Ashcroft Eavesdropping Rule Assailed

Add to the list of things that have changed since Sept. 11 the attorney-client privilege.

Atty. Gen. John Ashcroft, acting last week under emergency procedures, quietly adopted a new rule that permits federal prison officials to eavesdrop on conversations between selected inmates and their lawyers.

Whenever there is a “reasonable suspicion” that inmates will “pass messages through their attorneys” that could further a terrorist plot, the government will listen in, Ashcroft said.

The purpose of the new surveillance is to “thwart future acts of violence or terrorism,” he said.

However, his move only heightened fears among civil libertarians and some Senate Democrats that basic constitutional rights are being pushed aside in the war against terrorism. The privacy between a lawyer and an accused defendant is considered one of the essential elements of a fair trial.

The American Civil Liberties Union called the Ashcroft policy “an unprecedented power grab completely at odds with the Constitution.”

“The right to an effective and vigorous defense is an absolute,” said Laura Murphy, director of the ACLU’s Washington office. Inmates will not be able to speak freely with a lawyer if the government might be listening, she said.

Since Sept. 11, nearly 1,200 people have been detained in connection with the government’s anti-terrorism crackdown.

But Justice Department spokeswoman Mindy Tucker said Friday that the new authority will be used sparingly and will not jeopardize anyone’s right to a fair trial.

“This is prevention-minded, not prosecution-minded,” she said. None of the intercepted information will be used in court against the inmates, she said.

Currently, only 13 inmates out of 158,000 federal prisoners are subject to this “special administrative measure,” the department said. And none are among those detained since the Sept. 11 attacks.

Among those already subject to such surveillance are the terrorists who were convicted for the 1993 attack on the World Trade Center. These prisoners should not be able to pass messages to others on the outside via their lawyers, officials said.

But Ashcroft’s new policy was sharply criticized by a broad array of lawyers and lawmakers.

Sen. Patrick J. Leahy (D-Vt.), chairman of the Judiciary Committee, said he was “deeply troubled” to learn of Ashcroft’s move. In a letter to the attorney general, he also made clear he was irked that Ashcroft had not told him in advance of the policy change.

“I have felt a growing concern that the trust and cooperation [between Congress and the administration] is proving to be a one-way street,” Leahy said.

He sent the attorney general a series of questions about the new policy and said he expected answers “by no later than Nov. 13.”

Even some veteran lawyers who have worked as prosecutors said Ashcroft’s move surprised them.

“This is a mistake. It is un-American,” said George Washington University law professor Stephen K. Saltzburg, a former assistant independent counsel. “Lawyers are not a threat here, and I just can’t see a reason why in the United States we would refuse to allow a detained person to speak privately with a lawyer.”

Washington attorney John M. Bray, a former Justice Department prosecutor, said: “These are times of high tension and high stakes, but everyone has a right to a private conversation with a lawyer. I’ve never heard of [the government] listening in on meetings with a client in custody.”

However, a former general counsel for the National Security Agency said it is reasonable for the government to monitor conversations if there is good reason to believe the lawyer may be a conduit for terrorists.

“Practically anyone can go to flight school or to law school in the United States,” said Stewart A. Baker, who served in both the Bush and Clinton administrations. “Just because you have a law degree doesn’t mean you won’t be sympathetic to [Osama] bin Laden and Al Qaeda. So, if you think of it that way, you can see what the government faces. They are trying to prevent people from communicating in a way that might further future attacks. If it is used only in those circumstances, the policy could be justified.”

Still, some lawyers wondered why the Bush administration is ignoring the usual route for obtaining a wiretap order.

Under current law, officials can listen secretly to a conversation between a lawyer and client if they have evidence that the two are involved in a crime or a fraud.

“If you have probable cause, you go to a judge. And if the judge agrees, he will authorize the interceptions,” said William Jeffress, a defense lawyer in Washington.

He criticized Ashcroft for trying to circumvent the law and the Constitution. “He is saying, ‘Give me the power. And trust me.’ Whenever the government says that, ordinary citizens should have a cold feeling in the pits of their stomach,” Jeffress said.

The privacy privilege between a lawyer and client is usually described as one of the oldest and strongest privileges in the law, and one that predated the U.S. Constitution. It is not quite a constitutional rule, however.

The 6th Amendment says: “In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense.” Courts have often said this includes, by implication, a right to consult in confidence with a lawyer.

But in a few high-profile cases, prison officials have taped conversations involving lawyers. In the early 1990s, CNN played tapes of prison conversations between former Panamanian dictator Gen. Manuel A. Noriega and his lawyer while he was being held pending his trial on drug charges.

Ashcroft insisted that defendants’ rights will be “scrupulously protected” under his new policy, as set forth in the Federal Register of Oct. 31.

An inmate and his lawyer will “be given notice” whenever the government is listening to their conversations. Moreover, there will be a “firewall” between the listening agents and prosecutors to ensure that overhead information “will never be revealed to prosecutors and investigators,” Ashcroft said.