Bureau of Prisons Can Suspend Attorney-Client Privileges (War On Terror)

One month after the 9/11 attacks, the Department of Justice issued an interim rule that gave its Bureau of Prisons the right to scrap traditional notions of attorney-client privilege in order to monitor conversations between inmates suspected of terrorism and their lawyers.

Last month, the department announced that the final version of that rule, which will become effective on June 4, extends from four months to one year the time period during which such intrusive monitoring of those jailhouse conversations can take place.

The final rule also extends the authority to impose such monitoring, known as “special administrative measures,” beyond the Bureau of Prisons. It will also apply to senior officials who run other units of the federal government that might also be detaining prisoners suspected of terrorist-related activities, such as the U.S. Marshals Service and the Immigration and Customs Enforcement (ICE) unit of DHS.

Thus, with very little public attention, the Bush Administration has issued rules that essentially place a higher priority on preventing an inmate from communicating terrorist-related information to those outside the prison system than to safeguarding the long-honored concept of attorney-client privilege, which has been considered a core legal principle in the U.S. for centuries.

“The rule also allows the Director [of the Bureau of Prisons] to extend the period for the special administrative measures for additional one-year periods, based on subsequent certifications from the head of an intelligence agency that there is danger that the inmate will disclose classified information and that the unauthorized disclosure of such information would pose a threat to national security,” said a Federal Register notice released by the Justice Department on April 4.

In addition to authorizing the monitoring of attorney-inmate conversations, the final rule also could mandate special administrative measures that include housing the inmate in special residential units, limiting their correspondence, visits and interviews with members of the media, and restricting their use of the telephone.

According to the Bureau of Prisons, the special administrative measures related to the attorney-client privilege have been invoked only once since the interim rules became effective on October 30, 2001. GSN asked the Bureau to identify that one instance, but was not supplied a specific answer. It is likely the one instance involved attorney Lynne Stewart who was convicted in 2005 and ultimately sentenced to 28 months in prison, based on wiretapped conversations with her client, Sheik Omar Abdel Rahman, a terrorist suspect.

“An inmate whose conversations with his/her attorney are monitored will enjoy strict procedural protections,” the Bureau of Prisons asserted in its Federal Register notice. First, the inmate and attorney will be notified that officials are listening to their conversations. Second, a separate group of monitors, known as a “privilege team,” will actually listen to the conversations; not members of the Justice Department prosecution team trying to build a legal case to convict or detain that inmate. Third, the privilege team may only disclose overheard information with the prior approval of a federal judge, or “where acts of violence and/or terrorism are imminent.”

These waivers to the traditional sanctity of the attorney-client privilege can be applied to incarcerated individuals who have not yet been convicted of any crime, witnesses and alleged illegal immigrants, as well as to convicts whose verdicts have already been determined.

The Justice Department said it received approximately 5,000 comments from members of the public about the proposed final rule, of which all but 44 were variations of two form letters. The department received one comment in support of the rule.

One frequent critical comment suggested that the provision allowing conversations between inmates and their lawyers to be monitored by prison officials breaches attorney-client privilege and deprives inmates of their right to effective assistance from their counsel, under the Sixth Amendment to the Constitution.

The Justice Department sees it differently. “We acknowledge that the Sixth Amendment limits the government’s ability to monitor conversations between a detainee and his or her attorney,” argued the Bureau of Prisons. “Nonetheless, as we noted in the preamble to the interim rule, the fact of monitoring by itself does not violate the Sixth Amendment right to effective assistance of counsel.”

The Bureau argued that monitoring a conversation might enable prison officials to block communications that could lead to terrorism or violence, without interfering with a detainee’s right to consult with am lawyer to help formulate his or her legal defense.

The case of that communist lawyer affiliated with the National Lawyers Guild, Lynn Stewart, demonstrates that the feds need to have this wothwhile tool to combat the islamofascists.

The suspension of attorney-client privileges for terrorists is necessary. I believe that is was President Abraham Lincoln who once said that the U.S. Constitution is NOT a "suicide pact." Terrorists, anarchists and others who would violently attack and overthrow America should expect to have their civil liberties curtailed. During the Civil War, Lincoln suspended the right to habeas corpus. In the end, this was a tool that helped Lincoln to save the Union.

I disagree. (As much as I want to clip the wings of terrorists) I’m not sure how it helps Justice if I suddenly am informed that my lawyer (present or previous) can end up taking the stand against me.

I’m sorry, I value the Constitution more than that. A lot of people died to protect it. This will be expanded to drug dealers, people carrying too much cash, and everything else eventually. Plus, the government is doing absolutely nothing to secure the border. With these facts on the table, I’m not willing to give government another iota of power. Honor the Constitution or amend it as the founding fathers intended. Or declare martial law.

“I’m not sure how it helps Justice if I suddenly am informed that my lawyer (present or previous) can end up taking the stand against me.”

It doesn’t and there is no Justice in America any longer.

We have a government that refuses to enforce laws except for those that they wish to enforce, or those that are convenient to enforce, all the while telling you and I that we must give up more freedom, more choices, more money, while handing our freedoms choices and money out to everyone in the world but those of us who have earned it.

This is no longer America, I don’t know what it is, but it’s not that.

I have no problem with a policy like this being applied to non-citizens.I firmly believe that non-citizens do not deserve and should not receive many of the protections provided by our Constitution.

Honor the Constitution or amend it as the founding fathers intended. Or declare martial law.

Or exercise our 2nd amendment right.

I understand the need for this, but it is very dangerous. At least such measures should require a law, not just a policy change. Even then, NO information should be able to make its way to the prosecution, and the government needs a paper trail for the information to prove it didn't. Fair trial and no self-incrimination needs to be preserved.

During the Civil War, Lincoln suspended the right to habeas corpus.

That is specifically allowed in the Constitution. There are no exceptions to the applicable parts of the 5th and 6th Amendments.

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