NEW RULE ON MONITORING ATTORNEY-CLIENT CONVERSATIONS ANGERS CIVIL RIGHTS ADVOCATES

News that the Department of Justice has promulgated a rule to allow it to listen in on conversations between attorneys and their clients in detention has appalled and angered attorneys and civil liberties advocates across the country.  The rule, which was announced on October 31, went into effect immediately, and applies to any person in federal custody, regardless of whether they have been charged with a crime, and regardless of the federal agency detaining them. 

Before this rule, the conversations of federal detainees could be monitored, but not those with their attorneys, because of the importance of attorney-client confidentiality.  Now, with a simple certification from the Attorney General that there is a “reasonable suspicion” that a detainee might be using communications with his or her attorney to “facilitate acts of terrorism” conversations and other communications between attorneys and their clients can be monitored without a court order. 

The Justice Department says the new rule is a necessary part of the battle against terrorism.  Attorneys say it will force attorneys to violate their ethical obligation to keep communications from clients confidential, and infringes on the constitutional right to counsel.  In addition to claims that the new regulation violates the constitutional right to counsel, attorneys also say that it violates the right to be free of unreasonable searches and seizures.  The Justice Department maintains that the right to counsel will not be negatively effected because there will be notification whenever a conversation is monitored, and that unless the information so gathered points toward an act of terrorism, it cannot be revealed without the approval of a federal judge. 

Sen. Patrick Leahy (D-VT), already upset over the refusal of the Justice Department to release detailed information about those detained in the investigation, sent a letter to Attorney General John Ashcroft expressing his concern “at what appears to be an executive effort to exercise new powers without judicial scrutiny or statutory authorization.”

So far, according to the Justice Department, only 13 people are subject to these new surveillance procedures. 

A number of rights advocates are predicting that this matter will ultimately be settled by the Supreme Court.