The Attorney General’s office has announced that it is asserting the right to “monitor” communications between people detained for terrorist related activities (whatever those might be) and their lawyers. The claim of right is based on the well-recognized rule that lawyer-client communication about toward future unlawful behavior is not privileged. In the past this rule has been the basis for the lawyer revealing the communication without violation of his duty to his client. Now, and for the first time as far as I know, the Government claims the right to eavesdrop on the lawyer-client communication its self. As I understand the news story General Ashcroft’s spokesman has said that the whole thing is lawful because it will only be done when the AG, or his designee, has “reasonable suspicion” that the communication will concern FUTURE terrorist activity, only with notice that monitoring is going on and because there will be a fire wall of some sort that will keep things overheard in the monitoring from being learned by prosecutors.
To all this I say: Balderdash.
The 6th Amend. right to counsel is fundamental to the system of criminal justice established in the US and I think throughout the West. The AG’s little scheme to defeat future terrorism effectively eviscerates the right to counsel. Simply put, that right depends on full, free and candid exchange between accused and counsel. That sort of exchange will not take place in a setting where the Government is claiming the right to be a silent participant in the conversation. What sort of full, free and candid exchange can be expected when the first thing the lawyer has to say is that the Government might be listening.
The basis for deciding what conversation may be eavesdropped is so vague and broad as to be no ascertainable standard at all. Just what is reasonable suspicion that some unprivileged statement will be made? No one knows. Is there any review of the AG’s determination that he has reasonable suspicion that an unprivileged statement will be made? Not that I know of.
Anyone who has been involved in the criminal defense business knows that the claim of a firewall between eavesdropper and prosecutor is a sham. Anything known to the eavesdropper will sometime, somehow be passed along to the prosecutor. One way or another a suspect subject to eavesdropping will find his own words thrown in his face.
What all this effectively does is force a criminal suspect to choose between the right to counsel and the right against self incrimination and effectively deprives him of both rights. When that happens we might as well abandon our claim of equal protection and due process and simply reinstate Star Chamber and the administration of the Lieutenant Generals because we will have sacrificed our most precious birth right to authoritarian hysteria.