Dave Eberhart, NewsMax,com
Tuesday, Jan. 1, 2002

Although Ashcroft has said the eavesdropping would occur only in cases where the communication could "facilitate acts of terrorism,” and it now applies to only 16 detainees, the American Civil Liberties Union, the American Bar Association, the National Association of Criminal Defense Lawyers and 15 other groups want Ashcroft to rescind his order authorizing the attorney-client eavesdropping.

In papers filed with the Justice Department late last month, the coalition of 18 styled the eavesdropping as "an unprecedented frontal assault on the attorney-client privilege and the right to counsel guaranteed by the Constitution.” The new rules first appeared in the Federal Register on Oct. 31.

The groups also voiced concern that the order is not limited to foreigners, not subject to judicial review, and an individual need not be formally charged with a crime before his conversations with counsel are recorded.

Client and Attorney Advised in Advance

But Ashcroft deflected criticism, pointing to the fact that nothing gleaned from the eavesdropping can be used against a detainee, and, furthermore, the detainee and the attorney would be advised in advance if their conversations are to be monitored.

Papers filed with Justice aside, before any initiative against the new regulations can move into a court of law, a detainee or a lawyer representing a detainee must be advised of government plans to eavesdrop and then publicly complain about the fact.

So far, that has not happened – not even in the case of Zacaris Moussaoui, the first person indicted in the Sept. 11 attacks. Moussaoui was charged with conspiring with Osama bin Laden and his al-Qaeda to murder people in New York, the Washington area and Pennsylvania.

Consequently, the National Association of Criminal Defense Lawyers (NACDL) is asking its members and other criminal defense lawyers to contact the national office if they receive notice that the government is eavesdropping on their client conversations or reading their client mail.

"Rules and codes of professional responsibility are very clear: an attorney cannot communicate with a client when confidentiality is not assured,” said NACDL President Irwin Schwartz. "And there can be no effective representation without communication. The client is stripped of his Sixth Amendment right to counsel.”

Schwartz emphasized that the U.S. Supreme Court has recognized that the attorney-client privilege is the oldest of the three generally recognized evidentiary privileges, the other two being husband-wife and priest-penitent. "The federal government has no business eavesdropping on these conversations, absent a court order.”

Meanwhile, just as in the case of the military tribunals, public opinion polls indicate that Americans are not troubled greatly by the potential eavesdropping.

In further recent statements, Ashcroft has explained that, when and if such monitoring of attorney-client communication is used, no information obtained will be referred to prosecutors, or disclosed to any government authorities – unless violence is imminent.

"Information will only be used to stop impending terrorist acts and to save American lives,” Ashcroft explained.

Read more on this subject in related Hot Topics:

Al-Qaeda

Bush Administration

War on Terrorism

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