In October, Attorney General Ashcroft approved an "emergency order" that permits Department of Justice officials to monitor the conversations that lawyers have with clients who are in federal custody, including people who have been detained but not charged with any crime. The rule unilaterally grants the attorney general the absolute power to strip any person in federal custody, including U.S. citizens, of the right to communicate confidentially with an attorney, a violation of rights protected by the First, Fourth, Fifth and Sixth Amendments. It is a profound violation of fundamental legal and constitutional principles at the very core of our system of justice.
According to the Department of Justice order, published in the Federal Register on Oct. 31, the secret monitoring of conversations will be initiated without a court order or finding of probable cause, and whenever the attorney general believes "that reasonable suspicion exists" that detainees may "use communications with attorneys or their agents to facilitate acts of violence or terrorism."35
In a letter to Ashcroft in November, Chairman Leahy wrote that there are "few safeguards to liberty that are more fundamental than the Sixth Amendment," which guarantees a right to legal assistance in the criminal process. "When the detainee's legal adversary - the government that seeks to deprive him of his liberty - listens in on his communications with his attorney, that fundamental right, and the adversary process that depends upon it, are profoundly compromised."36
The extreme nature of Ashcroft's order becomes clear when compared with requirements the government must meet before abridging other constitutional protections. Before searching an individual's home or tapping a person's phone, law enforcement officials generally must demonstrate probable cause to a judge or magistrate. Under Ashcroft's order, there is no judicial oversight of the decision to eavesdrop on conversations between individuals and their attorneys.
On Dec. 28, People For the American Way Foundation filed comments asking for the withdrawal of the new regulation and the adoption of a less harmful alternative that includes meaningful judicial review. Similar comments were filed by the American Bar Association and many other organizations.