Taint Teams And Firewalls: Thin Armor For Attorney-Client Privilege

AuthorHeidi Boghosian
PositionExecutive Director, National Lawyers Guild. B.A. Brown University, M.A. Boston University, J.D. Temple Law School.

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Despite recent governmental inroads to bypass judicial independence, legal practitioners were still stunned when the United States government effectively announced an end to one of the oldest evidentiary privileges. Less than two months after the events of September 11, 2001, the Bureau of Prisons issued interim guidelines permitting the Department of Justice to monitor or review communications between federal inmates and their counsel, absent judicial authorization.1 These laws are especially disproportionate in that they eviscerate the attorney-client privilege, thereby gutting the Sixth Amendment's right to counsel and returning only a minimal benefit to protect against future terrorist attacks.2

Similarly disturbing were the circumstances surrounding the indictment on April 9, 2002, of veteran criminal defense attorney Lynne Stewart. She was charged with conspiring with one of her high-profile clients in violation of the new guidelines. Although Attorney General John Ashcroft publicly announced that the Stewart case signified the first exercise of his authority to monitor attorney-client communications since the enactment of the USA PATRIOT Act,3 in reality, the government had already been secretly monitoring the 62-year-old New Yorker for three years.4 Ashcroft traveled to New York for a press conference to announce the indictment and subsequently appeared on the Late ShowPage 16with David Letterman. The message he sent to lawyers was direct and unambiguous: represent accused terrorists and you too may be arrested.5 Since lawyers are already under an ethical duty not to assist in the commission of crimes and given that exemptions from that privilege were previously enacted to permit covert monitoring,6Ashcroft's new restrictions are clearly an attempt to intimidate lawyers into not representing a specific class of defendants and to distract the public from focusing on existing flaws in terrorism intelligence gathering.7

I The Oldest of the Privileges

The attorney-client privilege is an exclusionary rule of evidence; suppressing evidence in order to preserve a relationship.8 The oldest of the "privileges,"9 it originated in Roman law10 and further developed through the British common law system. "Its purpose is to encourage complete and open communication between lawyers and their clients and thereby promote broader public interests in the observance of law and administration of justice."11 The rule is premised on the lawyer's need to provide legal assistance to his client "free from the consequencesPage 17or the apprehensions of disclosure."12 Claiming this privilege on behalf of a client is an attorney's ethical obligation.13

Today the attorney-client privilege invokes several constitutional principles, including the Sixth Amendment right to counsel in criminal proceedings, the Fourth Amendment right to be free from unreasonable searches, the Fifth Amendment right to have due process of law, which includes the right of the accused to have the effective and substantial aid of counsel, and the right against self-incrimination, including a reasonable right of access to the courts.

The scope of the privilege is well documented and is as recognizable to the public as the Miranda rights. A 1974 New York homicide case drew significant attention to the special relationship between attorney and client, spurring a national debate about the ethical duties of criminal defense attorneys. Robert Garrow, arrested in connection with a woman's death, told his two lawyers, Francis Beige and Frank Armani, that, in addition to committing this woman's murder, he also killed three others. Garrow went on to describe the location of the other victim's bodies. Yet, even after Garrow's death, Beige and Armani still refused to violate Garrow's confidential disclosure, asserting Garrow's waiver of this privilege as the only acceptable imprimatur.14 Upholding Beige and Armani's action, the Supreme Court held in Swidler & Berlin v. United States that the attorney-client privilege survives even after the client is deceased.15

II Court Stripping in the Name of National Security

Recent history evidences the government's frequent willingness to restrict civil liberties and expand police powers during times of crisis in the name of national security. Following the 1993 bombing of the World Trade Center in New York City and the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Congress passed several laws restricting the ability of courts to review executive actions. The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), the Illegal Immigration Reform and Immigrant Responsibility Act Page 18(IIRIRA), and the Prison Litigation Reform Act (PLRA) eradicated the remedy of federal court intervention for individuals affected by those laws. These "court stripping" laws, specifically targeting death row inmates, immigrants, and prisoners, undermine the judiciary's obligation to preserve and protect an individual's rights. Additionally, the recently passed USA PATRIOT Act16 contains several provisions that virtually eliminate judicial review of law enforcement activities while enhancing the scope of permissible governmental surveillance and wiretapping, increasing criminal penalties, and lengthening the statute of limitations.17 Legislation that disposes of judicial oversight and consolidates broad new powers under the executive branch serves only to imperil the basic fundamental rights of all Americans by proffering a feigned sense of security.

The three "court-stripping" laws enacted by Congress in 1996 significantly and independently undermined the rights of many while failing to even remotely achieve their proclaimed objectives. One goal of the 1996 habeas corpus restrictions was to expedite and simplify the death row appeals process. However, the resultant effect was an increase in the complexity and length of litigating capital appeals due to confusion created by the new legislation. Similarly, the 1996 anti-immigration provisions and the 1996 IIRIRA, passed under the mistaken assumption that the Oklahoma City attack was perpetrated by Middle Easterners, intended to focus on controlling foreigners' rights. The laws placed severe restrictions on immigrants' access to judicial review both by creating the process of "summary exclusion" and by enacting provisions to deport non-citizens who committed crimes. Yet these laws, stripping away hard-earned civil liberties, were hastily passed in reaction to the quickly disproven theory that immigrants committed the bombing. The result of these laws is that the ability of capital defendants to challenge the constitutionality of their convictions as well as immigrants' ability to challenge decisions by the Immigration and Naturalization Service (INS) in federal court is severely limited.18

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Additionally, these laws allowed for the deportation of long-time residents for the commission of minor infractions that occurred years ago, obstructed refugees from receiving asylum,19 and reduced judicial oversight of the INS, a department traditionally requiring some judicial check on its exercise of power. Aside from contracting our constitutional protections, these laws have done little else to aid in the apprehension of so-called terrorists.

These ill-conceived "court stripping" laws serve only to retract years of progress made in the areas of racial justice and equality with no documentable success in deterring criminal or terrorist activities. The Bureau of Prisons' new rules governing attorney-client communications provide the most recent example of judicial bypassing under the guise of protecting national security interests. These new regulations, like the "court-stripping" legislation that preceded them, seem destined to fail in their stated objectives of combating terrorism.

III Costly Interception-No One Wins

Traditionally, communications between inmates and their lawyers have not been subject to usual prison rules for monitoring inmate communications. Yet after the bombings of the World Trade Center and the Alfred P. Murrah Federal Building in the mid-1990s, the government imposed "special administrative measures," or SAMs, including solitary confinement, interception of mail, and restrictions on telephone calls and visitors, on certain federal inmates. Before imposing a SAM, courts required a specific determination that the monitoring was "reasonably necessary" in order to deter future acts of violence or terrorism. A further protection limited SAMs to 120-day periods, renewable upon reap-plication. Two similar laws permitted the interception of attorney-client communications-Title III of the Omnibus Crime Control and Safe Streets Act of 196820 and the Foreign Intelligence Surveillance Act.21 These laws did not entitle the interceptee to notice of monitoring. Yet, even these two provisions required a reasonableness and probable cause standard as a check to protect against governmental abuse.

Conversely, no probable cause requirement exists under the new Bureau of Prisons rule. To monitor inmates and their attorneys or agents, the Attorney General need only certify that "reasonable suspi-Page 20cion" exists to believe their communications, both verbal and written, are being used to facilitate acts of terrorism.22 The new rules also remove the 120-day limitation and permit monitoring orders for one-year periods with indefinite renewal for additional one-year...

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