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.

Welcome to the Police State

Not to say "I told you so", because I'm preaching to the choir, but this is just another step towards ensuring that the citizens of this modern day Republic can become subjects of an oppressive government again.

This is completely useless against terrorists. Terrorists don't hire lawyers and chat about their actions beforehand. Terrorists plan long and quietly, and then without warning even their friends and roommates, they blow shit up.

The only excuse for policies such as this is to enable fishing expeditions where people "suspected" of something can have their rights and privacy stripped away from them without them even knowing it.

Re:Welcome to the Police State

Oh, you're just paranoid, when are you going to learn to trust President Ashcroft?

Re:Welcome to the Police State

"Honestly, I think we need to cut the government a little slack and remember that 9/11 really happened."

That shouldn't matter.

Once upon a time, the Constitution was worth a whole lot more than just 6000 lives.

Re:Welcome to the Police State

Blockquoth the poster:

That's an exaggeration to make the point, but I think we can be a little flexible and recognize when very practical problems need a resolution, like terrorists using lawyers to plan their next attack. If we ever caught bin Laden and put him in jail, does anyone doubt that is exactly what would happen?

Um, I doubt it. I think many sane people doubt it. Do you think that guys like that will ever assume they are not being bugged, no matter what constitutional guarantees are declared? The effect of this is to chill attorney-client privilege in all cases for no demonstrable gain. The power to monitor exists already... it's just locked behind that quaint, old-fashioned stumbling block, judicial oversight .

The DOJ is proposing limiting a time-honored and well-established right. It's doing so despite the existence of mechanisms to achieve the stated ends. It's doing so without offering a single instance wherein this behavior has occured. It's doing so without offering a single instance wherein the new rules would have prevented a terrorist act. I believe it's reasonable to ask for proof and evidence before sacrificing a constitutional guarantee, even in a small way.

This should not be that surprising

I dont know if you know this, but the I remember the 'BAR' made a new resolution that if a lawyer knows his 'client' is actively breaking the law that he needs to report him. It seems that there seems to be a shift from the wildly permissive atitude of a lawyer-client privacy to a more balanced view, but if this CNN report is true, then who isnt safe from being 'listened' in on, without any due process.

Re:This should not be that surprising

Three things...

1) Anyone who is not a federal inmate is safe. For now.

2) "inmates being held must be told of the monitoring"

3) "Such monitoring...has been allowed in the past through court order."

This is not the giant sweeping step torwards a police state that many are making it out to be. More it's a baby-step, or even a subtle side step torwards said police state. Incremental changes do need attention brought against them, but incremental changes call for moderate reaction. If you go shouting "Ahhhhh! Police state! Police state!" at every little reduction of liberty, most people will become desensitized to the reaction.

Where does attorney-client privilege come from?

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?

Re:Where does attorney-client privilege come from?

(IANAL, but am someone who tries to keep current on civil liberty issues... so take everything with a grain of salt...)

One spouse cannot be forced to testify against the other because, under the law, they are often considered a single individual. This is why it too so long for spousal rape and domestic violence laws to be passed - it wasn't (just) a bunch of good old boys who didn't see a problem, but a delicate balancing act between a centuries old tradition and modern concerns - the legislatures wanted to avoid accidently wiping out all marital privilege. It's also why homosexual spouses want legally recognized marriages - marriage includes a lot of rights which no civil contract, alone, can provide.

IIRC, lawyer-client privilege follows a similar argument. Everyone is expected and required to understand the law, but that requires the ability to freely consult experts (lawyers) for advice. So the law squints and say that lawyers are in essence an extension of the person *when discussion prior acts*, or to a limited extend future acts. Same thing with cleric-penitent privilege and doctor-patient privilege.

However, lawyers have never been able to give unfettered advice regarding future actions by the client. E.g., your lawyer can't be compelled to reveal that you admitted killing a business rival (N.B., "killing" is an act, "manslaughter," "murder" et al are legal evaluations), but it's a very different thing if you ask your lawyer how you can kill a business rival in the future and face no more than a manslaughter conviction.

It sounds like the DoJ is just seeking to formally recognize that some detainees may be seeking to use their lawyers as agents of future violence, not just sources of legal advice, and wish to prevent that. Risky, but not unreasonable.

Re:Where does attorney-client privilege come from?

The attorney-client privilege is a basic component of the "Right to the Assistance of Counsel" secured to the Sixth Amendment to the Constitution of the United States. The main exception to the privilege involves disclosures about future crimes, but -- until now -- the government has not sought to "enforce" this exception by openly eavesdropping on attorney-client conversations. A classic attorney-client privilege problem arises when, in the middle of a trial, the defendant confesses to his (or her) lawyer. Should the lawyer disclose the confession to the judge? (Not in the US.) How vigorous should the lawyer be in asserting his (or her) client's innocence? (This should be unaffected.) What if the client wants to testify and offer testimony which -- because of the confession -- the lawyer knows to be false? (A lawyer cannot prohibit a defendant from testifying but it's wrong to assist the defendant in presenting a story that the lawyer knows to be false. One answer is simply to ask the defendant to "tell the ladies and gentleman of the jury what happened."

In the United States, therapist confidentiality is secured by statutes (just about every state recognizes some sort of therapist confidentiality) or by rule -- the United States Supreme Court relied on the Federal Rules of Evidence when it recognized a psychotherapist-client privilege in 1996.

If the AG's present proposal is adopted, and upheld by the courts, it will be another victory for those seeking to destroy the "American way of life."

When a shepherd visibly counts goats as sheep, who will do business with him in the market place when he comes to sell his flock?

Attorney-client privelege.

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.

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.

After you are convicted of a crime, you have no expectation of privacy in prison. Before you are convicted of a crime, you are "innocent until proven guilty" and retain all your rights as a citizen (not that that seems to mean much to Mr. Ashcroft). Thousands of people with "funny sounding" names were swept up after 9/11 and remain behind bars; that does not mean that they are guilty of anything.

sPh

Chilling effects on defendant speech...

The biggest problem I see with this is that even if the DOJ followed the rules and didn't misuse the information, there's no way for a defendant in criminal prosecution to be sure. If you are being prosecuted and you know that your every conversation with your attorney is being listened too, how forthcoming will you be with them? You can't assume that the DOJ isn't breaking their own rules, so you clam up. The end result is that defense attorneys may have less information to work with and will be unable to build a proper defense for their clients. Eventually the courts will probably tell the DOJ they can't do this but in the mean time, how many people's legal cases will be effected by this new policy.

I find it bitterly ironic that we here Bush and crew saying that we are fighting for our way of life and for civilization, yet at the same time, they are doing their best to damage the freedoms that are key to that way of life. They say we need to go on with life as usual and not let the terrorists effect us, but it's not like they are leading by example here.

Read the article

This only applys to people who are granted a special administrative measure which applys to less than a tenth of a percent of people. And only to people who the AG says "reasonable suspicion exists to believe that a particular inmate may use communication with attorneys or their agents to further or facilitate acts of terrorism".

I don't agree that they should be doing this in the first place, but it's not for everyone. I guess this is just more /. sensationalism at work.

make sure you read this part:

"The Justice Department said less than one-tenth of 1 percent of federal inmates are subject to the provision that allows such monitoring. It pointed out most inmates subject to special administrative measure have no relation to the terrorism investigation, spawned by the deadly September 11 hijackings and attacks."

I'm not saying I agree with this, but at least keep in mind that this is limited in scope. Yeah, yeah, slippery slope and all that, but while you're fighting against stuff it's important to realize what you're fighting against.

This is not "let's completely throw away client-attorney privilege", it's "let's recognize that sometimes national security takes precedence". You still may disagree with this, but at least fight the correct target.

Re:make sure you read this part:

First they came for the terrorists...

Then they came for the murders...
Then the rapists...
The burglars,
the shoplifters,
traffic violators.

Read Larry Niven's "Organlegger" series from the late 60's / early 70's, where he posited a government that sentenced people to death for traffic violations so that it could harvest their organs.

Then read news accounts from 2000 about how the government of the PRC selects prisoners' execution dates based on the need for transplant organs.

Then read your post and its parent again.

sPh

DOJ Theme song

99 civil rights on the wall, 99 civil rights, take on down, throw it away, 98 civil rights on the wall ....

When will the time come?

When will things have gone far enough to justify a revolution? We are taliking about basic rights and freedoms here! These are rights and freedoms that PEOPLE DIED FOR!!!!Earlier today there was an anouncement on slashdot that now even math can be patented. Governmnet and corperations can now TELL US WHAT WE CAN DO WITH OUR OWN THOUGHTS AND IDEAS!!!Now we will be loosing our right to laywer clien confidentiality! This is argualby one of the most basic rights that we have! so when will the relolution come? how much longer can this go on? I say that a revolution would be moraly acceptable now. I do not think that that would be the most likely way to achieve the goal of getting our freedoms back. Nor do I think it would be the best way. I do however think that RIGHT NOW a revolution would be acceptable. That is scarry! If and when the revolution comes I suggest that the DOJ is the first against the wall. Then the Republicans. Then The Democrats. Then Microsoft! Wohoo! Just what I think.

Clarifications

There are a few things in the article which are not mentioned, or perhaps even misrepresented, in the summary. When I first read the summary, I was both surprised and worried, because it sounds pretty rough.

But as the CNN article states, this monitoring has many restrictions. First, the detainee must be informed of it, so there is no potential for the type of abuse which would make all detainees afraid to speak to their attorney; everyone would know when they were subject to such monitoring. Second, and even more importantly, this monitoring cannot be used as evidence against the detainee. The summary doesn't mention this, and this is crucial. The monitoring can only be used for informational purposes, to stop other crimes. And it is common that detainees communicate with the outside world with their lawyers, and I'm sure we can all believe there are situations where the detainee is communicating details of future crimes to their associates.

I guess one thing is true is that this probably has less to do with terrorism than the administration would have us believe. It seems as though this is something which would be more effective against organized crime than terrorism.

But once you actually read the article, this isn't such a big deal, and, in the grand scheme of things, might even be a good idea.

Confuse the public, then take their rights away

That move...is necessary to help "prevent further terrorist acts,"

The article goes on to state

The Justice Department said less than one-tenth of 1 percent of federal inmates are subject to the provision that allows such monitoring. It pointed out most inmates subject to special administrative measure have no relation to the terrorism investigation, spawned by the deadly September 11 hijackings and attacks.

That prevents further terrorist acts, how? By monitoring non-terrorists? I'm gonna go prevent terrorism by washing my car.

Slashdot Headline out of line

Did you read the article or are you just posting inflamatory material for kicks. First, the Government never said Council was being denied. Second, they put up huge road blocks to insure that Government lawyers don't have access to privledged information. Third, they tell the prisoners that this particular action is being taken. All of this is safeguarded by a requirement that they have to show to a judge that there is a good chance the prisoner knows something about future terrorist attacks.

Not to mention that if a future terrorist attack did happen and they could have prevented it by listening in on the interviews, loss to life could be catastrophic.

Remember the life you save, could be your own.

This won't fly.

First, note the link on the attached story: this is a *proposed* rule, not an accepted one.

Second, the attorney-client privilege is one of the most strongly-defended privacy rights. While it is true that attorney-client privilege does not protect prospective crimes, in order to break the privilege, the government must be able to convince a judge that there is a very strong likelihood of the commision of a crime in the near future. Being in jail, even for a heinous crime, is not grounds for a strong suspicion.

Bottom line: They may try this, but the first judge who sees it will throw it out.

all in the name of 'anti-terrorism'

seems you can get anything passed thru today, if you say its in the name of anti-terrorism.

how different is this from the terrorists view; in that they also feel that the end justifies ANY means?

does the end really justify ANY means? isn't how you get there just as important as the end result, itself?

SURE you can expect the gov't to keep their word..

... just ask any Native American how good the word of our government is.

Expect COMPLETE PARITY between the laws governing "terrorism" and the war on "drugs".

The irony is, the people pushing for these laws are the same people who screamed bloody murder about Ruby Ridge, or Waco Texas. Now it's their turn.

And since ANONYMOUS TIPS can be used to gain a search warrent, I sincerely doubt the claim "none of this is admissible". Just launder you ill-gained evidence through an anonymous tip, get a warrant, and use that evidence instead. There are enough loopholes to fit a fleet of 18-wheelers through.

Naivety

<paranoia>
What makes you think the police, Federal or otherwise, don't already try and listen in on lawyer-client communications? I'm sure they get all sorts of hints and tidbits. They can't use the recordings in court, of course; all they have to do is make up a new train of investigation that (re)leads them to the evidence.

The only difference now is that they no longer have to go to the trouble.
</paranoia>

Re:ACLU being reosonable? That is surprising!

There's been quite a few cases already where they have been against allowing kids to pray in schools (which kind of seems like a civil liberty to me!)

Should a group with the name "American Civil Liberties Union" be for or against allowing children to worship as they wish?

It seems to me that a reading of the ACLU position on school prayer gives you the answer - the ACLU is very much in favor of letting children worship as they wish. Or not, if they don't wish to.

Here is the ACLU position:

If a child in public school wishes to say grace before eating a meal in the school cafeteria, or carry a bible to school to read in between classes, she has the right now under the First Amendment to do so. That is religious freedom.

But if the school conducts an official grace before meals so that every student in the cafeteria is subjected to it whether she believes in it or not, that is not permitted by the First Amendment because it reflects official government endorsement or sponsorship of religion, and imposes religious beliefs on children whose families may not share them. This is true even if the grace ceremony is "student initiated." Individual rights means that any student can say grace, but no student can be subjected to a religious ceremony because the majority outvotes her. That is not religious freedom.

Braving the knee-jerks

There is a difference between gathering evidence for prosecution and gathering intelligence for self defence.

Such intelligence could not be admissible in court, but it just might stop the next attack.

There is no forfeiture of rights here.

Re:Why I am not against this

Hello, former Attorney General Ed "by definition, all suspects are guilty" Meese!

We are not talking about people convicted of a crime. We are talking about people who have been DETAINED pending trial... possibly even without formal charges filed yet. These are people who can't make bail, who are considered flight risks, etc., but not convicted of any crime.

And while there are some practical reasons to support this change (esp. if the DoJ establishes a "wall" between the people who listen to these conversations for insight into future acts of terrorism and those who prosecute the individuals for any crimes previously committed), it has one huge constitutional drawback - it establishes two standards of treatment for defendants. If you're detained, the DoJ can eavesdrop on your conversations with your lawyer. If you can post bail, they can't. (Think they'll be able to bug lawyer's offices? ha ha ha ha!)

Re:Why I am not against this

i.e. those who it's damn well likely have committed a crime.

You misspelled 'those who it's damn well likely the police can make a profit from the arrest of.'

HTH

Ignorant

So you want to throw the "innocent until proven guilty" assumption out the window then, huh? Why do we even bother to pretend we're a democracy anymore? Assholes like you want to give all authority over to the government without assigning any accountability or oversight. We'll just trust them to always do what's right? You're ignorant and more of a danger to the American way of life than any terrorist out there.

Good grief...

... because they're PRISONERS. As far as I'm concerned, they have no rights whatsoever. They are the ones that violated OUR rights in one way or another. They are detainees, NOT convicted of anything, and in general NOT EVEN CHARGED with anything. One man was held for three weeks because he called the FBI and told them that he had rented a room to one of the hijackers for a while...

I guess landlords are automatically criminals, eh?

Re:Why I am not against this

Well I disagree with you. I think people are innocent untill proven guilty. Hey thats amazing, so did the people that founded our country.
Its great that I have the right to say this isnt it? Well along the same lines, I have some other freedoms, that the government is supposed to protect (not provide mind you), as well. See these if nothing else:

• Bill Of Rights [nara.gov]
• The Declaration of Independence [indiana.edu]
  
  

This is a clear abuse of power against our rights.
Pull your head out of the police state cloud, a loss of freedom does not ensure greater safety in general for the populace.

Re:Why I am not against this

Please see this [slashdot.org] post, I reneged what I had said in total error. I was speaking out of ignorance.

http://slashdot.org/comments.pl?sid=23590&cid=25 46 469 for the goatsex weary

Re:Does not really suprise me

Who's at war? The US isn't. There has been no declaration of war, so the government cannot take on wartime powers. Truman found that out when he tried to force striking miners back to work during Korea.

And even if we were at war, what make you believe that they'd repeal these repressive laws and civil rights violations after the war?
The federal government is using this as an excuse to move one more step towards the police state.

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