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US Lawyers Outraged by New Client Communication Measure - 2001-11-10

The U.S. government has decided to monitor private communications between lawyers and their clients in federal custody whenever it thinks this is necessary to prevent terrorism and violence. Civil libertarians and criminal defense lawyers are aghast at what they call a violation of a traditional right to privacy protected by the U.S. constitution.

In the U.S. government's campaign against terrorism, its law enforcement agency, the Department of Justice, has quietly issued new regulations suspending the right of private communications between lawyers and clients in federal detention in certain circumstances.

Under the new rule, government investigators may eavesdrop on discussions and letters between inmates and their lawyers if it believes these communications may foster acts of terrorism. It eliminates the requirement that the government get prior approval to listen from a federal judge.

The rule is the latest in a series of broad measures the Bush administration has put into effect since September 11 to make it easier to catch and detain suspected terrorists. The reaction to it has been strong.

"I am shocked by these regulations because they are a massive invasion of civil liberties," said American Civil Liberties Union official Elizabeth Alexander. She said the rules destroy the U.S. Constitution's guarantee of legal representation for criminal defendants. "You can't be represented by your counsel because the counsel can't really talk to you about the representation," she added.

The Justice Department disagrees. It points out that established law does not protect all communications between a lawyer and criminal client, such as those that further a client's illegal acts. But for the president of the U.S. National Association of Criminal Defense Lawyers, Irwin Schwartz, the government's stand is deeply troubling because it makes no prior distinction between privileged and non-privileged discussion.

"When I as a criminal defense lawyer go to see my client at the federal jail, I go down to talk to him about his case," said Mr. Schwartz . "It's those conversations that we must not have a third partly listening to. But what the government proposes to do, is listen to all of my conversations with the client and then decide based on what it has heard whether or not it is going to disclose that to yet other people in the government."

Civil libertarians also object to the expansion of who is considered a federal inmate subject to the rules. Previously, an inmate was someone convicted and jailed for a crime. Elizabeth Alexander complains that the new regulations also cover unconvicted detainees. "Potentially, the number of cases in which this could be invoked is huge," she said. "It also covers anybody who is in detention, perhaps as a material witness not suspected of anything."

The Department of Justice says it has created safeguards to protect attorney-client conversations. It will notify lawyers and inmates when it will monitor them. The eavesdropping will be done by special teams that will not disclose information without a federal judge's approval.

President Bush's Director of Homeland Security, Tom Ridge, says he believes Attorney General John Ashcroft will enforce the regulations with discretion. "The attorney general has been exceptionally careful and FBI [Federal Bureau of Investigation] Director [Robert] Mueller very precise in the directions they have given to the law enforcement community in regard to constitutional protections," he said. "I'm very comfortable that during this time of challenge in our war on terrorism, they will be very careful of making sure that those constitutional guarantees are protected."

But criminal defense lawyer Irwin Schwartz is not comfortable with the government's guarantees. "We have no confidence in these folks saying, 'Let us listen to everything and trust us. We won't abuse the fact that we've overheard the conversations.'"