ZGram - 11/16/2001 - "Curtailment of Freedom Challenged"

[irimland@zundelsite.org]

Copyright (c) 2001 - Ingrid A. Rimland

ZGram - Where Truth is Destiny

November 16, 2001

Good Morning from the Zundelsite:

I am so overwhelmed with mail, I only saw this now.  Of interest to all of us:

[START]

Leahy 'Deeply Troubled' About Monitoring Of Conversations Between Detainees
And Their Attorneys;  Asks Answers From Attorney General Ashcroft

  Following is the text of the letter sent today by Senate Judiciary
Committee Chairman Patrick Leahy (D-Vt.) to Attorney General John Ashcroft
about DOJ's new policy on the monitoring of attorney-client conversations
involving detainees. Leahy also spoke today by phone with the Attorney
General about this issue -

  November 9, 2001

 The Honorable John Ashcroft
 Attorney General
 United States Department of Justice
 950 Pennsylvania Avenue, N.W.
 Washington, D.C. 20530

  Dear Attorney General Ashcroft:

 Since September 11, I have worked closely with you and with the
Administration to ensure that the Department of Justice and other law
enforcement agencies have all the tools necessary to effectively combat
21st Century terrorism. In working together to craft the USA PATRIOT Act,
we had intense and frank discussions about how to meet our shared objective
of keeping Americans safe without sacrificing the freedoms which, as the
President eloquently said last night, are the defining characteristic of
our society. Nowhere in that legislation or in our discussions was there
any mention by you or any Administration representative that you intended
to move unilaterally and immediately to claim authority to monitor
confidential lawyer-client communications.

  Since we provided you with new statutory authorities in the USA PATRIOT
Act, I have felt a growing concern that the trust and cooperation Congress
provided is proving to be a one-way street. You have declined several
requests to appear before the Committee to answer questions and have not
responded to requests to provide information on such basic points as the
number of people -- according to some Department of Justice reports, more
than a thousand -- currently detained without trial and without specific
criminal charges under your authority. Today, I read in the newspapers that
the Administration has decided that it will now provide even less
information than before regarding detentions. No one has explained to me
how national security compels withholding from Congress and the public -
with appropriate protections, if warranted - basic information regarding
people who have been detained, arrested and imprisoned.

  Today I also learned through the press of another troubling development:
Your unilateral executive decision to authorize interception of privileged
attorney-client communications between detained persons and their lawyers.
As I noted to you this morning, after having worked closely with the
Department to equip Federal and State law enforcement to combat terrorism
and after having received no request from you for statutory authorization
to take this controversial step, and with no warning that you were
contemplating such a step, I am deeply troubled at what appears to be an
executive effort to exercise new powers without judicial scrutiny or
statutory authorization.

  As fellow prosecutors, you and I both know that the rule of law is
essential to our American freedoms, and the right to a lawyer with whom one
can communicate candidly and effectively is essential to the adversary
process by which the rule of law operates in America. There are few
safeguards to liberty that are more fundamental than the Sixth Amendment,
which guarantees the right to a lawyer throughout the criminal process,
from initial detention to final appeal. 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. For
this reason, it has long been recognized that the essence of the Sixth
Amendment right to effective assistance of counsel is privacy of
communication with counsel, and law enforcement practice throughout our
history has recognized that subject only to the most narrow and
judicially-scrutinized exceptions, attorney-client communications are
immune from government interception. See Coplon v. United States, 191 F.2d
749 (1951) (government interception of private telephone consultations
between the accused and her lawyer denies the accused her constitutional
right to effective assistance of counsel); Hoffa v. United States, 385 U.S.
293, 306 (1966) (affirming holding in Coplon); Shillinger v. Hayworth, 70
F.3d 1132, 1141 (10th Cir. 1995) (purposeful intrusion on the
attorney-client relationship "strikes at the center of the protections
afforded by the Sixth Amendment").

 I continue to recognize, as I did in leading efforts in the Senate to pass
the USA PATRIOT Act, that these are difficult times. Trial by fire can
refine us, but it can also coarsen us. The public's response already has
given the world uncounted examples of Americans at their finest. The
government and its leaders face equally demanding challenges, to appeal to
the better angels of our nature, and to respond in ways that are prudent,
effective, measured, and respectful of the freedoms that we are fighting to
preserve and protect. The history of the detentions of Japanese Americans
without trial during the Second World War and the unauthorized phone taps
during the Vietnam era teach that there is a need for law enforcement to
open itself to the maximum public, congressional and judicial scrutiny that
the interests of national security allow when the lives and freedoms of
Americans are under threat. As the Supreme Court wrote in United States v.
Robel, 389 U.S. 258, 264 (1967):

  [T]his concept of "national defense" cannot be deemed an end in itself,
justifying any exercise of ... power designed to promote such a goal.
Implicit in the term "national defense" is the notion of defending those
values and ideas which set this Nation apart. . . . It would indeed be
ironic if, in the name of national defense, we would sanction the
subversion of one of those liberties . . . which makes the defense of the
Nation worthwhile.

 I appreciate our conversation this morning, but as Chairman of the
Judiciary Committee, I need answers to the grave concerns raised by your
new policy.

  Please provide answers to these questions:

  (1) On what basis are the interceptions of privileged attorney-client
communications authorized by your new policy constitutional, and what are
the constitutional limits on such interceptions?

 (2) What statutory authority supports such interceptions?

  (3) What opportunity for prior judicial authorization and judicial review
will there be of the legality of such interceptions?

 (4) What criteria will you use in deciding whether to certify that
"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," and in how many cases have you made such a
certification?

  (5) Your new regulation states that "specific procedural safeguards" will
be employed to prevent abuse. Please provide a detailed description of the
procedural safeguards that you will make available in all cases.

 (6) Did you consider building upon current procedures and seeking court
approval for monitoring in those circumstances where it may be justified by
the crime-fraud exception to the attorney-client privilege and, if so, why
did you reject the process of court-supervised monitoring?

  (7) When did you first begin monitoring lawyer-client conversations?

  Given the grave importance of this matter and its implications for basic
civil liberties, I would appreciate a response to these questions by no
later than November 13. I would also respectfully suggest that full and
responsive answers to my earlier letters of October 25 and 31 and November
7 and 8, 2001, be provided without further delay. I expect the Senate
Judiciary Committee will be holding prompt hearings on these matters.

 Very truly yours,

  PATRICK LEAHY

  Chairman

  Senate Committee on the Judiciary

  [END]

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 Thought for the Day:

 "Why did our rulers call for minutes' silence in memory of the people
killed in the attack on the World Trade Centre and the Pentagon, when we
only have two minutes for the millions who died in  two world wars?"

 (Letter to the Editor of the British publication Spearhead, November 2001
issue)