Attorney-client privilege

You are one of the 600 or so people being detained by the federal government as a result of the September 11 attack and the first thing your attorney tells you is the Justice Department has allowed the Bureau of Prisons to monitor communications between people like you and their lawyers. If you truly are a terrorist, do you:

A. Confess all to your lawyer?

B. Start singing “God Bless America”?

The objective behind Attorney General John Ashcroft’s order to allow listening to what usually are private conversations is understandable but the means are mistaken. The order threatens “the right of the people to be secure … against unreasonable searches” under the Fourth Amendment and badly hinders the right “to have the assistance of counsel for … defense” under the Sixth Amendment. An attorney has a hard time representing a client who is not candid privately, but this order makes being candid very much not in the client’s best interest.

Portland attorney Robert Hirshon, president of the American Bar Association, points out that not only is the order constitutionally suspect and lacking the necessary action by Congress, but it could well work against the goal of catching terrorists. In recent comments submitted to the Bureau of Prisons, he points out that, under the order, “it is highly unlikely that a detainee will discuss any ongoing or planned future terrorist activity with his attorney or attorney’s staff. Rather, the inmate will presumably seek other means of communication. Thus, the government may not even succeed in blocking the communication; it may succeed only in blocking itself from learning its contents.”

One way the government might learn the contents of a terrorist’s conversation is through court-ordered wiretaps. The difference between these and what Mr. Ashcroft ordered is that the wire taps are secret and are approved based on some evidence that the person being listened to is likely an agent of a foreign power, even if that person is not believed to be committing or planning to commit a crime. Mr. Hirshon adds that this method allows an attorney to learn more about his client and improves the chances that a deal could be negotiated to provide government with more information than it would otherwise find.

Rather than allowing the courts to decide when the attorney-client privilege applies, Mr. Ashcroft in these cases vests that power to himself. The possibility of further action by terrorists in threatening enough; there’s no sense making matters worse by also threatening the Constitution.