- The Washington Times - Saturday, November 10, 2001

The Justice Department yesterday defended its decision to monitor the conversations of some prison inmates and their attorneys in the wake of the September 11 terrorist attacks, while a coalition of defense lawyers said it will challenge the new ruling.
Attorney General John Ashcroft, in an order signed Oct. 31, instituted the new rules allowing authorities to listen in on the conversations of some inmates and to monitor their mail.
"Recent terrorist activities perpetrated on U.S. soil demonstrate the need for continuing vigilance in addressing the terrorism and security-related concerns identified by the law enforcement and intelligence communities," Mr. Ashcroft noted in signing the new rule.
Justice Department spokesman Mindy Tucker said the new rule was instituted as part of the department's ongoing effort to prevent further terrorist acts, and that it expanded an existing regulation regarding the monitoring of communications of inmates, subject to what she described as a "special administrative measure."
She said the regulation allows authorities to listen to conversations of inmates in cases where the attorney general has been told by law enforcement or intelligence agencies that the inmate may discuss pending terrorist acts with their attorneys.
The Justice Department said of 158,000 federal inmates, 13 inmates would qualify under the new rules to have their conversations monitored. Ms. Tucker said the majority of inmates currently under special administrative measure were taken into custody before the September 11 attacks on the World Trade Center and the Pentagon.
The National Association of Criminal Defense Lawyers (NACDL), a professional bar association that represents more than 10,400 defense lawyers and 80 state and local affiliate organizations with another 28,000 members, said it will use "all available legal means" to challenge the new Justice Department rule.
"Rules and codes of professional responsibility are very clear: an attorney cannot communicate with a client when confidentiality is not assured," NACDL President Irwin Schwartz said in a statement. "And there can be no effective representation without communication. The client is stripped of his Sixth Amendment right to counsel."
Mr. Schwartz said the Supreme Court has recognized the attorney-client privilege as one of the oldest of three generally recognized evidentiary privileges including husband-wife and priest-penitent and that the "federal government has no business eavesdropping on these conversations, absent a court order."
But Ms. Tucker said the new rule provides safeguards for the inmates and the attorneys. She said under the rule, the attorney and his client will be notified if their communications are to be monitored and those listening to the call will have no connection to any ongoing prosecution.

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