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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
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Contact: David Carle, 202-224-3693
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