Is this a necessary law enforcment measure to combat terrorism, as the Justice department claims that
?
What is to prevent this “taint team” from revealing what they hear? How did this rule come into being? Does the Justice Department have the power to make such a rule? How are these conversations recorded, monitored, and filed? Who has access to them? What is the probable cause procedure for determining who should be monitored? What is to prevent this power from being expanded into a dragnet of all federal inmates and foreigners?
Sua, Jodi, others…did the Sixth Amendment just disappear?
On one hand, I do believe there is a genuine security issue here. Not insomuch as I believe many if any attorneys would knowingly or willingly pass coded messages. Not insomuch as I believe many translators would. However in the regard to the translators, I do think you have a security issue here.
On the other hand, this has very, very disturbing over-tones.
The fact that it very well may destroy the case against the suspect, will be completely inadmissible, and probably involve criminal charges being brought against those that revealed the information.
Okay, let me say up front that I think the rule is probably unconstitutional on its face, and I am troubled by it as well. Let me also say that BRICKER is IMO the best person to answer this, since his background is in criminal defense. That said, it’s not quite as cut-and-dried as it first appears.
First, the Sixth Amendment says you have the right to assistance of counsel in certain judicial proceedings and under certain circumstances (such as being charged with a felony). The right to counsel under other situations (like custodial interrogation) arise under the Fifth Amendment, not the Sixth. I am not sure how the Sixth Amendment right to counsel plays out regarding people who are detained but not yet charged, or regarding people who are not U.S. citizens and therefore do not enjoy all our constitutional privileges. But the argument made in the article is that by putting the defendant in a position where he or she cannot freely communicate with his or her counsel, you are in effect depriving him or her of counsel. I think that’s a pretty persuasive argument.
Second, there is a difference between “privileged” and “private.” Attorney-client privilege doesn’t mean that you have an absolute right to communicate with your attorney in complete privacy on all occasions. It means that your communications, as “privileged,” cannot be compelled to be disclosed in legal or judicial proceedings. This is not the same as saying that you have an absolute right to privacy in such conversations (over and above whatever other privacy right you might have), which is what the defense attorneys appear to be arguing: not that the Feds can’t use the material in court, but that they can’t listen in in the first place. This I’m not sure about. I think the Feds could argue that if they can provide sufficient grounds to overcome the defendant’s right to privacy, like under existing surveillance or wire-tap laws, that their activities should be allowed regardless of any claimed privilege, in part because the material is not to be used in court against the defendant.
But the answer to this is the precise one given in the article: Knowing that you are speaking in the presence of a non-privileged third-party (as the Feds would be) destroys the privilege, because you didn’t expect the conversation to be privileged and confidential, it won’t be. Therefore, how could an attorney speak freely regarding any matter, knowing not that the attorney-client privilege is subject to being abridged, but that under such circumstances it could never exist in the first place? How can you claim the privilege for conversations you knew weren’t confidential? You can’t. So there’s no frank conversation, and no effective counsel, and you have a major Sixth Amendment problem.
I would imagine that someone will be moving for an injunction or a writ of prohibition to enjoin the government from acting pursuant to this “rule.” I think that injunction should be granted, because I think the rule is unconstitutional. I also think, as an aside, that this highlights why it is important to adhere to the rulemaking process, as boring as it might sometimes be. If this rule was subject to the review and public hearings it should have been, I doubt very much they could have ever managed to pass it.
IMHO, the Supremes will smite them at their 1st opportunity. I doubt any trial judge will allow any such conversation into evidence. And if they are not intending to prosecute offenders, what the hell are they doing? They may attempt to use it against a 3rd party.
It’s going waaay overboard. They should be ashamed. Ya think Ollie North would have been OK with the Fed’s listening in on him and his lawyer?
I hope this isn’t too OT, but how would this goto the supreme court, can anyone challenge it, or does a person who was effected by the law have to sue?
Basically, the suit would be to throw out pre-trial evidence based on the fact that it was derived from privileged information.
Note: the right of counsel does not bar the government from using the privileged information to help prevent a crime from occuring, just from prosecuting on the basis of it.
What they’re trying to accomplish sounds desirable. They think a terrorist in custody might continue to participate in a conspiracy to commit terrorism, using his lawyer to communicate with the group. One reads about crime kingpins who allegedly run their syndicates from prison cells. Why couldn’t a terrorist do the same thing?
Preventing such communication might conceivably prevent another disaster like the WTC. However, this seems far-fetched IMHO. I don’t the end justifies the means.
And the best way for Bricker to answer it is to let Jodi post a superb analysis, and then sagely agree.
Just a couple of points - the Sixth Amendment right to counsel is applied at all “critical stages” of a criminal prosecution. A criminal prosecution commences with a charge. Someone who is detained but not charged ordinarily cannot look to the Sixth Amendment.
That general statement contemplates a situation in which detainment is relatively quickly followed by either a charge or a release. Lengthy periods of detainment, accompanied by some sort of judicial review, also constitute a “critical proceeding” - since, on their face, they would determine the length of the detainment.
The Fourteenth Amendment applies the guarantees of the Sixth Amendment to citizens and non-citizens alike, as long as they are “subject to the laws” of the states and the United States. In general, then, there is no meaningful distinction to be made between a citizen and a non-citizen with respect to the right to counsel at all critical stages of a criminal prosecution.
From a tactical standpoint, however, the plight of the non-citizen is (not surpringsly) considerably worse. Nearly any criminal conviction can be grounds to revoke residency permits. Moreover, the court is under no obligation to inform a defendant of this fact when, say, accepting a guilty plea. Normally, the acceptance of a guilty plea involves an incredibly detailed colloquy with the defendant… “You understand that by pleading guilty you are giving up the right to a trial?” “Yes.” “And that at this trial, which you are giving up, the Commonwealth would have to prove each and every element of the crime against you beyond a reasonable doubt?” “Yes” “And you understand that the jury’s verdict would have to be unanimous as to your guilt before you were convicted?” and so forth and so on. I’ve never seen a true guilty plea on television; the damn things can can take ten minutes of the judge reading and the accused responding monosyllabically.
In any event, absent from the long and detailed list is any mention by the judge of “collateral consequences.” This includes, for the non-citizen, the possibility that the INS will use the conviction as grounds to revoke his visa or residency.
A non-citizen ultimately has no constitutional right to remain in this country. While the government must allow them due process, in the case of persons already here illegally, that amounts to simply following their own procedures, whatever they determine them to be. A person in this country illegally is subject to detention, because they have broken the law. A person here legally, who breaks other laws, is subject to removal for that reason. To the extent these procedures involve judicial review, the accused have a Sixth Amendment right to counsel. All of this is to say that although the Sixth Amendment guarantees of counsel theoretically apply to citizens and non-citizens alike, from a tactical position, non-citizens have a much weaker hand.
As to the speculation that the fact that the government’s listening destroys the privilege… I agree, but perhaps there’s a way around it.
I’ve mentioned before that if a lawyer’s files are searched, the court will often appoint a special master. He will review the client files, and decide what is responsive to the search warrant, and what is not. This prevents law enforcement officers from puncturing client confidentiality for hundreds of clients not involved with the matter under investigation.
Although this involves work-product, more than privileged conversations, the principle here is that the review by the special master extends any privilege to him; it does not breach it. Similarly, if the government “taint team” is viewed in this way, passing on to the actual law enforcers only material not shielded by privilege anyway, then it could be argued that the privilege extends to them. There are plenty of situations in which non-lawyers are bound by privilege: non-lawyer staff, paralegals and so forth, do not take a conversation out of privilege. Interpreters, if the attorney and client do not share a common language, are necessary for an effective communication and do not destroy privilege.
That view of the “taint team,” frankly, is not one I’d be prepared to defend tooth and nail without at least an advisory opinion from the bar. But it’s a possible solution to the problem of privilege.
This does not address, however, the tactical value of such information. The problem with disclosure of such communications is not merely the evidentiary one of lacking privilege, but the practical one that gave rise to the attorney-client privilege in the first place. Without a way to disclose, in private, the complete facts of your case to your lawyer, you cannot receive an effective defense. I would not be comforted merely knowing that the communication was inadmissible; my fear would be that the government could use the information it overhears indirectly, to build a stronger case against me. No one is talking (as yet) about a use-immunity standard to hold the government to. It also concerns me that the communication might implicate as-yet-unindicted consprirators - who cannot vicariously assert MY privilege against anything.
of being terrorists?
If so, the wording doesn’t mention it. This is probably being done to those with a Middle-Eastern “look and feel” but there seems to be nothing stopping the feds from doing the same to anyone under suspicion of having committed a federal crime.
I assume that, for now, this rule is being used against those of Middle-Eastern origin. Given the type of government that the majority of them are used to (and possibly fled from) I doubt they will speak to the lawyer at all.
The use of the “taint team” seems to be the equivilent of the feds saying “trust me, I work for the government” and, speaking personally, wouldn’t reassure me in the slightest.
Here’s hoping the legal establishment jumps on this with both feet.
You must have standing to commence an action at law.
The purpose of a court is to resolve a real controversy. It’s very difficult for a court to undertake a theoretical review - you cannot say, “I object to this procedure because one day, I may be detained and wish to speak to my lawyer privately.” You must be able to say, “I am detained, I spoke to my lawyer, and the government eavesdropped.”
There are some cases in which the court will undertake to declare that certain laws are unconstitutional - even then, a party must appear and say, in essence, “I am planning on doing X, but this law prevents me from doing so.” A person cannot say, “I am planning on committing a crime and being locked up, and planning on the Attorney General deciding I fit this category.”
If a suspect/suspect’s lawyer aren’t told they are being listened in on, but are isn’t it a catch 22? You can’t sue until you are in “standing”, but you can’t tell when that happens since it is happening outside your knowledge.
I think the law will stand becuase although it is going agianst the founding fathers intent but not agianst the actual law.
I think that the Feds are backing themselves into a corner. Think about this, an suspect while speaking to his lawyer reveals the location of the body. This information is privledged but the police are aware of it. Even if they find the body independantly they leave the door open to appeal on the grounds of breaking of attorny-client privledge.
treis, are you aware of specifically what the “actual law” contains? I assume you are, or you’d never post such a statement, right?
Good - because I’m very curious which “actual law” you meant. As you are certainly aware, federal privilege law and state law may not be coextensive, and of course each state varies slightly from its sister states as well. So what did you mean, exactly? Did you mean substantive federal holding, in light of Erie R. Co. v Tompkins? (As, of course, discussed in Republic Gear Co. v. Borg-Warner Corp.? The cite is 381 F.2d 551, 555-556 n.2 (2nd Cir. 1967).
If the suspect is aware that a third party is listening, the conversation is not privileged.
If they find the body independently, on what basis would an apellate court invoke attorney-client privilege and reverse a verdict? Are you suggesting that some sort of transactional immunity exists once a suspect tells his lawyer something – that once the communication is made, even an independent discovery of the information is useless?
Or are you merely suggesting that it would be very hard for the government to prove they got their evidence independently? By the way, what standard of proof should apply? Must the government show the provenance of their evidence by probable cause? Preponderance? Clear and convincing? Beyond a reasonable doubt? As you’re no doubt aware, such a problem arises for the government already, if they prosecute a use-immunity case.
Thanks for your attention to these questions. I await your analysis eagerly.
Bricker,I realize that there is a problem here with the characterization of the basis on which the eavesdropped detainee is detained. The detainee might be held on an actual criminal charge, as an immigration violator or as a material witness. Under a narrow interpretation the 6th Amendment right to counsel may be applicable only to the person held on criminal charges and not to the person held pending deportation or the person held as a material witness. As to eavesdropping on detainees to whom the 6th Amendment does apply, do you see a violation of the right to counsel unrelated to the attorney-client privilege question? It seems to me that just as soon as the Government eavesdrops on lawyer-client conversations the 6th Amendment right to counsel is rendered meaningless. If there is an analogy it would be the promulgation of rule that said that in criminal cases the defendant lawyer was not permitted to call witnesses. If the defense attorney cannot have a full and candid discussion with the accused the defense attorney cannot offer the full and vigorous to which the defendant is entitled and which is the obvious purpose of the Amendment.
