Washington Post
November 9, 2001

U.S. Will Monitor Calls to Lawyers

By George Lardner Jr.

WASHINGTON -- The Justice Department has decided to listen in on the conversations of lawyers with clients in federal custody, including people who have been detained but not charged with any crime, whenever that is deemed necessary to prevent violence or terrorism.

Attorney General John D. Ashcroft approved the eavesdropping rule on an emergency basis last week, without the usual waiting period for public comment. It went into effect immediately, permitting the government to monitor conversations and intercept mail between people in custody and their attorneys for up to a year at a time.

The move, which the Justice Department said was necessary "in view of the immediacy of the dangers to the public," stunned defense lawyers and civil libertarians. They assailed it as an unconstitutional attack on the right to counsel and, in the words of American Civil Liberties Union official Laura W. Murphy, "a terrifying precedent."

The monitoring of attorney-client conversations is the latest in a series of extraordinary law enforcement measures the government has taken in response to the Sept. 11 terrorist attacks on New York and Washington.

President Bush last week signed the USA Patriot Act, a bill that gives the government a freer hand to conduct searches, detain or deport suspects, eavesdrop on Internet communications, monitor financial transactions and obtain electronic records on individuals. The administration also has promised to crack down on immigration violations, Congress is considering legislation to tighten airport security, and Ashcroft announced yesterday that he is reorganizing the Justice Department and FBI to concentrate on terrorism.

Until now, communications between inmates and their attorneys have been exempt from the usual monitoring of social phone calls and visits at the 100 federal prisons around the country.

According to a summary published in the Federal Register Oct. 31, the monitoring will be conducted without a court order whenever the attorney general certifies "that reasonable suspicion exists to believe that an inmate may use communications with attorneys or their agents to facilitate acts of terrorism."

The definition of "inmate" previously covered only people in custody of the federal Bureau of Prisons, but it was changed to cover anyone "held as witnesses, detainees or otherwise" by INS agents, U.S. marshals or other federal authorities. Since Sept. 11, the government has detained nearly 1,200 people, many on immigration violations. The Bush administration has declined to say how many have been released.

Explaining the new rule, the Justice Department said authorities "may have substantial reason to believe that certain inmates who have been involved in terrorist activities will pass messages through their attorneys (or the attorney's legal assistant or an interpreter) to individuals on the outside for the purpose of continuing terrorist activities."

The president of the National Association of Criminal Defense Lawyers, Irwin Schwartz of Seattle, denounced the eavesdropping as "an abomination" and said it would be challenged in court at the first opportunity.

"The Code of Professional Responsibility is quite clear: a lawyer must maintain confidentiality," Schwartz said. "If we can't speak with a client confidentially, we may not speak with him at all. And if we can't do that, the client is stripped of his Sixth Amendment right to have a lawyer."

The Justice Department said it will set up "procedural safeguards" to protect the right to counsel. Inmates and their attorneys will be notified "of the government's listening activities," and the monitoring will be done by a special "taint team" that will not disclose what it hears to federal prosecutors or investigators without approval by a federal judge, officials said.

Records of clearly privileged information, such as a discussion about a client's defense, will not be retained by the monitors, the department said. "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," it added.

The critics were not mollified. "Who's going to be on the taint team?" asked Kate Martin, director of the Center for National Security Studies, a nonprofit group in Washington. "The government says it's building a mosaic, processing thousands of bits and pieces of information that may seem innocuous at first glance. How is the 'taint team' going to know if something a person says to a lawyer is part of the mosaic or not without sharing it with others? This seems to be a useless safeguard. What if they think what they overhear is in code?"

Martin said monitoring of witnesses and others who have not been convicted would be "particularly outrageous." Murphy, who is director of the ACLU's Washington national office, agreed, saying, "the idea that this could be happening to innocent people is really disturbing." A lawyer's effectiveness, she added, can be dramatically diminished if the government is listening in, making a client fearful of disclosing all that the attorney needs to know to mount a forceful defense.

The attorney-client eavesdropping authority is an addition to the "special administrative measures" the government has imposed on certain inmates since the World Trade Center bombing in 1993 and the bombing of a federal building in Oklahoma City in 1995. They include solitary confinement, interception of mail and restrictions on visitors and telephone calls. But until Ashcroft signed the new regulation, they were limited to 120-day periods. Now, all such steps can be ordered for a year at a time and renewed indefinitely at one-year intervals.

Those under "special measure" regimes include Omar Abdul Rahman, the blind sheik convicted in the 1993 World Trade Center bombing; Abdul Hakim Murad and Wali Khan Amin Shah, convicted of conspiracy to blow up 12 civilian jumbo jets; Eyad Ismail and Ramzi Yousef, two others convicted in the WTC bombing; Wadih Hage, convicted of conspiring to kill Americans around the world; and Mohammed Saddiq Odeh and Mohamed Rashed Daoud Owhali, who were convicted in the 1998 bombings of the U.S. embassies in Kenya and Tanzania.

At a trial last June, an Algerian witness said Rahman issued a "fatwa" or religious ruling from prison, telling followers to "fight Americans and hit their interests everywhere."

Staff researcher Lynn Davis contributed

to this report.

Copyright 2001, Washington Post. All rights reserved.

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