Broad Coalition Calls on Attorney General to Rescind Assault on Attorney-Client Confidentiality

American Civil Liberties Union
Press Release – 20 December 2001

Broad Coalition Calls on Attorney General
to Rescind “Unprecedented Frontal Assault”
on Attorney-Client Confidentiality

FOR IMMEDIATE RELEASE
Thursday, December 20, 2001

WASHINGTON — In comments filed today with the U.S. Department of Justice, the American Civil Liberties Union and a broad coalition of 18 civil rights, privacy, law enforcement and religious groups called on Attorney General John Ashcroft to rescind his order authorizing law enforcement to listen in on the confidential attorney-client communications of persons in federal custody.

The groups, which include the National Black Police Association, the World Organization Against Torture and the American Immigration Lawyers Association, called the move “an unprecedented frontal assault on the attorney-client privilege and the right to counsel guaranteed by the Constitution.”

“The Attorney General’s actions set a terrifying precedent that threatens to remove a cornerstone of our system of checks and balances — the right to a competent legal defense,” said David Fathi, a staff attorney with the ACLU’s National Prison Project and the main author of the comments. “What’s worse, the regulations remove all judicial review, giving the Attorney General unfettered authority to strip clients and their counsel of this ancient and fundamental right.”

In separate comments also filed today, the National Association of Criminal Defense Lawyers emphasized that the new regulations would discourage detainees from having full and open conversations with their own defense attorneys about the facts of their case — information which is a prerequisite for good legal advice.

The new regulation, which appeared in the Federal Register on October 31, essentially directs the Bureau of Prisons to facilitate the monitoring or review of communications between detainees and attorneys.

The eavesdropping will be authorized without court review and based solely on the Attorney General’s determination that there exists “reasonable suspicion” that a conversation between a detainee and counsel “may” be used to further “acts of terrorism.” No definition of these vague terms is provided.

Rachel King, a legislative analyst on criminal justice issues with the ACLU’s Washington National Office, noted that the provisions apply not only to convicted prisoners but to all persons in the custody of the Department of Justice, including people who have not been convicted of a crime and are presumed innocent, as well as material witnesses and immigration detainees who are not accused of any crime.

Ultimately, she said, the regulations are unnecessary because existing law permits the monitoring of attorney-client communications when a judge issues a warrant upon a showing of probable cause.

“Unfortunately, the Attorney General continues to treat the courts as an inconvenient obstacle to executive action rather than an essential instrument of accountability,” said King. “We urge him to reconsider this dangerous course.”

The ACLU comments are online at: http://www.aclu.org/safeandfree/122001_comments.pdf.

The NACDL comments are online at: http://www.nacdl.org/public.nsf/freeform/terrorism1?OpenDocument&ExpandSection=3#_Section3

Signatories to the ACLU comments are: American Immigration Lawyers Association, Arab American Institute, Asian American Legal Defense & Education Fund, Center for Democracy and Technology, DC Prisoners’ Legal Services Project, Electronic Privacy Information Center, Equal Justice Program of Howard University Law School, Friends Committee on National Legislation, Lawyers Committee for Human Rights, Legal Action Center, Legal Aid Society of New York, Libertarian Party, The Multiracial Activist, National Association for the Advancement of Colored People, National Black Police Association, Unitarian Universalist Association of Congregations, Washington Council of Lawyers, and World Organization Against Torture.

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