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.

Comments

Where does attorney-client privilege come from?

[melquiades]

I'm hazy on the subject, but I believe that there is no constitutional right to lawyer-client privacy. I'm under the impression that, like therapist confidentiality, it's mostly a matter of common consensus -- the bar association and the government have simply agreed to uphold this as a tradition. IIRC, there was some great contoversy last year when the bar association decided to relax its policy to allow lawyers to step forward with privileged information which presented a clear and direct threat to the safety of others.

Is my understanding correct? Is there any consitutional protection, or protection in federal law, of attorney-client privilege?

Is it time to propose a new consitutional amendment?

Attorney-client privelege.

[Zach`]

It's astonishing how easily a basic civil right such as the right to counsel is taken away!

I would love to see how the right to counsel is being taken away. As far as I can tell, the only 'right' being taken away is that of privacy, which is automatically given up when you're a federal detainee. You should have no reasonable expectation of privacy.

Now, if you'd like to discuss how attorney-client privelege is being taken away, that'd be something different. But please don't spread FUD that civil rights to counsel are being taken away. That's absolutely ludicrous.

Please, also note how exactly the information is going to be used.

• "No information that is protected by attorney-client privilege may be used for prosecution," the statement said. "There is not protection however, for communications related to the client's ongoing or contemplated illegal acts."

There's massive differences between the two. Get them straight before you whine about terrorist's rights being taken away.

Re:Attorney-client privelege.

[Zico]

But after you're merely arrested/detained/whatever for a crime — i.e., haven't been convicted yet — you already lose some of your rights. You can have your vehicle and drivers license taken away from you before any trial (and for the record, I think this is an unjust practice). I would consider it an invasion of privacy to be strip searched and have my orifices probed when being put into jail to await trial. Do you consider this last example to be unjust? I don't, because I believe that the safety concerns take precedence. Otherwise it would be even easier for people to bring contraband into jail with them.

It's pretty much the way I feel about this current issue, in that there's a strong public safety argument going up against the privacy concerns. From the article, it sounds like they're putting up a clear firewall between the observers and the prosecution team so that any evidence gained through these conversations cannot be admissible in court — if they didn't, there's pretty much no way that I'd ever support this.

So I'm sure someone will say, "Oh yeah, nice ideal, but you know that someone will violate the firewall." To that I can only say that if someone was willing to violate the firewall, what on Earth would stop them from violating the current standard and setting up a wiretap anyway? There are always going to be some bad apples who will go around the law, but the simple fact is that they can already go around the law — this new dictate isn't going to grant the bad apples any new powers that they didn't already have to cross the line. It's a judge's job to throw out any evidence obtained improperly through this system; if there's a bad judge who doesn't, you don't really think that he's going to suddenly right himself and throw out evidence from an illegal wiretap obtained under the current system, do you?

Believe me, I understand about the need to protect against a slippery slope of our rights going away. I used to be a card carrying member of the ACLU until they decided to fight fiercely only for the rights of their pet groups. It bothered me greatly when that boob Manuel Noriega was convicted in part because prosecutors eavesdropped on the conversations between him and his lawyers (which is a perfect illustration of what I said earlier, that this new dictate doesn't give the bad apples any new powers that they didn't already have). I can see why some people are more wary of this than I am, and I respect that people would be against it, but I think it's totally unproductive to not recognize that there are real public safety issues involved with this and instead run around screaming that it's simply a matter of our current leaders wanting to turn the country into a police state. Come on.

Read article before jerking knee

[Reality Master 101]

This is an EXTREMELY limited provision. It appears to be intended to be used when there is a good possibility of the client-attorney privelege being abused to create more terrorism.

Put it this way: If Osama bin Laden wanted to talk to someone he claimed was his "lawyer", yet we had good intelligence that this "lawyer" was actually a head of a terrorist cell, then it might be a good idea to not allow lives to be endangered in that way.

Re:Doh!

[gilroy]

Blockquoth the poster:

Our Bill of Rights does not say "presumed innocent" it only guarantees a fair trial, so that they can be convicted of only the crimes that they did commit.

I will leave aside the proposition -- recognized by at least some judges for a long time -- that the presumption of innocence is a prerequisite for a fair trial. Instead, I'd like to point out that the right to a fair trial must include the ability to exercise all of one's Constitutional rights to the fullest. The Fifth Amendment protects against coerced self-incrimination. The Sixth Amendment guarantees assistance of counsel. Unless one recognizes a very broad attorney-client privilege, those two rights cannot be simultaneously exercised. How can one fully utilize counsel -- how can one preserve the fairness of a trial -- while afraid that anything said to the attorney will become a part of the court record? How can you prevent self-incrimination and yet throw open any discussion with the attorney to full scrutiny? As is often the case, the courts have recognized that the exercise of explicit Constitutional rights sometimes entails the exercise of others, necessary for the first.

Even though the eavesdropping tapes would be inadmissable in court, they could still provide leads for other investigative teams to persue on other linked individuals.

And as soon as this becomes commonplace and known, defendants will stop speaking freely with their attorneys, for fear that something will come back to haunt them. And then the Sixth Amendment guarantee of counsel is meaningless, since an efficient and effective defense depends on the free flow of information between counsel and client.

Many of them are not completely innocent people, and most who are really innocent know information about the truly guilty. Silence and priveledge are preventing justice from being done

First of all, the DOJ has not given any evidence that attorney-client privilege is hampering justice. There is a bare assertion, but not a single instance wherein they can say, "Well, if we had had this power, the events of 9/11 would have been prevented".

Second, look how you have already tarred the detainees. Despite repeated claims that everyone deserves a fair trial, you have already declared them guilty, apparently because the federal government saw fit to pick them up. The legal system erects many checkpoints and barriers to the untrammeled exercise of prosecutorial power, precisely because this tendency is inherent in human beings.

Third, you seem willing to coerce even those you admit to be "really innocent". In other words, you're willing to hand over to the DOJ the ability to detain, to tape, and to harass people who are "really innocent" if the DOJ makes a simple assertion that these people might have information the DOJ desires. The proposed rule removes the courts from the process, eliminating the judicial oversight that is absolutely essential for preventing prosecutorial abuse.

For most of the people upset with this decision, it seems to me, the issue is not the possible abridgement of attorney-client privilege. It's the fact that the DOJ has moved this into an internal "administrative" policy, setting DOJ up as both the implementor and the evaluator of the situation. The DOJ has no role and no authority to decide constitutional questions, and certainly no authority to reduce constitutional guarantees, even in a crisis. That power is reserved to either Congress or to the courts, for good reason: The American system depends on external checks on the abuse of power by any government agency.

I'm not arguing that the DOJ will find the new rules more convenient. I'm just less interested in their convenience than the DOJ is. I put a higher value on the principles that make this nation a free and open land based on the rule of law -- the principles that make this nation worth defending. It seems to me that the current climate encourages people to sacrifice all that we are, to chase a chimera of physical safety.