Ashcroft's Disregard for Justice

Earlier this month, Attorney General John Ashcroft announced new Department of Justice rules permitting the monitoring of conversations between people in custody and their lawyers in certain cases. These changes eviscerate cherished principles of due process by making it more difficult for lawyers to effectively represent their clients.

The right to counsel long predates the Constitution and the Bill of Rights. Medieval English common law courts recognized that the accused had to have access to a trusted source of information about the laws in order for the adversarial system of justice to be fair. This sentiment was made explicit by the 6th Amendment, guaranteeing that the accused have access to counsel to conduct his or her defense.

Ashcroft’s regulations trample over this constitutional protection by discouraging inmates from having fully open conversations with their defense attorneys about the circumstances of a case, preventing the attorney from giving the most appropriate legal advice possible. For instance, the accused might be less inclined to share information with their counsel that would clear their name in a particular case if this information might possibly incriminate them in a lesser or different offence.

While the Justice Department asserts that the use of so-called “taint teams” will prevent prosecutors from using the information obtained from the interception of phone calls between attorneys and their clients, this barrier is inadequate. Even assuming that this system functioned perfectly so that there were no unauthorized disclosures of information, whether inadvertent or deliberate, it would be simple for prosecutors to apply for access to the gathered information.

This problem stems from the low threshold of evidence needed for conversations to be monitored at all. Rather than the probable cause required by the 4th Amendment, the attorney general need merely “certify” that the person in custody might be attempting to communicate to others about a future terrorist plot. Similarly weak grounds would suffice for a prosecutor to listen to the recordings and use them as a basis for a fishing expedition into the possible wrongdoings of the person in custody and anybody implicated in the conversations.

These new regulations are all the more troubling because a concerted attempt was made to avoid any sort of oversight. The rule went into effect before it was published and the normal period of public comment was avoided by invoking a rarely-used exemption clause. By bypassing the other branches of government in promulgating this rule, Ashcroft also displayed an astonishing disregard for the concept of a separation of powers.

Ashcroft has failed to provide a good reason for this subterfuge. The House and Senate have generally been eager to pass antiterrorism legislation in a form very similar to what the administration has desired. Indeed, the legislative branch has been almost too willing to relinquish its powers to the executive in the aftermath of the Sept. 11 attacks. So alarming has the breathtaking concentration of power in the executive branch been that the chair of the Senate Judiciary Committee, Patrick Leahy (D-Vt.) and the ranking Republican on the committee, Sen. Orrin Hatch (R-Utah), recently sent Ashcroft a letter asking him to appear before the committee to explain why the regulations were imposed without even an attempt to secure Congressional approval.

If previous statements are any guide, Ashcroft will most likely trot out the same tired platitudes that the enormity of the crimes committed and the necessity of preventing future attacks justify any abridgement of constitutional rights. He has already argued that the regulations should not be that alarming because only a very small number of people will be affected. It should not be forgotten, however, that the people in custody have not necessarily been convicted of any crime. In many cases, they have not even been told the crime of which they are accused.

Adding insult to injury, the Justice Department’s new regulations are completely unnecessary. For instance, judicially sanctioned monitoring with warrants issued after a demonstration of probable cause would certainly be consistent with the Constitution and would achieve the same effect of preventing suspects from orchestrating attacks while in custody. Attorneys who are authorized to handle classified evidence are already trusted not to pass information to their clients. It stands to reason that the same attorneys could also be trusted not to act as a conduit between their clients and possible co-conspirators at large.

More than a century ago, in the aftermath of a war that threatened the very existence of this country, the Supreme Court noted that “the Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.” These words are as true now as they were then.

Brian J. Wong ’04 is a physics concentrator in Lowell House.