Attorney-Client Privilege for Terror Suspects
On October 31, 2001, the Attorney General published in the Federal Register amendments to existing regulations, allowing the Department of Justice to monitor the attorney-client conversations of persons in custody whom the Justice Department suspects of being terrorists. This has been controversial and has stirred up much heated debate... This brief will not seek to present the legal arguments against or in favor of these changes, which can be obtained via the following links:
These changes are to be used when " .... reasonable suspicion exists to believe that an inmate may use communications with attorneys or their agents to further or facilitate acts of violence or terrorism .... ", with the intent that this monitoring be utilized " ... to deter such acts .....". Leaving aside the legalities, a couple of points are of interest:
If such monitoring is legal, then implementing the regulations as written seems rather counterintuitive .......
- Does the AG really believe that there are attorneys who are ready to assist their clients to continue to plan and execute terror (or be so unwitting as to unknowingly be co-opted as go-betweens)?
- And if we assume that attorneys are engaged in such activities and that law enforcement needs to prevent this resulting in further acts of terror, why would the DOJ implement the rules as follows? "...the monitoring is not surreptitious; on the contrary, the defendant and his or her attorney are required to be given notice of the government's monitoring" If the parties have been notified that they are being monitored how likely is it that they will discuss their plans openly? If the DOJ has reasonable grounds to suspect that a lawyer is engaged in such activity would it not be preferable to get judicial authorization to surveil the attorney to obtain information to roll up the other conspirators??
© SNi 12/28/2001