- The Washington Times - Tuesday, November 13, 2001

That maxim is time-honored in Anglo-American jurisprudence. So why are the American Civil Liberties Union, the criminal defense bar, and Sen. Patrick Leahy, Vermont Democrat, chairman of the Senate Judiciary Committee, flailing Attorney General John Ashcroft's decision last week to monitor selectively federal detainee-lawyer communications to forestall terrorist crimes? The decision has been hyperbolically denounced as "terrifying," an "abomination," and the destruction of the "Sixth Amendment right to have a lawyer."

But the polemics seem unpersuasive.

The monitoring regime is measured. It applies to convicted criminals and other federal detainees whom the attorney general reasonably suspects "may use communications with attorneys or their agents to facilitate acts of terrorism." Inmates and their attorneys will be notified of the government's listening activities, and a so-called "Chinese Wall" will be erected between monitoring teams and federal prosecutors and investigators.

The wall will be unbreachable without a court order. Moreover, privileged attorney-client communications that extend to past but not prospective crimes will be discarded.

In sum, "Apart from disclosures necessary to thwart an imminent act of violence or terrorism, any disclosures to investigators or prosecutors must be approved by a federal judge." At present, the Justice Department is monitoring approximately 10 inmates.

Anemic thunderbolts have been hurled by Mr. Ashcroft's detractors. All law is a matter of degree, as soon as it is civilized. The attorney-client privilege is no exception. It cannot be exploited to plot or to facilitate future crimes, whether terrorist or otherwise.

For instance, advice given to facilitate client perjury at trial is unprivileged. Ditto when attorney-client communications, as under the Justice Department's monitoring scheme, may promote terrorist crimes. In the latter case, the government's interest in interception as at its zenith. The lives of thousands may be at stake, and thwarting a terrorist crime is invariably preferable to prosecutions after the carnage.

The monitoring is no covert or sneaky attempt to entrap the innocent or to frighten like the Gestapo. Both the inmate and the attorney are informed of the government's ear. To the extent such an alert blunts or forestalls terrorist crimes, who can complain? And the authentic attorney-client privilege remains unimpaired.

Communications pertinent to defending against past crimes will be unshared with investigators and prosecutors, and discarded. In other words, the inmate and his attorney can discuss without fear the strengths and weaknesses of the government's case, including defense strategy and tactics. The critics' "chilling effect" fretting is thus imaginary.

Mr. Ashcroft's monitoring but non-use of constitutionally protected attorney-client communications is no novelty. The Fifth Amendment privilege against compulsory self-incrimination provides an exact parallel. As the United States Supreme Court explained in Kastigar vs. United States (1972), the government may compel incriminating testimony, despite the privilege, if the suspect is guaranteed against its direct or indirect use in a criminal prosecution.

Legal novelty thus lies with Mr. Ashcroft's scourges. They would extend the attorney-client privilege from a shield to a gruesome sword, turning the biblical yearning for beating swords into plowshares on its head. The privilege should never be sacrosanct, even as to past crimes. Suppose a client confesses to a murder that has occasioned a death sentence for another. An execution is imminent. Shouldn't the attorney divulge to the world that his client is guilty to derail a wrongful execution? Wouldn't silence be monstrous?

Disclosure in urgent circumstances of customarily privileged communications is untroublesome. Despite a psychotherapy-patient privilege, communications that create a reasonable belief that a patient may kill or seriously injure others must be notified to the prospective victims or police to ward off a possible attack. That narrow exception to confidentiality has not shattered psychiatric practice. Supreme Court Justice Oliver Wendell Holmes in Panhandle Oil Co. vs. Mississippi ex. rel. Knox (1928) definitively answered the lawyer's time-worn operatic cry that exceptions will become the rule: " [N]ot while this court sits."

The Supreme Court also would check any Justice Department monitoring that targets detainees based on race, religion or ethnicity. More than a century ago, the high court pontificated in Yick Wo vs. Hopkins (1886):

"Though the law itself be fair on its face and impartial in appearance, yet if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution."

Neither does the monitoring without a court warrant offend the Fourth Amendment's prohibition against "unreasonable" interceptions of communications. The amendment's confidential enclave is bounded by reasonable expectations of privacy that society is willing to honor, according to Smith vs. Maryland (1979). And an inmate and his attorney cannot expect privacy when alerted that the government is listening. Nor would society accept as reasonable confidentiality that might be exploited to commit terrorism.

The nation's war on terrorism raises legitimate concerns over heavy-handed government tactics. But scrupulous care must be taken to differentiate between the legitimate and illegitimate. Otherwise, critics will sound like the boy who cried wolf.


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