New BOP regulations already in effect
Washington, DC (November 9, 2001) -- The National Association of Criminal Defense Lawyers has warned its members that a new Bureau of Prisons regulation allows their conversations with clients to be monitored and in some cases monitored without notice to the attorney or client. NACDL is also asking its members and other criminal defense lawyers to contact the NACDL national office if they receive notice or become aware that the government is eavesdropping on their client conversations or reading their client mail.
The new regulation, already in effect on an interim basis, allows monitoring of attorney-client communications if the Attorney General claims to have a "reasonable suspicion" that a particular inmate might use communications with his attorney to further acts of terrorism. The regulation calls for prior notice to attorney and client, but also refers to exceptions in cases of prior court authorization.
"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 also pointed out 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."
NACDL will assist its members in challenging the new regulations through all available legal means.
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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 many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 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.