Monitoring of Conversations between Detainees and their Attorneys
November 9, 2001

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,
  Senate Committee on the Judiciary