preventing as opposed to prosecuting terrorism? ">

Briefing on the Sept. 11th Terrorst Attacks

The Justice Department rewrites the Bill of Rights so it can eavesdrop on suspects.

By Dahlia Lithwick, Slate Magazine
November 15, 2001

The U.S. Constitution was designed to protect us from overzealous police-the sort who seize upon the flimsiest pretext to knock down doors and throw people into leg irons in the name of fighting crime. The reason most police officers respect our basic civil liberties has less to do with their love for the Constitution than the understanding that if they violate the framers' rules, the evidence gained in their investigation will be thrown out of court, eliminating their chance of getting a conviction. This protection, known as the "exclusionary rule," has kept the cops at bay for 40 years.

But what if the police weren't interested in winning convictions? In fact, what if the top cop-the attorney general-gave them a green light to ignore constitutional protections in the name of preventing as opposed to prosecuting terrorism? That's what Attorney General John Ashcroft did on Oct. 31 when he imposed a new rule allowing the government to eavesdrop on the attorney-client conversations of individuals in federal custody, so long as there is "reasonable suspicion" these communications are furthering acts of violence or terrorism. "This is prevention-minded, not prosecution-minded," confirmed DOJ spokeswoman Mindy Tucker last Friday, speaking about the rule.

The measure will affect U.S. citizens and foreign nationals, and it applies to convicts as well as to people who have not yet been convicted of crimes, such as those held as material witnesses or for minor immigration violations. This apparently indefinite surveillance authority can be invoked in federal prisons, immigration detention centers, even in courthouses. The DOJ's Tucker rushed to reassure the public that only about 13 inmates out of 158,000 federal prisoners will be subject to these "special administrative measures," and that none of the 13 individuals being monitored has been detained regarding the Sept. 11 attacks. The government is allegedly monitoring only the men convicted in other terrorist acts against the United States. To mitigate the tremendous breadth of the new language, they ask that we "trust them" to limit the scope of surveillance to these 13 individuals.

The new rule, which amends Bureau of Prisons legislation, effectively promulgates a new anti-terrorism law without congressional comment or debate. Ashcroft imposed the rules on an "emergency basis" and published them without fanfare in the Federal Register, activating them the day before they were disclosed publicly.

Sen. Pat Leahy, D-Vt., chairman of the Senate Judiciary Committee, denounced the Ashcroft move in a letter last week, claiming that nowhere in the recently enacted "Patriot Act"-Congress' sweeping new anti-terror bill-"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." Leahy's press secretary says Ashcroft has declined to respond to "half a dozen" such letters about the unnecessary secrecy surrounding the detention of hundreds of people in the terrorism investigation.

The new rule presumes not only the guilt of the alleged terrorist, but also the complicity of his attorney. But ample protections already exist to keep lawyers from acting as terrorists' couriers. The ethical canons forbid lawyers from conspiring with their clients to commit crimes. The laws against conspiracy make it illegal for attorneys to aid terrorist enterprises, and if the state suspects lawyers and their clients of colluding to break the law, it can quickly apply to a federal judge for a warrant to monitor these conversations. It's hard to imagine how warrantless eavesdropping is going to provide the government with much more information than they could already have obtained through lawful methods. In exchange for all this, prisoners give up any meaningful right to consult honestly and privately with their counsel.

The attorney general says attorneys and clients shouldn't worry about the eavesdropping because advanced "notice" will be given to suspects. He also provides for a "firewall" to be erected between the listening agents and prosecutors: The agents who eavesdrop, called "taint teams" in the amended legislation, cannot communicate the contents of these conversations to prosecutors. Of course, prosecutors can still apply to a federal judge for access to these conversations. So suspects have no way of knowing if the information they provide counsel might someday be divulged in a prosecution.

Other search or wiretapping warrants require an independent judge or magistrate to find "probable cause" that a crime has been committed. Ashcroft's rule lowers the legal standard to "reasonable suspicion" of terrorist or violent acts. "Probable cause" means the crime more likely than not took place. Reasonable suspicion could be met if there was a 25 percent chance that this guy is a terrorist. More amazingly, the arbiter of whether reasonable suspicion exists to violate a suspect's constitutional rights is none other than the attorney general himself. No need for a magistrate. The constitutional requirement for a judicial "check" on police power has been amputated with a stroke of Ashcroft's pen.

Why can the AG's office eviscerate a constitutional rule so quickly and bloodlessly? Because the only method we have of enforcing constitutional rules is via the exclusionary rule-by prohibiting police and prosecutorial overreaching in courts. If the police and prosecutors have no interest in reaping criminal convictions, there is no effective way to fend off their encroachments before they happen. We are left with the after-the-fact remedy of a civil suit or the faint hope of an injunction. Many of the 1,200 people detained since Sept. 11, some under brutal conditions, have been denied access to counsel. This is plainly unconstitutional and would inevitably result in cases being thrown out of a criminal court down the line. The feds are well aware of this, but they have made it clear that their interest is not in trying these cases in criminal courts later on. As if by magic, the constitutional protections fall away.

Is the attorney-client privilege a constitutional rule? Probably. According to Prof. Glenn Reynolds at the University of Tennessee College of Law, attorney-client privilege "hits a seam in the zone of the law." The right to speak to one's attorneys in confidence is not spelled out in the Constitution, but is, rather, derived from a common law evidentiary privilege that is enshrined in the federal rules of evidence, the federal rules of criminal procedure, and elsewhere. Scholars and practitioners agree that, like other common law privileges, attorney-client confidences are probably incorporated into the Fifth Amendment's guarantee of due process of law. And the Supreme Court has held that state interceptions of private phone calls between an individual and her lawyer violate her Sixth Amendment right to effective counsel in the 1951 case of Coplon v. United States.

During most of the United States' history, there really were no effective ways to enforce one's constitutional rights against the state. If something was taken from your home pursuant to a warrantless search, your only recourse was to sue the government for its return. But that changed after the 1961 case of Mapp v. Ohio, the landmark ruling establishing that evidence obtained through unconstitutional means is inadmissible at trial. Mapp held for the first time that unless the state faced consequences for illegal searches, the rights set forth in the Bill of Rights would be just words, "valueless and undeserving of mention in a perpetual charter of inestimable human liberties," in the words of Justice Tom Clark. After Mapp, the way we force law enforcement to respect the "form of words" is to "remove the incentive to disregard it." Post-Sept. 11, these incentives have changed, and a state uninterested in criminal convictions will not be deterred by the exclusionary rule.

The Justice Department has a new agenda: indefinite detentions, acquiring information, and centralization of power. Moreover, should the Bush administration go forward with the plan to try "terrorists" (as defined by the president) in military tribunals, illegally obtained evidence may not be barred. How convenient for the Justice Department that the military may soon be able to try suspects who were detained and searched unconstitutionally, in courts that might not shed a tear over warrantless searches.

The only other protections open to victims of unconstitutional searches and wiretaps are civil suits challenging state conduct directly. The American Civil Liberties Union has already indicated that it plans to challenge the attorney-client eavesdropping rule. According to David Fahti, a staff attorney at the ACLU's National Prison Project, both suspects and their attorneys can file civil rights suits challenging the law and asking courts to enjoin it. "The harm is done as soon as the attorney and client know that the government is listening in," says Fahti.

But civil suits are too slow and too ineffectual to deter the turbo-powered Justice Department. And while no day is a good day for a suspected terrorist to sue the federal government for violating his civil rights, today is likely a worse day than usual. If civil rights groups can't even elicit the names or numbers of detainees from the government after two months of illegal detention, it may be years before they can get a judge to enjoin the eavesdropping rule. By then, the erosion of a client's confidence in his attorney's confidentiality will have been complete.

A report in the Nov. 15 Wall Street Journal reveals that the Justice Department has just issued new regulations allowing them to indefinitely detain some illegal aliens believed to be terrorists. The rules take effect immediately, without notice or consultation with the Senate immigration subcommittee. Who decides which aliens pose "a significant threat to national security"? John Ashcroft. Sound familiar? Essentially, Ashcroft is putting back into his crime-fighting quiver some of the very weapons that Congress denied him in passing the recent anti-terrorist legislation.

How do we enforce the Constitution against a state that suddenly evinces no interest in convictions or ordinary criminal investigation? The Ashcroft request is that we simply "trust" him to tread carefully around the Bill of Rights. What would Jefferson, Madison, or Adams do if they heard the state asking that? They'd probably flee to Canada.

Dahlia Lithwickis a senior editor for Slate Magazine.

Copyright 2001, Slate Magazine