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Our rights are on trial in war against terrorism
Union Leader ^ | Nov 18 2001 | Jack Kenny

Posted on 11/18/2001 1:56:53 AM PST by 2Trievers

OPERATION Enduring Freedom appears to be succeeding thus far in Afghanistan. It remains to be seen, however, how enduring freedom will be in the war against terrorism at home.

Attorney General John Ashcroft has recently authorized federal prison authorities to eavesdrop on attorney-client conversations among persons suspected of posing a direct threat to national security. In the words of the Justice Department statement announcing the policy, communications between inmates and their lawyers will be monitored when "reasonable suspicion exists to believe that a particular inmate may use communications with their attorneys or their agents to further or facilitate acts of terrorism."

The policy has been criticized by civil liberties groups, defense lawyers and the American Bar Association as an abrogation of the long-standing principle of attorney-client confidentiality. It is seen as a violation of the suspect's Sixth Amendment right to assistance by legal counsel, since an attorney's effectiveness in mounting a defense may be undermined by the eavesdropping.

It may also violate Fifth Amendment protection against self-incrimination, since the suspect might well admit potentially incriminating details to his lawyer that he would not confess to police or prosecutors.

According to a spokesman for the Justice Department, however, the information obtained would not be used in criminal cases against the prisoners.

"The team that listens is not involved in the criminal proceedings," said Mindy Tucker. "There's a firewall there." But Constitutional rights should not have to depend for their protection on a "firewall" built within a government agency, a firewall that only that agency can observe and enforce. The rights embody principles and procedures that strictly limit where the eyes and ears of government may go.

Indeed, possible Fifth Amendment violations are only a part of the potential abuse that may follow from allowing government officials to listen in on attorney-client conversations. Typically, lawyers discuss with their clients the kind of defense they will employ and how they will attempt to counter the evidence put forth by the prosecution.

Allowing the government to eavesdrop is like letting a football team listen in on its opponent's huddles and locker room talks.

Under the Ashcroft order, the federal officials don't even have to go before a judge to get authorization for the eavesdropping. An independent magistrate might, after all, have a different perspective on whether the government's suspicions about a suspect's lawyer constitute "reasonable" grounds for violating the confidentiality.

"If they were to go to a detached magistrate, that judge is going to make a decision as to whether it's appropriate for the government to do that," said Richard Hesse, professor emeritus of Constitutional Law at the Franklin Pierce Law Center in Concord.

"They'd say, 'We'd like to discover what (the inmate) is saying to his lawyer.' And the judge would say, 'Of course you'd like to discover that. But the Constitution doesn't allow you to do that, so I'm not going to give the order.'"

Hesse argues that invading the realm of attorney-client privilege ought not be regarded as "merely a technical violation because we're dealing with an emergency. It is exactly when you're dealing with an emergency that you need to pay attention to basic rights. If we set them aside then, what we're saying is, the only time we afford people certain rights is when it doesn't matter."

In times like these, it may be easy to lose sight of the distinction between "suspect" and "criminal" (or "terrorist"). In the days following September 11, more than 1,000 people were arrested and an undetermined number, believed to be in the hundreds, are still being held without formal charges.

Lengthening the time a suspect may be held without charge is but one of the new powers Congress has given to federal law enforcement under anti-terrorist legislation. Secret searches have also been authorized in federal cases and wiretapping and electronic surveillance powers have been expanded.

Congress has rejected such measures in the past on constitutional grounds. But there appears to be less concern about constitutional rights in these days of "Enduring Freedom."

More than 200 years ago, James Madison warned that those in positions of authority would use every "exigency" as an opportunity to expand the power of the government. America in the 21st century seems determined to prove Madison's prophecy.

There are even serious proposals to require everyone, citizens and aliens alike, to carry national ID cards equipped with computer chips bearing all manner of data about us. So don't be too quick to dismiss concerns about the rights of "suspects."

Soon we may all be suspects.

Jack Kenny is a Manchester writer.


TOPICS: Constitution/Conservatism; Editorial
KEYWORDS:
I hear the sound of whittling. I don't like it. I don't like the way it makes me feel.
1 posted on 11/18/2001 1:56:53 AM PST by 2Trievers
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To: 2Trievers
How to crash "national ID cards" before they are even legislated
2 posted on 11/18/2001 2:08:42 AM PST by glc1173@aol.com
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To: glc1173@aol.com
Thanks glc
3 posted on 11/18/2001 2:13:50 AM PST by 2Trievers
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To: 2Trievers
Operation "DECLINING FREEDOM"
4 posted on 11/18/2001 2:21:15 AM PST by NoControllingLegalAuthority
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To: NoControllingLegalAuthority
You've got that right. I hear a giant flushing sound.
5 posted on 11/18/2001 4:11:31 AM PST by 2Trievers
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