The American Bar Association is deeply troubled by the U.S. Justice
Department’s newly released administrative rules that would permit the
government to listen in on conversations between lawyers and clients in
federal custody, including people who have been detained but not charged with
any crime, if there is “reasonable suspicion” that an exchange of
information may occur about future acts of terrorism.
We certainly understand the necessity to take all steps necessary,
consistent with our Constitution, to prevent terrorist acts. But these new
rules run squarely afoul of the Fourth and Sixth amendments to the U.S.
Constitution.
No privilege is more “indelibly ensconced” in the American legal system
than the attorney-client privilege. The Sixth Amendment guarantees a right to
counsel. The new rules clearly violate that privilege, and therefore seriously
impinge on the right to counsel. If the government has probable cause to
believe criminal activity is occurring or is about to occur, it can ask a
judge to approve the type of monitoring proposed by these regulations. But
prior judicial approval and the establishment of probable cause – the
standard embodied in the Fourth Amendment – and not “reasonable
suspicion,” are required if the government’s surveillance is to be
consistent with the Constitution and is to avoid abrogating the rights of
innocent people.
