def.'s Mem. at 3.

In accordance with regulations that were promulgated on June 20, 1997, at the direction of the Attorney General, the Director of the Bureau of Prisons, or, upon proper delegation, its Acting Director, has the ability to

authorize the Warden of a federal prison to implement [Special Administrative Measures ("SAMs")] that are reasonably necessary to . . . prevent actions of violence or terrorism where the Attorney General . . . provides written notification 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) (2003). A SAM can impose various conditions and restrictions on an inmate, such as requiring that he be housed in "administrative detention" and it may place limitations on various inmate "privileges, including, but not limited to, correspondence, visiting, interviews with . . . the news media, and use of the telephone, [ Page 3]

as is reasonably necessary to protect persons against the risk of acts of violence or terrorism." Id. § 501.3(a). Typically, SAMs are imposed when "there continues to be a substantial risk that [an] inmate's communications or contacts with other persons could result in death or serious bodily injury to persons," i.e., they are designed to "prevent[] acts of violence and terrorism." Id. § 501.3(c).

Due to the nature of the crime for which the plaintiff was convicted, the Bureau of Prisons ("BOP") enacted SAMs against him, both pre-trial and post conviction, designed to lessen the potential that plaintiff could communicate with others regarding the commission of crimes that could threaten the nation's security. Compl. ¶ 7. For example, during the two years immediately prior to his trial, plaintiff was the subject of SAMs "designed to govern the special security deemed necessary by the Government and the [BOP]." Id. These SAMs were "authorized, supervised, and amended by [a federal] District Judge and were renewed every 120 days." Id. On November 15, 2002, after plaintiff's conviction, a new SAM was issued for the plaintiff, which is presently effective and is renewable annually. Id. ¶ 8. This SAM prohibits plaintiff "from having contract with other inmates and others . . . that could circumvent the SAM's intent of significantly limiting the inmate's ability to communicate . . . terrorist information." Compl., Ex. A (Notification of Special Administrative Procedures dated November 15, 2001), ¶ 1(c). The SAM also contains provisions prohibiting plaintiff from communicating with the news media, id. ¶ 4(a), and from sharing a cell or communicating with other inmates. Id. ¶ 6(a)-(b). Plaintiff alleges that the BOP has [ Page 4]

interpreted this SAM to prevent him from watching television, listening to the radio, reading newspapers, utilizing the law library, taking an English language course, meeting with a Muslim Cleric, or calling his family,*fn4 although these "are all privileges that are accorded to inmates even in [the Florence Colorado] high security prison." Id. ¶ 9. The only justification for these restrictions, plaintiff asserts, "is the prevention of communications that are deemed a threat to the national security." Id.

Despite the above alleged deprivations, the gravamen of plaintiff's challenge is not directed at the SAM that currently covers him. In fact, no relief is being sought based upon the above allegations.*fn5 Rather, plaintiff has filed this lawsuit to specifically challenge regulations promulgated by the defendant on October 31, 2001, which is codified in 28 C.F.R. Pt. 500-501. 28. Specifically, the regulation provides, in pertinent part:

In any case where the Attorney General specifically so orders, based on information from the head of a federal law enforcement or intelligence agency that reasonable suspicion exists to believe that a particular inmate may use communications with attorneys or their agents to further or facilitate acts of terrorism, the Director, Bureau of Prisons, shall, in addition to the special administrative measures [ Page 5]
imposed under paragraph (a) of this section, provide appropriate procedures for the monitoring or review of communications between an inmate and attorneys or attorneys' agents who are traditionally covered by the attorney-client privilege, for the purpose of deterring future acts that could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons.
28 C.F.R. Pt. 501.3(d); Compl. at 7.*fn6 The regulations further specify, in relevant part, that if a SAM includes a provision that would authorize the monitoring of a prisoner's communications with his attorney, the BOP must notify the prisoner of its intent prior to commencing such monitoring, "[e]xcept in the case of prior court authorization." Id. at § 501.3(d)(2). The relevant part of the regulations regarding the notice requirement provides that:

(2) . . . The notice shall explain:

(i) That . . . all communications between the inmate and attorneys may be monitored, to the extent determined to be reasonably necessary for the purpose of deterring future acts of violence or terrorism;
(ii) That communications between the inmate and attorneys [ Page 6]
or their agents are not protected by the attorney-client privilege if they would facilitate criminal acts or a conspiracy to commit criminal acts. . . .
(3) . . . To protect the attorney-client privilege . . ., a privilege team shall be designated, consisting of individuals not involved in the underlying investigation. The monitoring shall be conducted pursuant to procedures designed to minimize the intrusion into privileged material or conversations. Except in cases where the person in charge of the privilege team determines that acts of violence or terrorism are imminent, the privilege team shall not disclose any information unless and until such disclosure has been approved by a federal judge.
Id. § 501.3.

Plaintiff alleges that these regulations "are intended to and, in fact do target" him. Compl. ¶ 11. Although the SAM applicable to plaintiff did not contain any provision for the monitoring of plaintiff's attorney-client communications, id. ¶ 7, he argues that "the regulations permit, and the [p]laintiff herein is in danger of, monitoring without notice on an ex parte application to a judge." Id. ¶ 13. Plaintiff is suffering harm, he argues, because he is in the "post-conviction stage of his criminal proceedings" and the monitoring of his attorney-client communications, with or without notice, "chills the attorney-client relationship and deprives the [p]laintiff . . . of the right to discuss any aspect of his case with an attorney and receive honest advice in return." Id. ¶ 15. Plaintiff states that such monitoring, in the absence of "a judicial determination that there is probable cause to believe that the conduct of counsel falls within a recognized exception to the attorney-client privilege is unconstitutional." Id. ¶ 16. Plaintiff therefore seeks a declaration that 28 C.F.R. Pts. 501.2(c) and (e) and 501.3(c), (d) and (e) [ Page 7]

violate his Fifth Amendment right to due process and his Sixth Amendment right to the assistance of counsel. Id. at 11. He also seeks an order enjoining the defendant and his subordinates "from monitoring consultations between [p]laintiff and his attorneys without a judicial determination that there is probable cause to believe that activity is occurring that is not protected by the privilege under procedures guaranteed to protect that right." Id.

II. The Parties' Arguments

Defendant has filed a motion seeking dismissal of the complaint pursuant to Rules 12(b)(1) (lack of subject matter jurisdiction) and 12(b)(6) (failure to state a claim upon which relief can be granted). However, the essence of defendant's arguments are that this Court is without subject matter jurisdiction over plaintiff's claims because (1) plaintiff does not have standing to pursue his challenges, (2) because his claims are not ripe for judicial review, or, alternatively, (3) because plaintiff has failed to exhaust his administrative remedies.

Defendant first argues that the complaint must be dismissed because plaintiff "does not allege a past or current injury, and posits the injury on which he relies as the speculative possibility that the defendant will take a particular regulatory action against him in the future." Def.'s Mem. at 13. Thus, because the alleged injury is speculative, defendant contends that plaintiff lacks standing to advance his challenge. Id. On this point, defendant argues that to the extent plaintiff is alleging that he could be subjected to "surreptitious monitoring of his communications with counsel, that injury is entirely [ Page 8]

speculative[,]" and it is not permitted by the regulations, which require notification of such monitoring. Id. at 14. Further, defendant argues that plaintiff's claim that the regulation has a "chilling effect" on his communications with his attorney must be rejected as insufficient to establish standing in light of Supreme Court and this circuit's precedent. Id. at 19-22. Second, defendant argues that plaintiff's claim is not ripe for judicial review because the regulation he is challenging has not been implemented against him. Id. at 23. The defendant notes that under the ripeness doctrine, the Court must determine that the issue is "fit" for judicial review and that failure to grant judicial review would cause the plaintiff to suffer "irremediable adverse consequences." Id. at 28 (quoting Toilet Goods, Inc. v. Gardner, 387 U.S. 158, 164 (1967)). Defendant contends that plaintiff fails to satisfy either criterion under the ripeness doctrine and therefore this Court should not exercise judicial review of his claims at this time. Id. ...


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