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Jewish World Review Nov. 19, 2001 / 4 Kislev, 5762

Nat Hentoff

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Has Ashcroft read the Constitution? -- WHEN Attorney General John Ashcroft repeatedly says "We're going to protect and honor the Constitution. We'll not be driven to abandon our freedoms by those who would seek to destroy them," I increasingly wonder whether he has recently read the United States Constitution.

His anti-terrorism law, the USA Patriot Act, has already torn holes into that document by radically expanding electronic surveillance and secret physical searches of homes and offices. Too few of these expanded powers are subject to adequate judicial review.

Now, however, he has directly attacked the Sixth Amendment's right to effective counsel. Without the usual time for public comment on so fundamental a change in our system of justice, the government will now be able to eavesdrop on conversations of lawyers and inmates in federal prisons, thereby shredding the lawyer-client privilege of confidentiality.

Among those included are some of the detained -- a euphemism for arrested -- who are not charged with any crime. This monitoring will take place without a court order, solely on the certification by the attorney general that "reasonable suspicion exists to believe that an inmate may use communications with attorneys or their agents to facilitate acts of terrorism."

Laura Murphy, director of the American Civil Liberties Union's Washington office, is not engaging in hyperbole when she says, "This is a terrifying precedent -- it threatens to negate the keystone of our system of checks and balances, the right to a competent legal defense."

Irwin Schwartz, president of the National Association of Criminal Defense Lawyers, makes the crucially obvious point that "the Code of Professional Responsibility is very clear: an attorney cannot communicate with a client when confidentiality is not assured. The client is stripped of his Sixth Amendment right to counsel."

A law degree is not necessary to understand this essence of American justice. "Law and Order" and "NYPD Blue" teach lawyer-client confidentiality every week on television.

As Mr. Schwartz says: "The federal government has no business eavesdropping on these conversations, absent a court order." But John Ashcroft has little patience with ordered liberty. As the New York Times said in a Nov. 10 editorial:

"Two months into the war against terrorism, the nation is sliding toward a trap that we entered in this conflict vowing to avoid. Civil liberties are eroding."

But the Justice Department assures us that "procedural safeguards" are securely in place to protect lawyer-client confidentiality under this new edict.

The Justice Department says that inmates and their lawyers will be told that they are no longer alone in their conversations. Moreover, the eavesdropping will be done by a government "taint team" which will not be allowed to reveal what they hear to federal prosecutors or investigators until a federal judge has approved. It's an honor system. But in view of the past and present FBI history of abusing civil liberties, this pledge is hardly reassuring. It's like appointing Bill Clinton to head the official committee on obstruction of justice.

Once a person in custody cannot fully and privately talk to his or her attorney, and when the lawyer's advice is monitored by the government, John Ashcroft has unilaterally changed the Constitution.

Professor Leonard Levy, a justly honored constitutional historian, has said that the guarantees of a fair trial and representation by counsel "reflected the judgment of (the Constitution's) framers that in a free society, based on respect for the individual, the determination of guilt or innocence must be made in accordance with just procedures by which the accused made no unwilling contribution to his own conviction."

In leaving office, George Washington warned of government asserting overweening power. When that happens, he said, "Government is not reason. It is not eloquence. It is a force, like fire, a dangerous servant and a terrible master."

In his impressive address to the United Nations on Nov. 10, the president said that law unites people "across cultures and continents." But if the rule of law does not hold in this country, what of his administration's fundamental responsibility to uphold the Constitution?

JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.

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