FC: Justice Department will spy on attorney-client conversations

[Declan McCullagh <declan () well com>]

[Another reason to rely on technology to protect your rights (as a
general rule; I hardly think the 1,100+ detainees have smuggled 
crypto-hardware into their jail cells) rather than the weak,
politically-malleable shield of the law. --Declan]

*********

http://dailynews.yahoo.com/h/ap/20011108/us/attacks_sedition_1.html

WASHINGTON (AP) - Prosecutors seeking to hold people they
suspect were in the early stages of terrorist plots may turn anew
to a very old weapon - the Civil War-era law on sedition.
Last week, prosecutors cited the rarely invoked law in the case
of a student being detained in New York, and hinted they might make
fuller use of it in the aftermath of the Sept. 11 attacks. [...]

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http://www.washingtonpost.com/wp-dyn/articles/A64663-2001Nov8.html
   
   By George Lardner Jr.
   Washington Post Staff Writer
   Friday, November 9, 2001; Page A01
   
   The Justice Department has decided to listen in on the conversations
   of lawyers with clients in federal custody, including people who have
   been detained but not charged with any crime, whenever that is deemed
   necessary to prevent violence or terrorism.
   
   Attorney General John D. Ashcroft approved the eavesdropping rule on
   an emergency basis last week, without the usual waiting period for
   public comment. It went into effect immediately, permitting the
   government to monitor conversations and intercept mail between people
   in custody and their attorneys for up to a year at a time.
   
   The move, which the Justice Department said was necessary "in view of
   the immediacy of the dangers to the public," stunned defense lawyers
   and civil libertarians. They assailed it as an unconstitutional attack
   on the right to counsel and, in the words of American Civil Liberties
   Union official Laura W. Murphy, "a terrifying precedent."
   
   The monitoring of attorney-client conversations is the latest in a
   series of extraordinary law enforcement measures the government has
   taken in response to the Sept. 11 terrorist attacks on New York and
   Washington.

   [...]

********

Power Grab Allows Government Eavesdropping on
Inmate-Attorney Conversations

FOR IMMEDIATE RELEASE
Contact: Gabe Rottman
Friday, November 9, 2001
(202) 675-2312

WASHINGTON - Calling it an unprecedented power grab completely at odds with
the Constitution, the American Civil Liberties Union today said it
vehemently opposes the new Bureau of Prisons regulation allowing the
government to listen in on conversations between prison inmates and their
legal counsel.

The right to an effective and vigorous defense is an absolute, said Laura
W. Murphy, Director of the ACLU Washington National Office.  This is a
terrifying precedent - it threatens to negate the keystone of our system of
checks and balances, the right to a competent legal defense.

The regulation removes all judicial review from the eavesdropping, allowing
the government to listen in any time the Attorney General believes there
exists reasonable suspicion that a conversation between an inmate and
counsel has any connection to terrorist activity.  Murphy said that this
would discourage inmates from having full and open conversations with their
own defense attorneys about the facts of the case, information which is a
prerequisite for good legal advice.

The new regulation appeared in the Federal Register on October 31 along with
a number of other changes in the current rules governing the Bureau of
Prisons.

Even though the Department of Justice claims to protect inmates Sixth
Amendment right to assistance of counsel in this new regulation by
establishing a firewall within the department to prevent prosecutors from
getting their hands on privileged information, Murphy questioned the
departments trustworthiness.  She pointed out that the Department of
Justice just successfully petitioned Congress to remove the firewall between
intelligence and criminal investigations, a key check on law enforcement
power.

Ironically, the new regulations come at the same time as the Administration
is seeking to repeal the McDade-Murtha Law, a measure that was passed in
1996 in response to questions of professional misconduct by government
attorneys.  Its repeal would allow federal prosecutors to follow a far more
lax set of ethical standards than defense attorneys.

Civil liberties advocates also fear that the regulation could provide
innocent inmates a disincentive to volunteer information to their defense
counsel that could potentially clear their name.

If an suspects sole alibi is potentially damaging, but unrelated to the
alleged crime, he or she will obviously be hesitant to whisper this little
secret directly in the governments ear, Murphy said.  Each and every
person in this country must given the constitutional right to private
consultation with legal counsel.

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