I appreciate the reasoned analysis of the question here. It appears, to me, however, that John Ashcroft attempting to run roughshod all over the constitution.
This thread, affecting the 6th ammendment (and possibly parts of the 5th) his reinterpretation of the 2nd ammendment (here), and, his attack on the Oregon Assisted Suicide law (states rights problems) ([), although this was blocked (url="http://abcnews.go.com/sections/us/DailyNews/oregon_assistedsuicide011108.html"here).
I really hope that someone (Congress) informs Mr. Ashcroft just what his powers really are. The president doesn’t seem willing to.
Um… Bob? This is really a hijack, but you are aware that the Fifth Circuit has issued an opinion that makes the Second Amendment an individual right, aren’t you? Emerson ring a bell?
So are the judges of the Fifth Circuit also running “roughshod” over the Constitution? And by the way - how does expanding an indivdual right under the Constitution get characterized as “running roughshod,” anyway? Doesn’t that phrase suggest someone who is limiting civil liberty?
Now - I agree with you as far as his attack on state’s rights. But I’m curious - do you believe that the federal government should prohibit abortion, or is that also a states’ rights issue?
As mentioned above, of course, I also agree that this plan to monitor inamte/lawyer conversations is ill-advised, and will be found unconstitutional.
But I’m curious to hear your responses to my questions, Bob.
As the Court said in Lago Vista when they declined to expland Fourth Amendment protection to the woman who was arrested for a seatbelt violation, handcuffed, fingerprinted, and jailed… the Constitution does not exist to guarantee good behavior on the part of law enforcement. They saw no evidence of abuses like that becoming a national epidemic, and declined to fashion a general constitutional rule for one egregious case.
I think that’s what happened, thus far, with material witnesses. The government rarely invokes this power, and courts have not subjected it to intense scrutiny.
Narrow as it may be, that’s the state of Sixth Amendment law.
Of course. TV notwithstanding, a defense lawyer does need to know everything. Lying to your lawyer is as foolish as lying to your doctor. I’ve heard characters on The Practice suggest that knowing too much can handicap an attorney. That’s almost never the case, and believe me, 99.44% of the criminal defendants out there are not smart enough to know when it might be so. The best advice is always to tell your lawyer everything; he is then best-armed to defend you.
If you cannot do this, for fear that the government will overhear… the effectiveness of counsel is severely eroded. In fact, I would suggest that first defendant convicted after being subject to eavesdropping in this manner has an excellent appeal under Strickland, the ineffective-assitance of counsel seminal case.
I often come down on the law-and-order side of things… time spent as a PD tends to give one a deep and abiding distrust for all accused criminals. But this move transgresses reasonable boundries. It eviscerates the Sixth Amendment right to counsel.
Bricker, I’m not so concerned with the defense counsel being told every thing by the defendant. I’m concerned with the defense counsel being told anything by the defendant. A half way informed Federal prisoner is going to know that the AG claims the right to eavesdrop. That prisoner is going to figure that if the Feds might eavesdrop they will eavesdrop and will not talk to anyone, including his lawyer, especially court appointed counsel. It seems to me that even with the supposed safeguards, this policy goes a long way toward destroying any trust there might now be between accused and counsel. This is after all a bigger deal than intercepting the catcher’s signals or listening in on the opponent’s huddle.
My question is weather the 6th Amendment compels the confidentiality of attorney-client communication independent of any ethical or evidentiary rule of privilege.
In terms of Ashcroft himself, I’m not sure whether all this represents a loss of nerve over the Terror Raids or the use of the Terror Raids as a pretext to put an agenda into effect. This policy taken with the reversal of what has been Federal policy in effect since the Nixon Administration on the meaning of the 2d Amendment, together with the policy on the Oregon assisted suicide statute makes me wonder if we are not dealing with an agenda.
Minty, I agree it’s dicta, although they struggled mightly to make it appear necessary to resolve the issue.
But the point I was making is that it’s incomplete, if nothing else, to say that "John Ashcroft is running roughshod over the Constitution with his whacky interpretation of the Second Amendment, when there’s an entire federal judicial circuit that agrees with him. You may agree or disagree with the Second Amendment as an individual right, but it ain’t just Ashcroft on one side of the discussion.
So, then, John Ashcroft gets to pick the interpretation of the 2nd ammendment which he most closely agrees with (albeit the most recent) and can ignore the 9 contrary interpretations which came before?
Isn’t it likely that the 5th circuit decision will be appealed?
From what I understand, the real purpose of this is not to help prosecute terrorists, but to stop what the administration thinks is the use of lawyers to pass information between terrorist cells. They are worried that a terrorist in jail will pass a coded message to a lawyer, who will unwittingly carry it to someone else. A simple, “Call my brother Bob and tell him to ask Dad for some money for my defense” could be a code phrase. The government wants to know about it.
That said, I think this rule is horrible, and I have to say I’ve been very disappointed in Ashcroft ever since this war started. Every solution he seems to propose involves taking rights away from people. I think this is very disturbing, and validates some of the fears about the man that some of the Liberals here on the board voiced when he was selected to be AG. I argued against that at the time and defended him, but I think they were right. He’s an authoritarian who thinks that effective law enforcement overrides the rights of the people.
George Will pointed out this morning that Ashcroft made mention in a speech of 16 suspected terrorists that they wanted to apply this rule to, but to show how limited the rule would actually be claimed that the 16 suspected terrorists were less than 1/10 of 1% of the number of people they were currently detaining. If true, that means that the government is currently holding some 16,000 people without due process. Can this be possible? Does it bother anyone?
Well, they were talking about ‘detainees’ since Sept 11, which I took to mean the people they have rounded up and are being held without due process. Part of the new ‘anti-terror’ bill had a provision I believe to extend the length of time that the government could hold people in this manner.
Just another part of this whole thing that I find extremely troubling. I completely expect that these provisions will be constantly widened to include drug dealers and other undesirables under the flimsiest of pretexts.
Under the action they are not denying a suspect the right to an attorney but they are hampering the assistance the attorney can provide.
From the article
No, I am saying they potentially could run into trouble through this. If I tell my attorney information and the FBI agent investigating my case hears about it I find it hard to believe that they will just pretend they didn’t hear it then, completely independant of the information, discover it on thier own.
I am saying once they recieve the information it will be very hard to convince me that they independantly found it.
I agree with Sam, the formulation and manner of formulation should give anyone with an interest in liberty the willies.
Which is a pity as there is a kernal of real concern here. Ergo my question to those more well-learned in law than I for some ideas on how to address the genuine security issue while protecting essential liberties.
Easy. If a lawyer is acting as an intermediary between an imprisoned terrorist and his unincacerated terrorist conspirators, the lawyer is committing some sort of crime along the lines of aiding & abetting or conspiracy. I don’t believe there is any sort of attorney-client privilege when the attorney and client are engaged in criminal activities. So if John Ashcroft really had any clear indication that the lawyers were doing what he claims, he could get a warrant and bust 'em. Of course, he doesn’t have such information, which is why he wants to ignore the right to counsel on general principle.
My concern would not be the lawyers per se, but the translators. Precious few lawyers speak Arabic. Further, developing the information that this is happening (or not) strikes me as problematic. There is a real tension between security concerns and civil liberties. All the more so insofar as al-Qaeda members from overseas are coming from an organization background skilled in operating from prison. It is unclear, but it appears that jailed Gamaa, Jihad and GIA folks have indeed used prison as platforms.
So nail the translators with a search warrant instead. What’s the problem? There is no attorney-(translator)-client privilege if the purportedly privileged communication is part of an ongoing criminal conspiracy. If John Ashcroft had probable cause to believe that any such communications were occurring, he could almost certainly obtain a search warrant to listen in on the conversation. But he doesn’t have probable cause, so he’s doing an end run around the right to counsel instead.