Attorney-Client Confidentiality Waived in Rule

The Wall Street Journal©
Copyright (c) 2001, Dow Jones & Company, Inc.

Friday, November 9, 2001
By Ann Davis
Staff Reporter of The Wall Street Journal

The right of a client to communicate confidentially with his lawyer is a sacred tenet of the U.S. legal system. But when some of the more than 1,000 detainees rounded up during the Justice Department's terrorism investigation confer with their attorneys, they could soon find a government agent listening in.

In an extraordinary development that has defense lawyers up in arms, the Justice Department has quietly put into effect a new federal rule giving the government authority to monitor communications between people in federal custody and their lawyers if the attorney general deems it "reasonably necessary in order to deter future acts of violence or terrorism." The rules covers both conversations and mail. The Justice Department estimates it will apply to about 100 inmates who present a "national security risk."

The rule, which attracted almost no notice when it was published Oct. 31 in the Federal Register, states that such a measure is necessary because federal authorities may have good reason to believe that people arrested for terrorist activities will pass messages through their lawyers or lawyers' staff to terrorist collaborators on the outside.

The rule says that lawyers and clients generally will be notified if the government intends to monitor their conversations or correspondence. Nevertheless, Irwin Schwartz, president of the National Association of Criminal Defense Lawyers, calls the rule an outrageous repudiation of one the oldest privileges recognized in U.S. "This is Big Brother going too far," says Mr. Schwartz, whose organization plans to assist lawyers in challenging the rule in court. He argues that the rule may even jeopardize the constitutional right of criminal defendants to counsel. Because lawyers are bound by professional rules to maintain clients' confidences, he says, "this rule would mean lawyers have to stop speaking with their clients who are in custody. That means you can't possibly represent someone effectively if you can't talk with him."

The Federal Register notice says the monitoring will be done by a special "privilege team" and a "firewall" will be established between that team and prosecutors. Only "disclosures necessary to thwart an imminent act of violence or terrorism" will be made to investigators or prosecutors, the rule says, adding that any other disclosures would require approval by a federal judge.

Some legal experts say if the government gives clear advance notice of monitoring, courts are likely to uphold the measures. "There's no question that the government's appproach to attorney-client privilege here might threaten the adequacy of the detainees' legal representation. But that is a price that a court might find is justified because of the emergencies we're now facing," says Fordham University School of Law professor Daniel Richman, a former prosecutor in New York.

Justice Department spokeswoman Mindy Tucker declined to say whether officials had already begun monitoring attorney contacts with detainees; she pointed out that the information gleaned from its monitors "can't be used in the criminal prosecution that is ongoing at the time. The purpose of this action is to prevent terrorism."

The federal Bureau of Prisons is seeking public comment on the rule through Dec. 31, leaving open the possibility that there might be changes. But the government has put the rule into effect even before the comment period is up, because of national security concerns. "It is imperative that the Department have the immediate ability to impose special administrative measures," says the Federal Register notice, issued by Attorney General John Ashcroft.

There has long been an exception in the law that says communications between lawyer and client aren't privileged if the attorney is being used, even unwittingly, to further a crime. But Laura W. Murphy, director of American Civil Liberties Union's legislative office in Washington, says the new rule gives the government authority to break the privilege without having to prove to a judge that authorities have evidence of possible criminal intent by an inmate.

Prior to this, the Bureau of Prisons was allowed to monitor conversations by visitors other than attorneys when the inmate was suspected of using those communications to further terrorist actions. But conversations with attorneys were always private.

Timothy McVeigh, who was executed for his role in the Oklahoma City bombing, had confidential conversations with his lawyer, according to Mr. Schwartz of the criminal defense lawyers group. So did Wadih el Hage, who was convicted earlier this year on charges of conspiring with Osama bin Laden to kill Americans, leading to the bombing of U.S. embassies in Africa in 1998, according to his lawyer, Joshua Dratel. While the FBI reviewed every letter Mr. Hage sent and the prison monitored conversations with his wife and children, Mr. Dratel says, "there was not a single instance" where prison officials claimed that Mr. Hage's discussions with his lawyer were furthering terrorist activity.

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL’s 10,000-plus direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling more than 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.



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