Our Constitutional rights are under attack by an official in our federal government who should be responsible for insuring them, U.S. Attorney General Alberto Gonzales. Among other intrusions allegedly authorized by the USA PATRIOT Act adopted shortly after September 11th, Gonzales has upheld the policy that attorney-client communications can be monitored without judicial approval.In February 2005 a defense attorney representing an imprisoned Islamic militant was charged with aiding terrorism based on court ordered eavesdropping on her conversations with her client. U. S. Attorney General John Ashcroft immediately and opportunistically parlayed the publicity surrounding this incident to claim that non-court-ordered eavesdropping was essential to national security and implemented new Justice Department regulations which allow him to selectively monitor attorney-client communications without any judicial oversight. This infringement on attorney-client communications marks an unwarranted and dangerous assault on our Constitutional protections and due process rights that should concern all citizens.
The justification for this intrusion into the protected attorney-client communication is national security in the aftermath of September 11th and is set forth in a directive that was issued by Gonzales' predecessor, Attorney General John Ashcroft. This directive authorizes the Department of Justice to monitor conversations between certain types of prisoners and their lawyers. The directive adopts a standard of "reasonable suspicion" as the determining factor whether to monitor conversations, but will apply to only a very narrow subset of detainees as determined by his office.
There are many serious problems with this interference with our constitutional protections and our well-established and well-reasoned rules of due process. Although too numerous to mention all here, it suffices to point out that the directive was adopted without direct authorization by Congress and with no opportunity for comment. Because the directive requires no judicial approval, the attorney general has unfettered authority to determine who may have confidential conversations with attorneys and who may not.
Our forefathers were careful not to allow too much power to reside in any one branch of government and wisely sought to protect certain important rights in the first ten amendments to our Constitution. This new directive dangerously erodes longstanding Fourth Amendment privacy protections and Sixth Amendment guarantees of effective assistance of counsel. Communications of this nature have traditionally been covered by the attorney-client privilege that is deeply rooted in the American legal system and its common-law heritage, and is among the most fundamental bases for due process and fairness in our justice system.
The prospect that conversations between client and counsel are being monitored chills the free flow of information that facilitates the attorney's proper investigation and preparation of the client's defense. In so doing, the directive seriously undermines the ethical rules that define the obligations of attorneys to courts, the profession, clients and equal justice.
As Stanford Law Professor Deborah Rhode wrote recently in a recent New York Times article on this subject, "The last time an attorney general invoked national security justifications for warrantless wiretaps was during the Vietnam war protests. In denying the government that power, the Supreme Court quoted an observation from Chief Justice Earl Warren that has obvious relevance today. 'It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties…which make the defense of the Nation worthwhile.'"
The California Public Defenders Association (CPDA) joins other organizations in strongly condemning this action and the several other actions being taken by the administration in the name of national security that erode our basic constitutional rights and protections.
Sincerely,
Kathleen Cannon
President, California Public Defenders Association
