An Affront to Democracy

It is hard to fathom why Attorney General John Ashcroft would think his recent order authorizing the monitoring of conversations between detainees and their lawyers would be acceptable in a society that values the rule of law. The new rules authorize the attorney general to listen in on attorney-client communications in cases in which the government - with no input from a judge - deems a detainee to be involved in terrorist activity and considers his lawyer to be facilitating the detainee's dirty work. The Justice Department stresses the safeguards it has built into this system: that information will not, except in urgent circumstances, be disseminated without the consent of a judge. The department notes that the new rules currently can affect only 13 people in federal custody, none of whom was arrested after Sept. 11. But this policy cannot be safeguarded against illegality.

The right to be represented by a lawyer is fundamental to life in a democratic culture. That right has no meaning if the confidentiality of lawyer-client communications is not respected. No sane detainee - guilty or innocent - is likely to talk candidly to a lawyer knowing that the very government that detained him is listening in. And it's hard to imagine how ethical lawyers - bound to respect client confidentiality - could represent clients knowing that their conversations were not secure.

If the government reasonably believes a lawyer is facilitating terrorist activity, it has numerous legal options. It can investigate the attorney. It can move to disqualify him or her from representing the client. The privilege has a crime-fraud exception that, with judicial input, has been used to allow monitoring. But the government cannot create a situation in which a detainee is blocked from the assistance of counsel.

When Mr. Ashcroft sought broad new powers to combat terrorism, the Justice Department responded to fears of abuse by insisting that it could be trusted. Since then, it has responded to calls for the release of the names of the nearly 1,200 people it has detained by announcing that it would, henceforth, no longer release even the tally of people it has locked up. Now it has - without any congressional involvement - created a rule that attacks a basic foundation of the judicial system. The trust is wearing thin.