COMMENTS OF THE CENTER FOR NATIONAL SECURITY STUDIES
ON THE ATTORNEY GENERAL'S ORDER
REGARDING THE MONITORING OF LAWYER-CLIENT COMMUNICATIONS
66 FED. REG. 55062 (Oct. 31, 2001)
In October, the Attorney General issued an order authorizing the Justice
Department to monitor conversations between certain individuals being detained
by the government and their lawyers. 66 FED. REG.
55062 (Oct 31, 2001). While the number of detainees so far affected by the
order may be small, the effect on those detainees is dramatic and damaging. The
monitoring scheme authorized by this order radically undermines the
confidential lawyer-client relationship of those affected, so much so that it
violates the detainees' First Amendment right to access the courts and their
Sixth Amendment right to effective assistance of counsel. The monitoring scheme
lacks the strict procedural protections for the attorney-client relationship
required by the common law and the Constitution. In addition, it violates
federal wiretapping statutes and the Fourth Amendment.
I. The monitoring scheme
interferes with and undermines the lawyer-client relationship.
A client's ability to
consult a lawyer in confidence is at the heart of the lawyer-client
relationship. A lawyer needs to be able to assure her client of confidentiality
in order to induce the client to be candid. Swidler
& Berlin v.
In addition, the order's effect on attorney-client privilege will cause the
ethical lawyer to advise her client against the kind of disclosure that is
necessary for adequate representation. The attorney-client privilege attaches
to a communication between a client and his lawyer only if the communication
occurs in confidence - i.e., outside the hearing of others. RESTATEMENT OF THE
LAW GOVERNING LAWYERS§ 68(3) ("RESTATEMENT") .
Where a lawyer and client have a conversation knowing that a third party can hear
them, the privilege does not apply. Suburban Sew 'N Sweep v. Swiss-Bernina, 91
F.R.D. 254, 258 (N.D. Ill. 1981) (collecting cases); RESTATEMENT § 71
Illustration 2 (attorney-client privilege does not prevent testimony by nonsurreptitious eavesdropper who overheard lawyer-client
conversation in courthouse hallway). Ironically, the order's provision
requiring that the detainee and his lawyer be informed of the monitoring
extinguishes the privilege for any conversations that occur under such
circumstances.
A lawyer has an ethical
obligation to conduct her communications with a client in a way that preserves
attorney-client privilege. RESTATEMENT § 60 Comment d. Since the order prevents
attorney-client privilege from attaching to any of these conversations, here a
lawyer must caution the detainee against candid disclosure. A lawyer
representing a detainee will be hobbled by this inability to obtain necessary
information, and it may be impossible for the lawyer adequately to represent
the detainee at all. See Memorandum from Paul Carrington et al. to John
Ashcroft et al. on Government Monitoring of Attorney-Client Communications
(submitted Dec. 4, 2001) ("Law Professors' Comments") § I, p. 4
The regime established by
this order cuts to the very heart of the lawyer-client relationship. It
cripples the detainee's ability to consult meaningfully with her lawyer. This
interference with the lawyer-client relationship, in turn, violates detainees'
First and Sixth Amendment rights.
II. This monitoring scheme
violates detainees' First Amendment right to petition the government and access
the courts.
All persons, including
those being detained, have a First Amendment right to petition the government.
This right includes the right to access courts. Bounds v.
Smith, 430
This monitoring, with its
inevitable chilling effect on lawyer-client communications, constitutes a
serious interference with the right of detainees to access the courts, and thus
violates the First Amendment.
III. This monitoring scheme
violates prisoners' Sixth Amendment right to effective assistance of counsel.
The Sixth Amendment guarantees that a person facing criminal charges has a
right to effective assistance of counsel. That assistance can be effective only
if the client can consult the lawyer in a meaningful fashion, and provide the
lawyer with necessary information. This order will have a chilling effect on a
prisoner's communications with his lawyer, thereby interfering with a
prisoner's ability to consult his lawyer and obtain effective assistance of
counsel. The "'Sixth Amendment's assistance-of-counsel guarantee can be
meaningfully implemented only if a criminal defendant knows that his
communications with his attorney are private . . . .'" Weatherford v. Bursey, 429
The regulation's attempt to
limit this interference -- by establishing monitoring teams who do not
participate in the prosecution -- is completely ineffective, and appears to
conflate prisoners' Fifth and Sixth Amendment rights. The Sixth Amendment issue
is not whether a prisoner's statements to his lawyer will be used against the
prisoner at trial, which might implicate a prisoner's Fifth Amendment right not
to incriminate himself. Kastigar
v.
IV. The monitoring scheme
lacks the necessary procedural protections required before any interference
with the lawyer-client relationship.
The lawyer-client
relationship is so fundamental to the protection of constitutional rights that
the government must meet strict procedural requirements before it can interfere
with that relationship. Before it can undertake a search of lawyer's office,
the government must convince a neutral magistrate of probable cause. Klitzman, Klitzman and Gallagher
v. Krut, 744 F.2d 955 (3d Cir. 1984) (With regard to
searches of law offices, courts should "scrutinize carefully the
particularity and breadth of the warrant authorizing the search, the nature and
scope of the search, and any resulting seizure."). The government cannot
unilaterally interfere with lawyer-client confidentiality. Instead, it must
present evidence and convince a neutral judge that such interference is
appropriate. "[T]hose charged with [the] investigative and prosecutorial
duty should not be the sole judges of when to utilize constitutionally
sensitive means in pursuing their tasks."
Even outside the
search-and-seizure context, courts impose strict procedural requirements to
protect lawyer-client confidentiality. For example, before a court will pierce
the attorney-client privilege using the crime-fraud exception, the party
seeking to pierce the privilege must present to a court sufficient evidence to
support a reasonable belief that in camera review of the material will show
that the client was using the lawyer in a crime or fraud. Zolin v.
This order, allowing the Attorney General to undermine a detainee's
relationship with his lawyer without first going before any neutral
decision-maker, is inconsistent with both the common law of attorney-client
privilege and the Constitution's requirement of due process. Procunier v.
V. The monitoring scheme
violates the federal wiretapping statutes and the Fourth Amendment.
Congress carefully balanced
the law enforcement interest in obtaining information against the public
interest in ensuring privacy when it passed and later revised the federal
wiretapping statutes, 18 U.S.C. Sections 2510-2522. Before the government can
intercept oral communications, it must demonstrate to a federal judge probable
cause to believe both that a particular individual is committing a crime, and
that the individual will be communicating about that crime. 18
U.S.C. § 2518(3). Congress has set out a limited number of crimes for
which such interception is permitted. 18 U.S.C. § 2516.
It has limited such interception to a thirty-day period. 18
U.S.C. § 2518(5). Congress even provided for emergency situations
involving national security or the imminent threat of serious bodily injury. 18 U.S.C. § 2518(7). In other words, while Congress has
recognized that law enforcement has a legitimate need to eavesdrop on some
conversations, the potential for abuse of eavesdropping is so great that it has
imposed significant procedural requirements and restrictions.
This order attempts to
circumvent the wiretapping statutes' procedural requirements and restrictions
by informing detainees and their lawyers that their conversations will be
monitored. 29 C.F.R. § 501.3(d)(2). The wiretapping
statutes apply to "oral communication," which is defined as that
"uttered by a person exhibiting an expectation that such communication is
not subject to interception under circumstances justifying such
expectation." 18 U.S.C. § 2510(2). Since both the
lawyer and detainee know about the monitoring, the argument might go, they can
no longer have a reasonable expectation that their "communication is not
subject to interception." But this argument fails because a detainee and
his lawyer have no choice but to communicate. They have a right rooted in the
First and Sixth Amendments to communicate in confidence.
In this order, the government
seems to substitute notice of eavesdropping for the warrant and probable cause
required by the Fourth Amendment. If notice could substitute, then by the same
logic the government could simply inform the general public that all their
telephone and other conversations may be monitored. Such a policy would, of
course, be unconstitutional. Under the Fourth Amendment, the government cannot
monitor the conversations between a detainee and his lawyer unless it goes
before a neutral magistrate and proves probable cause.
Conclusion
This regulation interferes
with the lawyer-client relationship of detainees so fundamentally that it
violates their First and Sixth Amendment rights. It is contrary to the
constitutional and common law requirements that the executive branch obtain the
approval of a neutral magistrate before interfering with lawyer-client
confidentiality. It violates the wiretapping statute and the Fourth Amendment.
This regulation should be withdrawn.
written by:
Washington University School of Law
St.
314-935-4081
kathleen@wulaw.wustl.edu
for: Center for National Security
Studies
202-994-7060
cnss@gwu.edu
submitted: December 31, 2001