FC: Justice Department will spy on attorney-client conversations

From: Declan McCullagh (declanat_private)
Date: Fri Nov 09 2001 - 08:30:21 PST

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    [Another reason to rely on technology to protect your rights (as a
    general rule; I hardly think the 1,100+ detainees have smuggled 
    crypto-hardware into their jail cells) rather than the weak,
    politically-malleable shield of the law. --Declan]
    WASHINGTON (AP) - Prosecutors seeking to hold people they
    suspect were in the early stages of terrorist plots may turn anew
    to a very old weapon - the Civil War-era law on sedition.
    Last week, prosecutors cited the rarely invoked law in the case
    of a student being detained in New York, and hinted they might make
    fuller use of it in the aftermath of the Sept. 11 attacks. [...]
       By George Lardner Jr.
       Washington Post Staff Writer
       Friday, November 9, 2001; Page A01
       The Justice Department has decided to listen in on the conversations
       of lawyers with clients in federal custody, including people who have
       been detained but not charged with any crime, whenever that is deemed
       necessary to prevent violence or terrorism.
       Attorney General John D. Ashcroft approved the eavesdropping rule on
       an emergency basis last week, without the usual waiting period for
       public comment. It went into effect immediately, permitting the
       government to monitor conversations and intercept mail between people
       in custody and their attorneys for up to a year at a time.
       The move, which the Justice Department said was necessary "in view of
       the immediacy of the dangers to the public," stunned defense lawyers
       and civil libertarians. They assailed it as an unconstitutional attack
       on the right to counsel and, in the words of American Civil Liberties
       Union official Laura W. Murphy, "a terrifying precedent."
       The monitoring of attorney-client conversations is the latest in a
       series of extraordinary law enforcement measures the government has
       taken in response to the Sept. 11 terrorist attacks on New York and
    Power Grab Allows Government Eavesdropping on
    Inmate-Attorney Conversations
    Contact: Gabe Rottman
    Friday, November 9, 2001
    (202) 675-2312
    WASHINGTON - Calling it an unprecedented power grab completely at odds with
    the Constitution, the American Civil Liberties Union today said it
    vehemently opposes the new Bureau of Prisons regulation allowing the
    government to listen in on conversations between prison inmates and their
    legal counsel.
    The right to an effective and vigorous defense is an absolute, said Laura
    W. Murphy, Director of the ACLU Washington National Office.  This is a
    terrifying precedent - it threatens to negate the keystone of our system of
    checks and balances, the right to a competent legal defense.
    The regulation removes all judicial review from the eavesdropping, allowing
    the government to listen in any time the Attorney General believes there
    exists reasonable suspicion that a conversation between an inmate and
    counsel has any connection to terrorist activity.  Murphy said that this
    would discourage inmates from having full and open conversations with their
    own defense attorneys about the facts of the case, information which is a
    prerequisite for good legal advice.
    The new regulation appeared in the Federal Register on October 31 along with
    a number of other changes in the current rules governing the Bureau of
    Even though the Department of Justice claims to protect inmates Sixth
    Amendment right to assistance of counsel in this new regulation by
    establishing a firewall within the department to prevent prosecutors from
    getting their hands on privileged information, Murphy questioned the
    departments trustworthiness.  She pointed out that the Department of
    Justice just successfully petitioned Congress to remove the firewall between
    intelligence and criminal investigations, a key check on law enforcement
    Ironically, the new regulations come at the same time as the Administration
    is seeking to repeal the McDade-Murtha Law, a measure that was passed in
    1996 in response to questions of professional misconduct by government
    attorneys.  Its repeal would allow federal prosecutors to follow a far more
    lax set of ethical standards than defense attorneys.
    Civil liberties advocates also fear that the regulation could provide
    innocent inmates a disincentive to volunteer information to their defense
    counsel that could potentially clear their name.
    If an suspects sole alibi is potentially damaging, but unrelated to the
    alleged crime, he or she will obviously be hesitant to whisper this little
    secret directly in the governments ear, Murphy said.  Each and every
    person in this country must given the constitutional right to private
    consultation with legal counsel.
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