October 2, 1992
Mr. President, in May of this year, the New York Times ran an article about a 1988 incident involving a federal prisoner by the name of Brett Kimberlin and allegations that the Bureau of Prisons had tried to silence him for political purposes. Although the article appeared almost four years after the incident, it contained information that had recently come to light in a related court case. It was the first time I had read about the Kimberlin matter in any detail, and I found it startling.
The Times reported that when Kimberlin began making allegations involving then vice presidential candidate Dan Quayle just before the 1988 election -- and the press began to pay attention to those allegations -- the Bureau of Prisons took a number of actions to silence him. The Times reported that after calls from the Bush-Quayle campaign to the Justice Department, the Director of the Bureau of Prisons Michael Quinlan took a highly unusual course of action. He personally canceled a press conference arranged by local prison officials in response to several press requests to interview Kimberlin. He then personally ordered Kimberlin placed in administrative detention, or "the hole" as it is referred to by the prisoners. Both events took place only days before the November 1988 election.
The prison released Kimberlin from detention the following day. But when he later attempted to give an interview to a group of reporters by telephone, the Bureau put Kimberlin back into administrative detention for a week, until well after the election. A month later, when the press again began to pay attention to Kimberlin's allegations, the Bureau again returned him to administrative detention.
The Times article suggested that the Bureau of Prisons had violated prison rules in its effort to silence Kimberlin. Such an allegation, if true, would violate our fundamental principle of a fair and open government.
As Chairman of the Subcommittee on Oversight of Government Management, I initiated a subcommittee investigation into the facts behind the New York Times article and the Kimberlin detentions. Let me make clear that the focus of this investigation was not to examine the validity of the allegations made by Kimberlin but solely whether, in 1988, the Bureau of Prisons and the Department of Justice engaged in improper conduct in the Kimberlin matter to advance a political purpose.
After my Subcommittee staff reviewed press accounts, public documents in a pending court case filed by Kimberlin against key officials in the Bureau of Prisons and the Department of Justice, and other information, I sent a list of questions to Mr. Quinlan, Mr. Loye Miller who headed the public affairs office of the Department of Justice in 1988, and the Justice Department itself. My questions were not answered specifically or by the person to whom they were addressed; the Justice Department responded in narrative form on behalf of all three addressees.
I responded with a letter identifying the many questions that had not been answered and requesting interviews with Mr. Quinlan and Mr. Miller. The Justice Department answered, again on behalf of both Mr. Quinlan and Mr. Miller, denying my request for interviews, but providing some additional information. The additional information did not, however, lay to rest important questions in this matter.
Those questions go to a fundamental concern: guaranteeing that the power of our federal government is not used to silence individuals for political purposes.
Without interviewing Mr. Quinlan and Mr. Miller, I can go no further in the investigation. Were these ordinary times, I would convene a Subcommittee hearing and call these individuals and others to testify under oath to the facts pertaining to the cancellation of Kimberlin's press conference and his detentions by the Bureau of Prisons.
However, these are not ordinary times -- we are in the final month of a Presidential election -- and holding a hearing would probably lead to charges of politics. That would deflect the public's attention and the attention of the agencies involved from the important substance of the issues involved. Consequently, I have decided not to hold a hearing at this time, but to present my findings as well as the outstanding questions to the Inspector General of the Department of Justice.
Mr. President, I ask unanimous consent that my letter dated today to the Inspector General and a report describing my investigation be included in the Record in full immediately following these remarks.
The report addresses four key events in the Kimberlin chronology, all flashpoints of what appears to be improper government action to isolate Kimberlin. These are: the decision by Bureau Director Quinlan on November 4, 1988, to cancel a press conference arranged by local prison officials and three separate decisions by the Bureau of Prisons on November 4, November 7, and December 22, 1988, to confine Kimberlin in administrative detention. The information we have about each of these events is based upon our review of depositions taken in the pending civil case, court pleadings and decisions, our own interviews, and the responses to our questions by the Department of Justice.
Mr. President, after reviewing that evidence and given the refusal of the Justice Department to allow interviews of Mr. Quinlan and Mr. Miller, I can only conclude that the cancellation of Kimberlin's November 4th press conference and his subsequent administrative detentions were actions taken by the Bureau of Prisons for political purposes. The primary purpose was to keep Kimberlin's allegations that he sold marijuana to Vice President Quayle in the 1970's out of the 1988 campaign. Whether these actions occurred on the independent initiative of Mr. Quinlan or other federal employees or at the request of the Bush-Quayle campaign is a question that remains unanswered.
The evidence of political considerations in the Kimberlin matter is as follows:
We know that the most senior officials in the Bush-Quayle campaign -- Jim Baker, Lee Atwater, Fred Fielding, Stu Spencer and Joe Canzeri, as well as Vice President Quayle himself -- knew about Kimberlin's allegations and his efforts to publicize them.
We know the Bush-Quayle campaign believed that the public's attention to the Kimberlin allegations could have serious consequences. Mark Goodin, the campaign's deputy press secretary, has stated in a deposition that:
"Oh, I don't think there was any doubt about what could happen. I have seen this kind of thing play out before. I made it very clear when I approached other senior officials of the campaign that it could be -- it was something that we needed to take seriously and deal with seriously because of its potential for adverse publicity."
Mr. Goodin conveyed that sentiment to the Justice Department in a conversation described in a 1989 memorandum prepared by Mr. Miller in which he states that Mr. Goodin "noted the obvious: that the closer to the Tuesday election that the story were to break, the more attention it was likely to get, and the better the chance that it could have at least some adverse effect on the Bush-Quayle chances." Stu Spencer, Quayle's campaign manager, stated in his deposition that he, too, took the Kimberlin allegations seriously because, "Late charges can be devastating."
We know that the campaign monitored the situation closely. Mr. Goodin, the campaign's key link to the Justice Department, stayed in constant touch with the Department on the Kimberlin matter. As Mr. Goodin stated in his deposition:
"Over a fairly substantial period of time, it is fair to characterize my contact with the Department of Justice as fairly close contact. ... It's certainly fair to say that I kept close tabs on the issue through the Department of Justice."
A December 1988 memorandum prepared by Mr. Quinlan for his superiors also reveals that at least one unidentified person from the campaign -- Mr. Goodin has said it wasn't him -- telephoned the Bureau directly to inquire about Kimberlin's media contacts.
We know the Justice Department, through Mr. Miller, agreed to keep the campaign informed and, in fact, kept Mr. Goodin apprised of key developments in Kimberlin's attempts to reach the press with his allegations. Mr. Goodin then kept Mr. Baker and other top campaign officials apprised of the key developments.
We know that the campaign, the Justice Department and the Bureau of Prisons fielded frequent calls from the press in the final days of the 1988 election about the Kimberlin allegations.
We know that Mr. Quinlan became personally involved to a highly unusual, if not unprecedented, degree in the decisions made with respect to Kimberlin: first, he personally ordered the cancellation of the press conference arranged by the prison; second, he personally ordered Kimberlin placed in administrative detention; and third, he requested and reviewed transcripts of Kimberlin's telephone calls during this period.
We know that Mr. Quinlan was aware of and concerned about Kimberlin's contacts with the media. The December 1988 memorandum he prepared for his superiors began, for example, by stating that, "As you know, Kimberlin's allegations ... have received additional media attention in the last several days." Later in that memorandum, Mr. Quinlan pointed with satisfaction to the fact that his earliest decision in the Kimberlin matter, to allow an interview by NBC, resulted in "no news outlet carr[ying] the story in the pre-election period."
We know that there are serious gaps and inconsistencies in the Bureau's explanations of the substantive basis for its actions in the Kimberlin matter:
First, Mr. Quinlan canceled the November 4th press conference arranged by local prison officials by citing a purported policy against inmate press conferences, which local prison officials had never heard of, has never been put in writing, and was not applied by the Bureau to monthly press conferences held by a former Member of Congress incarcerated in federal prison in 1986 and 1987.
Second, Mr. Quinlan justified placing Kimberlin in detention on November 4th by claiming he'd received information that Kimberlin feared for his safety from other inmates, despite a contemporaneous finding by the prison that no such inmate threat existed, and despite inconsistent and questionable evidence of how that information reached the Director late at night in an out-of-town hotel.
Third, the Bureau's decision to return Kimberlin to detention on November 7th, the day before the election, relies on unclear documentation and suspect timing, lacks an identifiable authorizing official, and has been justified by inconsistent explanations.
Fourth, the Bureau's explanations for placing Kimberlin in detention on December 22nd were found unconvincing by an independent hearing officer who determined that Kimberlin was innocent of the rule infractions charged.
Key individuals must be directed to explain these inconsistencies, contradictions and gaps in the Kimberlin story. Because the Justice Department has refused to permit Subcommittee interviews of two of these individuals, Mr. Quinlan and Mr. Miller, and a Subcommittee hearing is not feasible at this time, I've taken the investigation as far as I can. That is why I have asked the Inspector General to become involved.
If the conclusion of the Inspector General is similar to mine -- that the Bureau took these actions against Kimberlin to isolate him for political purposes -- the Inspector General should identify the federal officials involved and recommend appropriate disciplinary action.
CHAIRMAN, SUBCOMMITTEE ON OVERSIGHT OF GOVERNMENT MANAGEMENT
ON ACTIONS BY BUREAU OF PRISONS IN RESPONSE TO
MEDIA CONTACTS WITH PRISONER BRETT KIMBERLIN
October 2, 1992
In June 1992, as Chairman of the Subcommittee on Oversight of Government Management, I directed my Subcommittee staff to undertake an investigation into the facts behind an article published in the New York Times on May 3, 1992. The article claimed that, in the weeks just prior to the 1988 election, the Bureau of Prisons took action to silence a federal prisoner, Brett Kimberlin, who had been making allegations to the press about then vice presidential candidate Dan Quayle.
The investigation has reviewed press accounts, pleadings and sworn depositions in a pending court case, materials provided by the Justice Department, and other information. The Justice Department has refused to permit requested interviews of two key individuals, Michael Quinlan, Director of the Bureau of Prisons, and Loye Miller, Director of the Office of Public Affairs of the Justice Department in 1988.
Based on the information reviewed and having been denied by the Justice Department the two requested interviews, I can only conclude that the Bureau of Prisons did, in fact, take action against Brett Kimberlin. for political purposes by canceling a press conference on November 4, 1988, and placing him in administrative detention on November 4, November 7, and December 22, 1988, the primary purpose of which was to keep Kimberlin's. allegations concerning Mr. Quayle out of the 1988 campaign.
This report sets forth the information that forms the basis for this conclusion.
Approximately one month before the 1988 presidential election, Brett Kimberlin, who has been incarcerated in federal prison since 1979, talked to National Public Radio reporter Nina Totenberg about his allegations that he sold marijuana to Vice President Dan Quaylein the 1970's. Shortly thereafter, Ms. Totenberg, without disclosing Kimberlinas the source, asked the deputy press secretary of the Bush-Quayle campaign, Mark Goodin, to comment on these allegations. When Mr. Goodin declined to comment without more information on who was making the allegations, Ms. Totenberg provided a signed affidavit from Kimberlin.
Mr. Goodin has stated he immediately notified the top officials in the campaign, including Jim Baker, overall campaign chairman; Lee Atwater, overall campaign manager; and Stu Spencer, campaign manager for Mr. Quayle. Mr. Goodin has stated that Mr. Baker told him to "find out" who Kimberlin was, and when the campaign's research discovered that Kimberlin was a convicted felon, Mr. Goodin continued to refuse comment to Ms. Totenberg.
According to Mr. Goodin, when he informed Ms. Totenberg that he had discovered Kimberlin's prison status and declined further comment, her response convinced him that she was nevertheless preparing to publicize Kimberlin's allegations. He again notified top campaign officials. Mr. Goodin has testified that, at that point, Mr. Baker decided Mr. Quayle had to be informed. When told of the Kimberlin allegations, Mr. Goodin said that Mr. Quayle flatly denied them. Mr. Goodin reported that denial to Ms. Totenberg on an "off the record" basis to convince her not to run the story, but, according to Mr. Goodin, he still wasn't sure what she would do.
After a few days passed, Mr. Goodin has stated that he began to receive calls from other reporters repeating the Kimberlin allegations. He guessed that Kimberlin `was becoming restless' and had begun contacting other media outlets. Mr. Goodin has stated that he called the Justice Department to find out how Kimberlin was getting through to the press.
Mr. Goodin called the Justice Department because the Bureau of Prisons is under its authority. He has stated that the deputy director of the Department's office of public affairs, Deborah Burstion-Wade, told him that federal prisoners have the right to use the telephone and may contact the press. Mr. Goodin has stated that he expressed surprise, but accepted her explanation.
On Thursday, November 3, 1988, five days before the presidential election, NBC News asked the 1500-inmate prison at El Reno, Oklahoma, where Kimberlin was then incarcerated, for an on-camera interview with Kimberlin. The prison offered to schedule the interview on Wednesday of the following week, its regular scheduling day for media interviews. Because that day would be after the election, however, NBC asked that the interview take place earlier, before the election.
The prison called the Bureau's public affairs office in Washington, D.C. for guidance. The chief of that office, Jim Jones, has stated that he met with Bureau Director Quinlan and Mr. Quinlan's chief of staff, Tom Kane, about NBC's request. He also spoke with Frank Keating, the Associate Attorney General of the Justice Department with direct management authority over the Bureau of Prisons. Mr. Keating's deputy, Cary Copeland was also contacted and testified later that, while the Bureau didn't call him about every inmate interview, it did "[o]bviously because of the political sensitivity here. We had a candidate for vice president, the election is 5 days away, very obvious sensitivity."
In a memorandum prepared for his superiors, Director Quinlan has stated that someone from the Bush-Quayle campaign also called the Bureau to inquire about the interview, although the Bureau has not disclosed who made that call, who took it, or what was said.
The Bureau decided to instruct the prison to schedule the interview for the next day. In a subsequent memorandum, Director Quinlan gave three reasons: (1) unless granted, NBC had threatened to air the Kimberlin allegations "with the additional twist that the Bureau was preventing the interview until after the election to protect the Quayle candidacy";(2) Kimberlin had a "fundamental lack of credibility," and (3) delaying the interview created the "likelihood of unnecessarily precipitating a `cover-up' story just before the election." Director Quinlan also noted with satisfaction that the Bureau's judgment to allow the interview was "borne out by the fact that no news outlet carried the story in the pre-election period."
The NBC interview took place the next day, November 4, 1988. Although it was not broadcast, it did create a local stir when a small Oklahoma paper published the fact that the interview had taken place earlier that day. This article resulted in several new requests to the prison for interviews with Kimberlin.
The prison attempted to respond to the new interview requests. The acting warden, Greg Hershberger, who'd been with the Bureau for about ten years, decided that the best way to handle the requests was to schedule a single group interview that night in the prison's visiting room.
Mr. Hershberger set the group interview for 7:00 that evening. He told the prison official who handled press matters, Rodger Benefiel, to inform those interested in attending. He called his warden, Tom Martin, who was out of town for the weekend to tell him what he'd decided. The warden has testified that his reaction at the time was that, it "seemed to be a way of ... appropriately utilizing the resources of the institution, as opposed to having a lot of individual interviews there. It was a way of handling the situation." He expressed no opposition. Mr. Hershberger also notified the Bureau's regional office, which expressed no opposition. He has stated that he consciously decided not to alert the Bureau's Washington office, because that was out of his "chain of command"; he instead left it to the regional office to take what action it would in terms of notifying Bureau headquarters.
About 10 to 15 individuals indicated that they would attend the prison's group interview that night, just four nights before the election.
Then word of the prison's plan started getting back to Washington. Reporters contacted the campaign and the Department of Justice public affairs office. The campaign's deputy press secretary, Mark Goodin, called the Justice Department to determine whether the prison was, in fact, going to hold a group interview. He has stated that, "I knew that I was about to be overtaken by events, and if this guy had a press conference, it was very likely that I was going to have to respond to the [Kimberlin] allegation[s] whether I liked it or not."
Mr. Goodin says that when he was told by Ms. Burstion-Wade, deputy director of public affairs at the Justice Department, that inmates can participate in press conferences, he responded, "I just never cease to be amazed." He then asked to speak to the public affairs director, Loye Miller, who also said it was within an inmate's rights to participate in a group interview. Goodin has stated that he responded, "I'm amazed," and later, "I am bowled over."
Mr. Goodin has stated that he asked Mr. Miller to keep the campaign informed of developments in this matter and that Mr. Miller agreed. Mr. Goodin and Mr. Miller have both stated that they later discussed the fact that a press conference could affect the election. In a 1989 memorandum, Mr. Miller stated that, in one conversation, Mr. Goodin "noted the obvious: that the closer to the Tuesday election that the story were to break, the more attention it was likely to get, and the better the chance that it could have at least some adverse effect on the Bush-Quayle chances." Mr. Goodin has testified:
"Oh, I don't think there was any doubt about what could happen. I have seen this kind of thing play out before. I made it very clear when I approached other senior officials of the campaign that it could be -- it was something that we needed to take seriously and deal with seriously because of its potential for adverse publicity."
Mr. Miller and his deputy, Ms. Burstion-Wade, each called the chief of the public affairs office at the Bureau of Prisons, Jim Jones, to inquire about the press event. Mr. Jones had already learned of the planned event from a reporter. Other top officials at the Justice Department, including the Attorney General's chief of staff, Robin Ross, were also informed.
Mr. Goodin alerted Mr. Baker and other top officials in the Bush-Quayle campaign to the possibility of the press event. In response, Mr. Quayle's campaign manager, Stu Spencer, began making press calls to challenge Kimberlin's credibility, but testified later that he got "no guarantees" from the press not to run the story. He testified that he made these press calls because, "Late charges can be devastating."
In the meantime, Mr. Jones sent a beeper message to Bureau Director Quinlan, then on a plane to Chicago. After landing, Mr. Quinlan called his office and was told of the prison's plan. Mr. Quinlan and Mr. Jones decided that the press event should be canceled.
Mr. Quinlan then personally called the Bureau's regional director, J.D. Williams, and told him to cancel the press event. Mr. Williams called the prison. According to the acting warden, Mr. Hershberger, it was almost time for the group interview, and he asked Mr. Williams to reconsider. Mr. Williams agreed to do so, hung up the phone and apparently consulted with Mr. Quinlan or Mr. Jones once more. Mr. Hershberger has testified that Mr. Williams then called back with the verdict: "It's off. Cancel it."
The prison official assigned to deal with the media, Rodger Benefiel, told the 10 to 15 reporters waiting in the prison parking lot. When one demanded to film a public statement on why the interview had been canceled, Mr. Benefiel read a statement drafted by the acting warden. It said that the press conference had been canceled due to "unforeseen developments." When asked in a recent deposition what those unforeseen developments were, Mr. Benefiel said they were the order from Bureau officials to cancel the event.
Meanwhile, word of the cancellation got back to others in Washington who were interested. Mr. Miller in the Justice Department said word reached him within an hour or two of his first learning that a press conference was going to be held. Mr. Goodin at the campaign has stated that Justice alerted him by "late afternoon." The acting warden has reported learning of the cancellation a short time before the press conference was scheduled to begin at 7:00 p.m. It is unclear whether Mr. Goodin and Mr. Miller knew of the cancellation before the acting warden did. Mr. Miller has said that he also alerted Ms. Totenberg, who had inquired about the press event earlier. Kimberlin has said he was told of the cancellation about 8:30 that night.
At various times, the Bureau has given two different reasons for canceling the prison's press event. In some depositions, Bureau personnel have implied that the press event was disruptive to the prison and had to be canceled due to logistical problems. However, since the prison officials most closely involved have testified that there was no significant disruption to prison routine, that explanation is unconvincing.
The primary justification that Mr. Quinlan, Mr. Jones and other Bureau officials have offered is the flat statement that inmate press conferences are against Bureau policy. The Justice Department has stated in a letter to my Subcommittee that it has been "unable to identify any occasion on which an inmate `press conference' was held in a federal prison."
There are four facts which refute this position. First, there is no written Bureau regulation or guideline that prohibits press conferences or even indirectly discusses them. The Bureau subsequently proposed such a written policy as part of a larger regulation, but then withdrew the rule without taking action on it.
Second, a November 1988 affidavit by former Congressman George Hansen, filed in unrelated litigation, copy attached, states that, during 1986 and 1987, the Bureau of Prisons allowed him to hold monthly press conferences in a federal prison in Virginia.
In his affidavit, Mr. Hansen states that, "Holding these press conferences was not merely approved, but was actually suggested, by the Federal Bureau of Prisons to accommodate press interest in me ...." He states that "[s]ometimes over ten reporters and several television cameras were present.'
A third fact that contradicts the Bureau's explanation is that the El Reno and regional prison officials were unaware that a "no press conference" policy existed. Tom Martin, who had been with the Bureau for almost 30 years, eight of them as warden of El Reno prison, testified that during his term the prison had housed some notorious inmates and "we were not exactly novice in terms of dealing with high visibility inmates." Yet he had not known of the policy against inmate press conferences.
The Bureau's regional director, J.D. Williams, had been with the Bureau over 20 years. He also knew of the press event beforehand, yet expressed no opposition to it nor did he alert the prison to the alleged "no press conference" policy.
The acting warden, Mr. Hershberger, who had been with the Bureau about 10 years, has stated that he was unaware of the policy at the time and has yet to see it in writing.
Finally, Mr. Miller and his deputy at Justice initially advised the Bush-Quayle campaign that inmates are allowed to participate in press conferences. Deposition testimony indicates that they obtained that information from the Bureau. The Bureau's general counsel, Clair Cripe, has also been quoted in the press as saying inmate press conferences have been allowed in the past and are not against law or Bureau policy. The Hansen monthly press conferences provide proof of that position.
Yet Director Quinlan and the Justice Department maintain that the Kimberlin press conference, which was set up by the El Reno prison officials, was canceled because inmate press conferences are not allowed. The available evidence does not support that claim.
FIRST DETENTION -- Late Evening, November 4th
The same night the press event was canceled, Kimberlin was removed from the general prison population, placed in administrative detention, and his access to the media was halted.
Being placed in administrative detention is described by El Reno prisoners as getting thrown "in the hole." It consists of a prisoner's being confined in a particular cellblock with restricted privileges. Telephone use, exercise and visiting privileges are curtailed. Administrative detention removes prisoners from the general prison population to assess or protect their safety, investigate rule infractions, prepare for transfers to other facilities, or for other reasons. According to the Bureau, placement in administrative detention is not a punitive action. Punishment for prison rule violations is handled instead by placing prisoners in "disciplinary segregation," although at El Reno in 1988, prisoners subject to administrative detention were housed in the same cellblock as those subject to disciplinary segregation.
By November 1988, Kimberlin had been in prison approximately nine years without disciplinary problems. But on November 4, 1988, shortly after the press conference was canceled, he was taken from his cell and thrown in the hole.
When asked to explain the reason for placing Kimberlin in administrative detention, the Justice Department and Bureau of Prisons have provided the following facts.
Bureau Director Quinlan, whose actions directly caused Kimberlin's detention, has stated that sometime between 10:00 and 11:00 p.m. on November 4th, while attending an ABA function in Chicago, he received information that Kimberlin had expressed fear for his safety. Federal prison policy states that any inmate who fears for his or her safety may be placed in administrative detention pending an investigation of possible threats. Receiving that information thus gave Mr. Quinlan the justification he needed to order Kimberlin's detention.
Mr. Quinlan has never related who gave him this alleged information, when or in what form. But the Department of Justice has indicated that, upon receiving it, Mr. Quinlan personally telephoned the Bureau's regional director, J.D. Williams. In his December 1988 memorandum prepared for his superiors, Mr. Quinlan has stated that, "My instructions were to take appropriate steps to ensure the inmate's safety and to investigate the purported danger; it was clearly understood that this information would result in Kimberlin being placed in administrative detention ... pending an assessment of any possible threat...."
Within the hour of Mr. Quinlan's call, Kimberlin was seized in his cell by six guards, handcuffed, marched to the detention unit in the cold, strip searched and placed in a small cell. Kimberlin's housing order stated: "NO! MORE CALLS FOR THIS INMATE/per Lt. Garvue" -- a note which has been described by El Reno officials as unusual.
There is no evidence that any Director of the Bureau of Prisons had ever before personally ordered an individual inmate into administrative detention. Tom Martin, the prison warden, has expressed surprise at any involvement by the Director since, in his words, Mr. Quinlan "leaves that kind of thing up to the local facility." In fact, Mr. Martin has stated that administrative detention decisions are usually the province of the on-duty supervising lieutenant at the prison -- in most cases, not even wardens are involved. Yet Kimberlin's circumstances rose through the Bureau's ranks all the way to the Director, leading Mr. Quinlan to make a late-night call from an out-of-town hotel to get Kimberlin placed in administrative detention, and, in contradiction to his own 1988 memorandum, is apparently now claiming it was a local decision.
The Justice Department made that latter claim in a September letter to the Subcommittee which stated that, "there was no order or instruction [by Mr. Quinlan or Mr. Williams] that Mr. Kimberlin be placed in administrative detention. ... The actual decision to place Mr. Kimberlin into administrative detention pending an evaluation of the degree of risk facing him was made at the local level by Acting Warden Hershberger."
Yet Mr. Hershberger has stated under oath that he did not order Kimberlin's detention. In fact, after the press event was canceled, Mr. Hershberger has stated that he ordered his staff to go out on the prison compound to assess any threat to Kimberlin from other inmates. The staff and he explicitly concluded that there was insufficient threat to justify Kimberlin's being confined. Mr. Hershberger then went home. Mr. Benefiel, the prison official who actually received the call from the regional director, was trying to finish up after the canceled press event so he, too, could go home. He has stated under oath that he did not independently decide to place Kimberlin in administrative detention; he merely "passed on the request from the regional director" to do so. In fact, both he and Mr. Hershberger have agreed under oath that, in light of the prison's own investigation into Kimberlin's safety that night, absent the instruction from the regional director (which was initiated by Mr. Quinlan), Kimberlin would not have been placed in detention at all.
In contrast to the Justice Department's current position, in a June 19, 1989 letter issued by the Bureau of Prisons denying tort claims filed by Kimberlin., Carolyn Sabol, Regional Counsel, speaking for the Bureau states:
"Mr. Quinlan did request that Mr. Kimberlin be placed in administrative detention late in the evening of November 4, 1988 ....'
In short, despite the Justice Department's latest claim, the evidence is overwhelming that it was Mr. Quinlan's personal action that was the direct cause of Kimberlin's detention on November 4th.
There are also a number of unanswered questions about this detention. First is how Mr. Quinlan came to believe that Kimberlin feared for his safety. The Justice Department has indicated that Kimberlin told Ms. Totenberg over the telephone at some time on November 4th that he feared for his safety, that Ms. Totenberg conveyed this to Mr. Miller at the Justice Department, and that somehow Mr. Miller conveyed that information to Mr. Quinlan.
Contemporaneous documents and subsequent deposition testimony also use the Totenberg-Miller conversation as the primary justification for Kimberlin's detention on November 4th. A memorandum drafted by Mr. Benefiel, the prison official who got the call from the regional director to place Kimberlin in detention, cites that conversation. The actual detention papers, completed by a Lt. Wingo, cites that conversation. Jim Jones at the Bureau has stated under oath that both Mr. Miller and Mr. Quinlan told him that Mr. Miller had spoken directly to Mr. Quinlan about his conversation with Ms. Totenberg, and that Mr. Quinlan then called the regional director to detain Kimberlin on that basis.
Yet the evidence for this chain of events is weak and contradictory. First, the prison's own review of all of Kimberlin's telephone conversations on November 4th did not find any call in which Kimberlin made such a statement. Second, Ms. Totenberg has stated in a sworn affidavit that she never communicated that information to Mr. Miller, the alleged source for Mr. Quinlan. Third, Mr. Miller, who insists that Ms. Totenberg did give him that information, says she did so after she learned Kimberlin had been placed in administrative detention and was calling Mr. Miller to demand his release. Finally, Mr. Miller denies ever speaking to Mr. Quinlan about Kimberlin, period.
When asked to explain these discrepancies, the Justice Department merely states in its September letter to the Subcommittee that, "Just when and how that information reached Director Quinlan., who was then in Chicago, remains obscure."
Another unanswered question is who placed the "NO! MORE CALLS order on Kimberlin's detention papers, which was unusual at El Reno and appears intended to cut off Kimberlin's access to the media. Lt. Garvue, who is credited with the no-more-calls order, cannot recall giving it nor can he explain the basis for it. Lt. Wingo, who completed the detention papers that night, has stated that Lt. Garvue did not have the authority to issue that order, and it would have "had to come from higher up." Yet Mr. Benefiel, Mr. Williams, Mr. Jones and everyone else deposed so far has denied providing that instruction.
The instruction was overridden the next day anyway when Ms. Totenberg called Mr. Miller at the Justice Department and Fred Fielding at the campaign and threatened to run the Kimberlin story unless Kimberlin were allowed to speak with her on the telephone to prove he was unharmed. Mr. Miller conveyed that threat to the Bureau, and Jim Jones instructed the regional office to arrange the call.
A third question pertains to why the investigation that was conducted the next day, on November 5th, to assess the alleged threat to Kimberlin's safety was handled in such an unusual way. The Special Investigative Supervisor placed in charge of the investigation was Lt. Jim Monk. He has stated under oath that his normal procedure when a third party alleges that an inmate fears for his safety is to interview the third party, the inmate, other inmates and the prison staff. But he took none of those steps here. Instead, he was instructed by acting warden Hershberger to review all of Kimberlin's telephone calls from October 31st through November 4th to determine whether Kimberlin ever expressed a fear for his safety. Lt. Monk reviewed 35 calls over that five-day period and never located such a statement. After he concluded his analysis, Kimberlin was released from detention at about 7:30 that evening. The Bureau has been unable to determine, however, who actually ordered Kimberlin's release.
The discrepancies, contradictions and confusion in the explanation of the first decision to place Kimberlin in administrative detention are evidence that it was not a straightforward decision made by professionals. Rather than protecting Kimberlin's safety it appears to be an effort to isolate Kimberlin for political purposes.
Shortly after Kimberlin's release from detention the first time, the Bureau learned of his plans to contact an assembled group of reporters by telephone on November 7, 1988. Kimberlin was then isolated in a second administrative detention for a week, starting the day before the election and minutes before his scheduled telephone call.
After Kimberlin had been released from his first detention on Saturday evening, November 5th, he spent the next 24 hours trying to arrange his own press conference. His plan was to convince a group of reporters to assemble a room at the Mayflower Hotel in Washington, D.C. on Monday, November 7th, at 10:00 a.m. and, at the appointed time, to telephone and present his story with the help of a speaker phone.
Because acting warden Hershberger had instructed Lt. Monk to monitor all of Kimberlin's telephone conversations that weekend, the Bureau learned of Kimberlin's plan. There was no instruction, by the way, that Lt. Monk listen for threats to Kimberlin'ssafety; Mr. Hershberger did not provide him with any instruction other than to listen to all of Kimberlin's calls.
Federal prisons have the capability to monitor and record all telephone calls by inmates. Inmates are warned of this capability and, at the El Reno prison, signs by the telephones remind prisoners they are being monitored. El Reno's system permits the prison both to review past calls and to listen contemporaneously to ongoing conversations.
On Sunday evening, November 6, 1988, two days before the election, Richard Acuff, an associate warden at El Reno who was serving as acting warden while Mr. Hershberger was called away on a family emergency, stopped by the monitoring facility.
Mr. Acuff has stated that he regularly stopped by the monitoring facility to listen to prisoners' calls on a random basis. He has stated that he did so on Sunday night to get a sense of what was going on in the prison and to see what the prisoners thought about the upcoming election. During that visit, he listened to a conversation in which Kimberlin was urging a reporter to attend the hotel press conference the next morning. Lt. Monk informed him about Kimberlin's plan.
Mr. Acuff left the prison and walked to the nearby residence of prison warden Tom Martin, who had returned from out of town that Sunday night. Mr. Acuff has stated that he was leaving town for the next three days and wanted to be sure that the warden was informed of Kimberlin's plan to contact reporters at the Mayflower Hotel the next morning at 10:00 a.m.
By Monday morning, word of the hotel press conference had also reached Washington as reporters contacted both the Bureau of Prisons and the Department of Justice. At 9:45 on Monday morning, November 7th, 15 minutes before his scheduled telephone call to the press, Kimberlin was once again seized, handcuffed, strip searched, and placed in administrative detention. The log was marked: "No Phone Calls." He remained there for a week.
Like the first detention, there are a number of unanswered questions about this decision by the Bureau to place Kimberlin in administrative detention.
First, no one has admitted to making the decision to put Kimberlin in administrative detention a second time. The prison warden, Tom Martin, was in his office Monday morning, but doesn't recall giving the order or being consulted about it. He has stated that such decisions are usually made by a supervising lieutenant. However, Lt. Monk denies making the decision, as does Mr. Benefiel. On that particular Monday morning, Messrs. Hershberger and Acuff were both out of town.
A press article has quoted Mr. Miller as saying that Director Quinlan ordered the second detention. Mr. Quinlan is quoted in the same article as saying that he was aware of the detention but did not "personally" make the decision -- unspecified local prison officials did. The Justice Department has claimed that Kimberlin's second detention was not even known to Washington officials beforehand.
Second, no one has admitted to issuing the "No Phone Calls" instruction. Kimberlin's access to the media was clearly halted during his week in detention yet, again, no Bureau official can recall issuing or being consulted about the order that limited Kimberlin's telephone use.
Third, the Bureau's justification for detaining Kimberlin raises substantive issues. The Bureau now insists that the sole reason for his November 7th detention was because, three days earlier, on November 4th, Kimberlin had made an unallowed third party telephone call to the Dukakis campaign. On November 4th, Kimberlin had, in fact, attempted to telephone the campaign. When the Dukakis campaign refused to accept his collect call, Kimberlin telephoned a friend who called the campaign on his behalf and forwarded Kimberlin's call. The Dukakis campaign then took a message from Kimberlin for the person he was trying to reach. This third party call was allegedly discovered on Monday morning by Lt. Monk who completed an "incident report" by 9:30 a.m.; this time is marked on the document. Fifteen minutes later, Kimberlin was thrown into administrative detention.
This alleged explanation for Kimberlin's second detention is suspect for several reasons.
There is the question of timing. Lt. Monk had completed reviewing Kimberlin's November 4th calls on November 5th, yet allegedly didn't discover the unallowed call until November 7th. It is unclear why he either failed to notice the call two days earlier or why he was again reviewing Kimberlin's calls that Monday morning. Even more surprising is that, within 15 minutes of his filing the incident report at 9:30 a.m., the prison processed it, located Kimberlin and placed him in administrative detention by 9:45 a.m. -- all prior to his scheduled 10:00 a.m. call to the Mayflower Hotel.
There is the question of the administrative detention order itself. The only explanation given for Kimberlin's detention is the single word, "Investigation." The order doesn't say what was being investigated or who was doing it. And there is no evidence that any investigation was then underway. Lt. Monk has stated under oath that, unlike Kimberlin's first detention, he performed no investigation during Kimberlin's second detention. He explained that he had already completed his investigative work when he filed the incident report.
There is the question of the severity of the detention decision. Although third party calls are against prison rules, because they interfere with a prison's ability to monitor its prisoners and raise concerns about prison security and commissions of crime, federal regulations classify third party calls as one of the least severe rule infractions a prisoner can commit. A telephone call to the Dukakis campaign is not the type of call that raises security or criminal considerations. Administrative detention is not required in such circumstances.
For those reasons, the claim that Kimberlin's November 7th detention was caused by his November 4th third party call to the Dukakis campaign is simply not convincing.
Another factor is that there have also been other explanations offered by the Bureau of Prisons and Justice Department for this detention. The first focuses on the hotel press event. A December 1988 press article in the Legal Times quotes Mr. Miller as stating that, "The Bureau of Prisons caught on that [Kimberlin] was going to hold another press conference, so they put him back in." A memorandum written by Mr. Miller in October 1989, states that the Bureau had told him that Kimberlin[[dotaccent]]:
"had indeed tried to set up such a press conference. When they overheard this they took steps to prevent that and, in fact, Kimberlin was back in detention. It was certainly my understanding at the time that it was this attempt to hold an unauthorized press conference which directly caused him to be segregated once again. But it may well be that the cause, instead, was his attempt to get hold of the Dukakis campaign. Both of these gambits were clearly in violation of prison regulations and either or both were good cause for detention."
Similarly, the Bureau of Prisons stated in its June 1989 letter denying Kimberlin's tort claim that he was placed in detention a second time "as a result of" his attempts to "use the telephone to set up a press conference in Washington, D.C. that morning ... [in] violation of our rules and [to] protect the integrity of institutional security." This document makes no mention of the third party call to the Dukakis campaign.
Another explanation advanced by Bureau officials cites third party calls in connection with the hotel press conference. Bureau Director Quinlan, in a December 1988 letter to Senator Biden, stated that it was a third party call on "Monday, November 7 that led to Kimberlin's detention. He made no mention of the call to the Dukakis campaign on Friday, November 4th. In an August 1990 letter to Congressman Kastenmeier, Mr. Quinlan wrote that Kimberlin was detained because he made third party calls to arrange the hotel press conference, again making no mention of the November 4th call to the Dukakis campaign. Mr. Quinlan's chief of staff, Tom Kane, has also stated that his recollection of the reason for Kimberlin's second detention was his use of third party telephone calls to arrange the hotel press conference.
Yet the Justice Department has claimed in a letter to the Subcommittee that the hotel press conference was completely unrelated" to the decision to place Kimberlin in detention a second time. The sole reason for Kimberlin's second detention on November 7th, according to the Justice Department, was Kimberlin's third party call on November 4th.
Finally, on November 7th, after Kimberlin's second detention had begun, the warden mailed to Director Quinlan, personally, seven cassette tapes containing recordings of Kimberlin's telephone conversations over the previous few days. Mr. Hershberger and Mr. Acuff have stated under oath that this was an unusual occurrence. Mr. Quinlan's chief of staff, Tom Kane, has stated that Mr. Quinlan's receipt of such tapes was "uncommon." We don't know why Mr. Quinlan requested these tapes or what was done with them.
Kimberlin's second detention ended after a hearing on November 14th. That hearing found him guilty of making the third party call to the Dukakis campaign, then ordered his release. That same day, the United States Parole Commission reversed an earlier, preliminary decision making Kimberlin eligible for parole in 1993. It set back his parole date five years, to 1998.
A month later, on December 19, 1988, an extensive article on Kimberlin's allegations and treatment by the Bureau of Prisons appeared in the Legal Times. On December 2Oth, a short piece appeared in the New York Times. On December 21st, Kimberlin provided a telephone interview to a New York radio show which requested a response from the Bureau. That same day, USA Today, which then produced a television show, ran a story which featured split screen photographs of Kimberlin and Director Quinlan.
The prison resumed surveillance of Kimberlin during this time. Deposition testimony indicates that prison Lt. Gale Williams recorded Kimberlin's telephone conversations on at least December 20th and 21st, and in some cases listened to them contemporaneously.
At some point on December 2lst, Jim Jones, chief of the public affairs office in the Bureau's headquarters in Washington, asked his chief of communications, Richard Phillips, to obtain an immediate recording of at least some of Kimberlin's calls. Mr. Phillips has stated under oath that he doesn't know why Mr. Jones wanted the recording, but "[t]here was a great deal of media interest" in Kimberlin at the time. He also stated that this was the only time he has been asked to obtain a recording of an inmate's conversations.
After obtaining permission from Warden Martin, Mr. Phillips contacted Lt. Gale Williams that same day. Lt. Williams played a tape of several Kimberlin conversations over the telephone, which Mr. Phillips recorded on his end. Mr. Phillips' recording also picked up the voices of himself and Lt. Williams as they discussed the calls. Several of the conversations were between Kimberlin and his attorney. At one point, Mr. Phillips indicated that he had taken notes, had to get the "attorney call ... into the director," and asked Lt. Williams to send him by overnight mail cassette tapes of the conversations. Lt. Williams agreed.
The next day, on December 22, 1988, the prison seized Kimberlin from his work detail, handcuffed him, marched him to the administrative detention unit, strip searched him, and isolated him a third time. The housing log stated: "No phone calls unless permitted by team (per R Benefiel)." The charge was that Kimberlin had made a third party call to his attorney.
Again, no one has admitted issuing this detention order, and Mr. Benefiel can't recall giving the no-phone-calls instruction. The justification for the detention is even flimsier than for the second detention. According to letters provided by Kimberlin's attorneys to the prison, the findings of the hearing officer and information provided to the Subcommittee by the Justice Department, Kimberlin had called his attorney's office and the receptionist, without informing Kimberlin, had forwarded his call to the appropriate attorney who was in another building. A subsequent Bureau hearing not only cleared Kimberlin of any guilt, but criticized the prison for sending the matter out for a formal review.
On the same day that Kimberlin was thrown in "the hole" for the third time, Bureau Director Quinlan sent a memorandum to his superior, Associate Attorney General Keating, describing the "media activity" in the Kimberlin case. He began the memorandum by stating: "As you know, Kimberlin's allegations ... have received additional media attention in the last several days."
Based on the information reviewed and having been denied by the Justice Department two requested interviews, I can only conclude that the Bureau of Prisons did, in fact, take action against Brett Kimberlin for political purposes by canceling a press conference on November 4, 1988, and placing him in administrative detention on November 4, November 7, and December 22, 1988, the primary purpose of which was to keep Kimberlin's allegations concerning Mr. Quayle out of the 1988 campaign.
As to each of these events:
(1) Press Conference. At the time, the Bureau of Prison's alleged "no inmate press conference" policy was either non-existent or selectively enforced and was used by the Bureau as a pretext for canceling the press event scheduled by the prison on November 4, 1988.
(2) First Detention. Director Quinlan's actions were the direct cause of Kimberlin's placement in administrative detention on November 4, 1988. Director Quinlan's determination of the need to place Kimberlin in administrative detention on November 4th to protect him from other inmates contradicted the prison's own analysis of Kimberlin's safety needs and served as a pretext for placing Kimberlin in detention in order to limit his access to the media.
(3) Second Detention. After learning of Kimberlin's plan for a telephone press conference at the Mayflower Hotel on November 7, 1988, at 10:00 a.m., the Bureau used the information that Kimberlin had made an unallowed third party telephone call to the Dukakis campaign on November 4th as a pretext for returning him to detention on November 7th at 9:45 a.m., in order to prevent his telephone call to reporters and otherwise limit his access to the media.
(4) Third Detention. After several media stories in December 1988 describing Kimberlin's allegations and treatment by the Bureau of Prisons, the Bureau used information that Kimberlin had made a third party telephone call to his attorney as a pretext for returning him to administrative detention a third time on December 22, 1988, again in order to limit his access to the media.
The information available to date leaves a number of specific questions about the Kimberlin matter unanswered:
-- Who from the Bush-Quayle campaign called the Bureau of Prisons on November 3, 1988, to ask about the NBC interview, and what was said?
-- Was the "no inmate press conferences" policy in existence on November 4, 1988; why hasn't the Bureau ever placed that policy in writing; and why wasn't it applied to the monthly press conferences held by former Congressman Hansen?
-- Who told Mr. Quinlan on November 4th that Kimberlin feared for his safety, and when did that occur?
-- Who released Kimberlin on November 5th?
-- Who ordered Kimberlin's second detention on November 7, 1988, and what was the Bureau's Washington office involvement, if any?
-- Why did Lt. Monk write up the incident report on Kimberlin's unallowed third party call to the Dukakis campaign on the morning of November 7th rather than the afternoon of November 5th, and how was the prison able to process that incident report within 15 minutes?
-- Who ordered Kimberlin's third detention on December 22, 1988, and what was the Bureau's Washington office involvement, if any?
-- Who limited Kimberlin's right to use the telephone during each of the three detentions and why?
-- What was the reason for heightened monitoring of Kimberlin's telephone calls; why were tapes of those calls sent to Director Quinlan; and what was done with the information?
-- What was the extent and purpose of all contacts by the Bush-Quayle campaign with either the Bureau of Prisons or the Department of Justice on this matter?
These specific questions cannot be answered until, at a minimum, interviews with Mr. Quinlan and Mr. Miller are conducted. Interviews of top officials from the 1988 campaign and the Justice Department may also be needed. Without this additional information, the evidence accumulated to date indicates that, in 1988, the Bureau of Prisons canceled the prison's press conference and repeatedly placed Kimberlin in administrative detention for political purposes.