A Big Mistake

“In all criminal prosecutions the accused shall enjoy the right…to have the assistance of counsel for his defense.” — Sixth Amendment to the US Constitution.

It is disappointing to listen to radio and television call-in talk shows and hear some middle Americans express an enthusiastic willingness to exchange civil liberties for greater security. This willingness is born of our current insecurity induced by the attacks on the New York World Trade Centers and the Pentagon. We have not recently experienced significant losses of civil liberties for many to understand the nature of the trade they seem prepared to accept.

This last week, the Justice Department, under Attorney General John Ashcroft, implemented rules which on their face appear to violate the Sixth Amendment’s guarantee that those accused of a crime (and even those just detained) are entitled to enjoy the “assistance of counsel” in the preparation of a defense.

According to this new policy, if the attorney general formally declares that “reasonable suspicion exists to believe that an inmate may use communications with attorneys or their agents to facilitate acts of terrorism,” the government can eavesdrop on their conversations.  Inmates have no expectation of privacy and the government can regularly monitor conversations with friends, relatives, and other inmates. However, conversations with attorneys had always been considered privileged.

To its very modest credit, the Justice Department says that it will institute procedural safeguards to protect the attorney-client privilege. Attorneys will be notified that their conversations may be monitored.   In addition, third parties, not federal prosecutors, will monitor the conversations. Presumably, the use of third parties will protect Fifth Amendment guarantees against self-incrimination.  These third parties would only release the information if a federal judge approves. These efforts, nonetheless, are not sufficient.

The genius of the Constitution is that it recognizes that individuals have rights that cannot be, at least not easily, circumvented by the state. In addition, the possibility of tyranny is mitigated by the distribution of powers between branches of government. For example, before the executive branch can search a house, it needs to obtain a warrant from an independent magistrate.

It would seem that if the Justice Department has compelling reasons to believe that an inmate is initiating terrorist acts through his attorney, they should be able to so persuade an independent judge. Without the safeguard of independent review, this new policy clearly erodes Sixth Amendment protections.

There are many changes we can make to reduce the possibility of foreign terrorism.   We can improve the vetting and tracking of visitors on visas, we can upgrade airport and aircraft security, and we can improve our foreign intelligence by recruiting more human assets.  There is no public case for the nibbling away at the edges of the Sixth Amendment by this new policy. Moreover, this policy may be short lived.  It will not likely survive scrutiny in the courts once there is an opportunity to challenge it.

We need not yield to hyperbole.  This new regulation will not transform the United States into a police state. Our institutions are too resilient. Nonetheless, it does provide a disturbing precedent that somewhere down the line will prove far more serious. The best our generation can do is to pass the freedoms we have inherited down to our children whole and intact. This new Justice Department policy diminishes our children’s political birthrights.

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