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Government to Eavesdrop on Lawyer-Client Conversations
An Anonymous Coward writes: "This CNN article outlines the justice department's plans to start monitoring lawyer-client communications of detainees. The decision was made by the justice department without any public debate or the involvement of the Senate or Congress. It's astonishing how easily a basic civil right such as the right to counsel is taken away!" The ACLU is, predictably, opposed.
"The Justice Department said less than one-tenth of 1 percent of federal inmates are subject to the provision that allows such monitoring. It pointed out most inmates subject to special administrative measure have no relation to the terrorism investigation, spawned by the deadly September 11 hijackings and attacks."
I'm not saying I agree with this, but at least keep in mind that this is limited in scope. Yeah, yeah, slippery slope and all that, but while you're fighting against stuff it's important to realize what you're fighting against.
This is not "let's completely throw away client-attorney privilege", it's "let's recognize that sometimes national security takes precedence". You still may disagree with this, but at least fight the correct target.
ZFS: because love is never having to say fsck
I don't think this in any way violates right to counsel.
Too big to fail? Does that make me to small to succeed?
Hello, former Attorney General Ed "by definition, all suspects are guilty" Meese!
We are not talking about people convicted of a crime. We are talking about people who have been DETAINED pending trial... possibly even without formal charges filed yet. These are people who can't make bail, who are considered flight risks, etc., but not convicted of any crime.
And while there are some practical reasons to support this change (esp. if the DoJ establishes a "wall" between the people who listen to these conversations for insight into future acts of terrorism and those who prosecute the individuals for any crimes previously committed), it has one huge constitutional drawback - it establishes two standards of treatment for defendants. If you're detained, the DoJ can eavesdrop on your conversations with your lawyer. If you can post bail, they can't. (Think they'll be able to bug lawyer's offices? ha ha ha ha!)
For every complex problem there is an answer that is clear, simple, and wrong. -- H L Mencken
Umm. How the hell did this get a Score of 3? They are DETAINEES. They have yet to be convicted in a court of law. And most of the article went on about how preventing candid discussions between a lawyer and the SUSPECT might have implications on the defence.
What ever happened to innocent until proven guilty?
Did you even read the article?
It seems apparent to me that you did not read the article or at least understand the full implications. This proclimation by Ashcroft allows the DoJ to listen in even on conversations between lawyers and detainees who have not even been charged with a crime yet. Its a fairly blatant threat to the 5th ammendment and our right to free counsel, and borders on entrapment. I'd say that it is fairly clear Ashcroft wants to turn the US into a police state.
-Klep
Its great that I have the right to say this isnt it? Well along the same lines, I have some other freedoms, that the government is supposed to protect (not provide mind you), as well. See these if nothing else:
This is a clear abuse of power against our rights.
Pull your head out of the police state cloud, a loss of freedom does not ensure greater safety in general for the populace.
"Not my manner of thinking but the manner of thinking of others has been the source of my unhappiness." - M
Please see this post, I reneged what I had said in total error. I was speaking out of ignorance.
5 46 469 for the goatsex weary
http://slashdot.org/comments.pl?sid=23590&cid=2
To put your mind at ease if you're too lazy to click the link in the article, I'll reproduce the most relevant part here:
If you don't get it, read that again. Now, what is there to whine about? I'm all for Civil Liberties, but this case has absolutely nothing to do with Civil Liberties. Terrorists, especially foreign terrorists, have no Civil Liberties to be concerned with, as far as I and 99.9% of Americans are concerned.
(IANAL, but am someone who tries to keep current on civil liberty issues... so take everything with a grain of salt...)
One spouse cannot be forced to testify against the other because, under the law, they are often considered a single individual. This is why it too so long for spousal rape and domestic violence laws to be passed - it wasn't (just) a bunch of good old boys who didn't see a problem, but a delicate balancing act between a centuries old tradition and modern concerns - the legislatures wanted to avoid accidently wiping out all marital privilege. It's also why homosexual spouses want legally recognized marriages - marriage includes a lot of rights which no civil contract, alone, can provide.
IIRC, lawyer-client privilege follows a similar argument. Everyone is expected and required to understand the law, but that requires the ability to freely consult experts (lawyers) for advice. So the law squints and say that lawyers are in essence an extension of the person *when discussion prior acts*, or to a limited extend future acts. Same thing with cleric-penitent privilege and doctor-patient privilege.
However, lawyers have never been able to give unfettered advice regarding future actions by the client. E.g., your lawyer can't be compelled to reveal that you admitted killing a business rival (N.B., "killing" is an act, "manslaughter," "murder" et al are legal evaluations), but it's a very different thing if you ask your lawyer how you can kill a business rival in the future and face no more than a manslaughter conviction.
It sounds like the DoJ is just seeking to formally recognize that some detainees may be seeking to use their lawyers as agents of future violence, not just sources of legal advice, and wish to prevent that. Risky, but not unreasonable.
For every complex problem there is an answer that is clear, simple, and wrong. -- H L Mencken
I believe it's a spin off of the right to a fair trial. If you can't talk to your lawyer in absolute confidence, then you can't get the best possible defense, because you can't tell him all the facts without risking things. It's similar to the interpretation that grants the right to council and offers to provide one free of charge...to insure that the defendant has a quality defense.
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I read the internet for the articles.
If you add your argument to the argument of the poster previous to you you get a fuller picture of the issue.
Everyone has heard the term "power of attorney" and has some rough idea of what that means. Few know the meaning of the attorney though. It simply means representitive. One could consider one's house contractor an "attorney at plumbing." Someone with the power of attorney is someone who is legally recognized as being able to act * as if they were you.*
Your attorney at law is, in some very real legal asspects, you. YOU cannot be made to testify agaisnt yourself.
Add to that the right to fair trial, which is impossible if you cannot talk freely and confidently to your own attorney, who is just a legal extension of yourself, and you the basis for attorney-client privilege.
The important part that has been left out of this discussion so far is the process of discovery. Just because you tell your lawyer something dosn't mean he can't reveal it. He MUST reveal everything to the prosocution that the prosocution has the legal right to know. There is a system of legal checks and balances at work here and the process of discovery, which happens out of the view of the public, is perhaps the most important role of the defense attorney. You talk to your attorney, he sifts through what you have told him and protects your right not to testify against yourself by revealing to the prosocution only that which the prosocution has a right to know.
Without this balance of "power of information" constitutional rights would be absolutely unenforcable.
KFG
According to The Washington Post (http://www.washingtonpost.com/wp-dyn/articles/A64 663-2001Nov8.html, for the goat-wary),
Never play leapfrog with a unicorn. Or a juggernaut.
In the United States, therapist confidentiality is secured by statutes (just about every state recognizes some sort of therapist confidentiality) or by rule -- the United States Supreme Court relied on the Federal Rules of Evidence when it recognized a psychotherapist-client privilege in 1996.
If the AG's present proposal is adopted, and upheld by the courts, it will be another victory for those seeking to destroy the "American way of life."
When a shepherd visibly counts goats as sheep, who will do business with him in the market place when he comes to sell his flock?
That shouldn't matter.
Once upon a time, the Constitution was worth a whole lot more than just 6000 lives.
Still is.
Show me where, in the Constitution, one has a right to private communication with one's lawyer. Now, we consider losing this "right" a step backward, but the "right" of private communication with one's lawyer is not a right dilineated in the Constitution.
Your response would be correct if this one of our Constitutional rights, because they are not to be given up easily, and certainly not for something like this. But this is at best a privilege, and thus can be given up.
Come on, give it up, that's
Similarly, when the government prosecutes a criminal defendant--wants to take away his liberty or perhaps even his life--the accused has an absolute right to legal advice at all "critial stages." This advice should be confidential, otherwise the incentive is for the client to clam up or lie to the attorney, making a defense and or plea negotiation very very difficult. (Put yourself in the shoes of the defendant--would you open up about an event in a death penalty case to your lawyer when the Justice Department is both trying to kill you and listening in!)
Finally, keep in mind that the attoney-client privilige does not apply to serious future criminal conduct and cannot be used to shield plans to facilitate future criminal activity, especially if violence is involved. The ABA and every state has ethical rules when a lawyer must report, may report, an must not report things he or she learns during the course of representation. And, as others have mentioned, the USA can always try and get a court order to monitor converstations if they have real evidence (not just some wild guess or a "hunch") that criminal activity is afoot and being aided by sham attorney-client contact. Now the court is out of the loop, evidence is not required, and the fox is guarding the henhouse.
"Trust us, we're the government" does not fly with this American. Patriotisim means protecting core values during difficult times, not pasting a flag on your SUV and repealing the Bill of Rights.
Attorney-client privalege does not sheild the attorney from having to notify the proper authorities in the event that the client discusses his/her plan to commit a crime in the future, attorneys are required by their ethics rules to notify the authorities.
Absolutely not. Neither legal ethics nor any law (in a typical state) require lawyers, or anyone else, to reveal confidential communications (when they're not otherwise liable for the conduct).
Under the ABA's model rules, a lawyer is *permitted*, but not required, to reveal a client's confidences only when *necessary* to *prevent* a crime or fraud reasonably *certain* to cause death or serious bodily injury. (Until this year, the injury also had to be "imminent.") An ordinary robbery wouldn't qualify, and, in any case, a lawyer with his head on straight wouldn't voluntarily turn in his own client.
No, this is not the rule California applies to psychaitrists under _Tarasoff_. That shouldn't be surprising, since few rules of psychiatry apply to lawyers, and vice versa.
Now, of course, it would not be *priveleged*, but that affects only whether it can be kept out of evidence -- not whether the police can be told of it. (Simplifying there a touch.)
Yes, IAAL.
Lionel Hutts, J.D.
I Can't Believe It's A Law Firm, LLP does not necessarily endorse the contents of this message.