You've been accused of a crime. You ask to see your attorney. You expect that you can explain to your lawyer what happened without a fear that the lawyer can be forced to testify against you. As a matter of fact, your attorney tells you that you shouldn't hold anything back, because failure to explain the facts can lead to a weakness in your defense.
Before you are interviewed by your attorney, you're told that the conversation that you are going to have will be monitored to make certain that you aren't passing on terrorist instructions. These others listening in aren't constrained by attorney-client privilege. You don't tell your attorney everything that you should for fear that your conversation will be used against you in court.
You lose your court case. You appeal. If you're lucky, the appellate court buys into your argument that you were denied effective assistance of counsel because you were placed in a situation where you couldn't talk with your attorney.
Lawyer-client privilege allows a defendant to talk freely with his or her attorney. This freedom is a necessary part of the criminal justice system. It permits the person accused to be honest with their legal counsel about the events that lead to their incarceration, and it keeps the attorney from acting as a witness against his or her client. Being unable to be open with the person representing you may be cause for an ineffective assistance of counsel determination. It may make convictions much more likely, even if there is no leaking of the conversation being monitored.
The U.S. Department of Justice instituted a new policy on October 30th, adding a monitoring system, in cases when the charge being considered is one of the ones under the anti-terrorism act. Criticism of this policy is coming from a lot of directions. Here are some articles that go into more detail:
Washington Post - An Affront to Democracy
New York Times (free registration required) - Experts Divided on New Antiterror Policy That Scuttles Lawyer-Client Confidentiality
NewsMax.com - DOJ Defends Lawyer-Client Surveillance
The idea behind this measure is that a person might pass information to an attorney to be passed along to others and allow those others to commit terrorist acts. It seems like this law is telling us that the Department of Justice doesn't trust the attorneys in these situations. While this type of monitoring will only take place in a small number of cases, maybe there are other solutions. The expectation is that this new policy will be challenged in federal court as soon as possible.
- William Slawski