Washington Post
November 10, 2001

Sen. Leahy, ABA Protest Ashcroft's Monitoring Order

By Helen Dewar

The chairman of the Senate Judiciary Committee yesterday fired off a furious letter protesting Attorney General John D. Ashcroft's decision to monitor conversations between lawyers and some clients in federal custody when it is deemed necessary to thwart violence or terrorism.

In a new low point in relations between the two, Sen. Patrick J. Leahy (D-Vt.) complained that cooperation between Ashcroft and Congress has become a "one-way street" since passage of anti-terrorism legislation last month. He accused Ashcroft of refusing to appear before the committee or to respond to questions about the number of people detained in connection with the Sept. 11 terrorist attacks.

Leahy gave Ashcroft a list of questions to be answered by Tuesday, including the constitutional basis for intercepting attorney-client communications. He also warned the attorney general to expect "prompt hearings on these matters."

Leahy's angriest reaction was reserved for the decision itself, which took effect immediately after it was published in the Federal Register last week. Ashcroft's rule permits the government to listen in on conversations and read mail between people in custody and their attorneys, for up to a year, if the attorney general certifies that there is "reasonable suspicion" that the inmate is using the contacts to "facilitate acts of terrorism" or violence.

The rule can apply both to convicted federal prisoners and to people who have been detained but not charged with a crime.

"I am deeply troubled at what appears to be an executive effort to exercise new powers without judicial scrutiny or statutory authorization," Leahy wrote. He said he had received no warning that Ashcroft was considering acting "unilaterally" in this sensitive area.

Ashcroft's action also drew sharp criticism yesterday from legal and civil liberties groups, including a statement by the American Bar Association saying the new policy could violate the rights of innocent people.

The Justice Department did not respond to inquiries about Leahy's letter but issued a statement describing the new rule as simply an extension of existing restrictions on certain inmates in terrorism-related cases. In a second statement, the department said only 13 of 158,000 federal prisoners would be affected. It did not say how many others might be added.

In his letter, Leahy said there are "few safeguards to liberty that are more fundamental than the Sixth Amendment," which guarantees a right to legal assistance in the criminal process. "When the detainee's legal adversary -- the government that seeks to deprive him of his liberty -- listens in on his communications with his attorney, that fundamental right and the adversary process that depends upon it are profoundly compromised," he wrote.

In the ABA's statement, President Robert E. Hirshon said the nation's largest lawyers group "is deeply troubled" by the rule. "We certainly understand the necessity to take all steps necessary, consistent with our Constitution, to prevent terrorist acts," Hirshon said. "But these new rules run squarely afoul of the Fourth and Sixth amendments to the U.S. Constitution."

Staff writer James V. Grimaldi contributed to this report.

Copyright 2001, Washington Post Company. All rights reserved.

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