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Ammon Bundy, left, and brother Ryan Bundy, remain in custody in Multnomah County , facing a Sept. 7 trial on federal charges of conspiring to impede federal workers at the Malheur National Wildlife Refuge through intimidation, threats or force, and possession of a firearm in a federal facility. (Multnomah County Sheriff's Office)

A federal judge Monday ordered the Multnomah County sheriff's office to return Ammon Bundy to the downtown Portland jail, so he can be housed near his brother Ryan Bundy as they prepare a joint defense in the pending Oregon standoff case.

Calling the federal conspiracy case against the Bundys and their co-defendants an "exceptional case'' and the Bundys' ties an "exceptional relationship,'' U.S. District Robert E. Jones issued the order after a morning hearing.

While county jail officials prefer not to house co-defendants together, the judge said he had the authority to make an "exception'' to the jail's rules. Ammon Bundy had been moved last week from the downtown jail to Inverness Jail in Northeast Portland.

The judge also said he would make sure any sheriff's deputies who are standing guard by the Bundys as they make calls from jail to their lawyers do not share what they may have inadvertently overheard with anybody else. Ammon Bundy had complained that deputies standing by him were listening to his calls.

"These things are important that you have the privilege to speak unfettered to your counselor,'' Jones said. "I'll see that it's done.''

Ryan Bundy, who provided the judge with a copy of the U.S. Constitution, wants the court to go further and place a protective order on his recorded jail calls, which would prevent the sharing of the calls with the FBI or other law enforcement.

Ryan Bundy believes his monitored jail calls are being shared with the government so prosecutors can learn his trial strategy and are "intrusions into his privacy,'' his standby legal counsel Lisa Ludwig told the court.

He submitted as an exhibit a March FBI report, which revealed that federal law enforcement in Nevada had been monitoring outgoing calls that co-defendant Ryan Payne placed from the Multnomah County Detention Center between late January and late February.

Payne faces federal indictments in Oregon and Nevada, as do the Bundy brothers. They're accused of conspiring to prevent federal officers from working at the Malheur National Wildlife Refuge in Harney County this winter during a 41-day armed occupation. They're also accused of conspiracy, assault and other charges stemming from a 2014 standoff with federal officers outside the Bundy Ranch in Nevada.

Ryan Bundy, who has chosen to represent himself in the Oregon case, wants to interview witnesses, potential expert witnesses and legal advisers, as well as communicate with his brother and his brothers' lawyers without having those conversations monitored, Ludwig said.

"There isn't any justification for 'wholesale disclosure' of his communications,'' with law enforcement, she said.

"This phone line doesn't allow me to gather facts for my case,'' Ryan Bundy said.

He held up a large envelope that he said jail staff had opened, even though it was marked "legal mail'' on the outside. A book on federal criminal rules of procedure and codes has been denied to him three times in jail, he said.

Federal prosecutors didn't take a position on the motion, saying it's a matter between the defendants and the county jail. The judge said he'd issue a written ruling this week.

If Jones grants Ryan Bundy's protective order, and rules that his recorded jail calls are not to be shared with law enforcement and prosecutors, it could set a precedent for other cases, Ludwig said later.

Multnomah County Assistant Counsel Carlos J. Calandriello countered that the county has an obligation to ensure the safety and security of all those in the jail, not just for the staff "but for the Bundys themselves.'' Inmates don't have an expectation of a Fourth Amendment right against the monitoring of their phone calls or letters, Calandriello argued.

"The law is well settled that the privacy rights of prison and jail inmates are 'severely curtailed' by virtue of their incarceration,'' Calandriello wrote in his response to Ryan Bundy's motion.

Jail inmates are cautioned that recorded calls could be shared with law enforcement, and anything they say could be used against them.

Inmates' criminal defense attorneys must notify the jail or its telephone system provider, Securus, of the phone numbers they wish to have registered as confidential, so that calls to those numbers are not monitored or recorded. If calls from the jail are made to any other number, the automated system will record the calls after warning listeners that the call is being recorded, Calandriello said. Continuing to speak after the recording is considered a "waiver'' of the attorney-client privilege, he said.

The mere fact that mail to an inmate is marked "legal'' doesn't mean it's necessarily legal mail, the county's lawyer said. Only mail that is received from an attorney or his or her assistants is not opened by the jail, Calandriello said.

"Somebody saying it's legal mail doesn't make it so,'' Jones agreed.

Ryan Bundy called the county's assertion in its written response that he's able to call his brother, who had been housed at Inverness Jail since last week, "a falsehood.'' He said he tried to call Ammon Bundy on July 8 but was prevented.

Ryan Bundy argued that he's not asking for special privileges but that his constitutional rights to a fair trial be upheld. "I believe I'm being impeded and violated at every turn,'' he said. "I have not committed any crime, your honor. I am not guilty. ...Yet we're being treated as though we are guilty.''

Ludwig sat between the two brothers in court Monday morning. Ammon Bundy's lawyer Marcus Mumford, of Utah, listened to the hearing on speaker phone.

Ammon Bundy said he and his brother plan to seek their release from custody pending trial. "I don't want to waste too much energy talking about jail concerns when we're seeking pretrial release,'' he told the judge.

"Keep in mind with a Nevada hold,'' Jones responded, "there's not a lot that can be done.''

Moments earlier, the judge ordered co-defendant Jason Patrick, who does not face prosecution in Nevada, to be released to his mother and sister pending trial.

Ammon Bundy continued, "I shouldn't be punished because the government seeks to prosecute simultaneously'' in two different states.

"My question is at what point does a person lawfully lose his or her rights?" Ammon Bundy asked.

Jones gave a hypothetical: If someone is accused of killing another person or is an alleged terrorist, should that person not be jailed pending trial?

Ammon Bundy said he'd agree that jail would be appropriate, but added, "In our situation, we're certainly not that.''

His brother Ryan Bundy suggested that federal prosecutors Ethan Knight, Geoffrey Barrow and Craig Gabriel "be placed in jail cells next to me'' so they face the same conditions he and his brother face as they prepare for a Sept. 7 trial.

"I would think that would only be fair,'' Ryan Bundy said.

Jones noted that he's allowed the Bundy brothers to meet together with their lawyers or standby counsel in the courthouse, monitored by U.S. marshals. They've held two meetings but will be allowed additional ones, the judge said.

-- Maxine Bernstein

mbernstein@oregonian.com

503-221-8212

@maxoregonian