Poking Some Holes In the Constitution

By: Cragg Hines

Surely in his three days of talks with Russian President Vladimir Putin, President Bush will find a moment to ask the former KGB operative if he can think of some other regressive domestic fiats to implement in the war on terrorism. Because when the federal government begins to monitor telephone calls, mail and face-to-face conferences between lawyers and clients, we are moving into Lubyanka territory.

Bush keeps arguing that we cannot let Osama bin Laden and his kind conquer the American spirit or its liberties. To cower in fear, Bush says, is to hand the terrorists an unearned victory. That's a wonderful guiding principle as the nation fights back from Sept. 11. But when the Department of Justice on Halloween slipped its attorney-client monitoring plan into the Federal Register, bin Laden chalked up another mark on his cave wall in Afghanistan.

The right to counsel is not some arcane bit of legal accretion. It's in the Constitution: "In all prosecutions, the accused shall enjoy the right... to have the assistance of counsel for his defense." It is among the most fundamental personal rights, from Article 6 in the Bill of Rights. And that's not the "so-called Bill of Rights", as Justice Hugo L. Black once famously reminded a Supreme Court colleague.

At the heart of the right to counsel is the historic assumption that any communication between an attorney and client is private and privileged. And that privilege should be absolute, even for those suspected or accused of being scumbag terrorists.

The Bush administration disagrees, and with surging popularity rates believes it can do just about anything it wants to combat terrorism, both at home and abroad. There is no need, officials feel, to stand on legal or diplomatic form. White House aides facing inconvenient questions from pesky reporters have been known to smirk and reply: "The public gets it."

Administration officials, from the President on down, repeatedly remind us that "everything changed on Sept. 11". They forgot to tell us, at least openly and honestly, that one of the things that changed was the Constitution. There are reasons to question the dragnet detentions that followed Sept. 11, and continue for some 1,000 persons. There were many objectionable elements in the anti-terrorism bill enacted last month, including the destruction of the firewall that has existed between intelligence services and prosecutors. But none of the measure's provisions approaches the chilling nature of the proposed breach of attorney-client privilege.

There are some detainees, the Justice Department says, who may be such a "national security risk" that their constitutional right can be abridged. Of course, that's not how the new rule reads, but that's certainly its effect.

The government contends the rule should be able to be invoked if the attorney general finds it "reasonably necessary in order to deter future acts of violence and terrorism". The theory is that some of the detainees may attempt to pass terror-related messages through their attorneys, perhaps without their attorneys even being aware.

Attorney General John Ashcroft and the Department of Justice have attempted to dress this up, pointing out the presumed rarity of cases in which attorney-client monitoring would be used. Included is the promise that a special "privilege team" would review the conversations or mail. Only "disclosures necessary to thwart an imminent act of violence or terrorism" would be passed on immediately to investigators. Any other disclosure of monitored material would have to be approved by a judge.

That is simply too many semipermeable membranes, too many value judgments, too many little holes punched in the Constitution.

Ashcroft, appearing on CNN's Larry King Live, sought to defuse the controversy, saying that only a handful of people would ever be subjected to monitoring and that none have been so far.

"But it's there as a weapon and tool if we feel we need it", Ashcroft said. To which the ever-fatuous King replied: "Glad you cleared it up."

It's not just defense lawyers and the American Civil Liberties Union who find the rule offensive.

"It's incredible", one federal government attorney said of Ashcroft's overreaching. "He's not God. He's not even a judge."

Although some legal authorities believe the post-Sept. 11 atmosphere is so charged that some individual federal district judges might find it difficult to throw out the rule, its remaining intact on appeal would be difficult.

"Even this Supreme Court would overturn", a government lawyer said - before adding a cautionary note: "If it does stand up, where does it stop?"