Death Knell for the American Right to Counsel: The Lynne Stewart Case and the Impact of Federal Government Spying on Attorneys

Introduction

Addressing an audience tuned in for comedy, Attorney General John Ashcroft took the unusual step of appearing on CBS television's Late Night with David Letterman on April 9, 2002, to proclaim the indictment of defense attorney Lynne Stewart on five counts of conspiracy, defrauding the government, and providing support for terrorism. He also announced the first exercise of his authority to monitor attorney-client communications since the enactment of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act). The studio audience clapped loudly to his assurances that the government was implementing anti-terrorism measures: "We simply aren't going to allow people who are convicted of terrorism to continue to achieve terrorist objectives by sending messages and directing the activity from their prison" (CBS's Late Night 2002). But lawyers and civil libertarians heard a far more ominous message: there is no more privacy between lawyers and clients in federal detention, and lawyers who represent individuals accused of acts of violence against the country are themselves risking arrest (Cassel 2002).

The worst fears of civil libertarians and lawyers were confirmed when a jury found Stewart guilty on all the government's charges.¹ They fear that critics of government policy, from mothers opposing the war to professors speaking openly in the classroom, may have lost a protection they have always taken for granted: the right to privacy when consulting an attorney. A quietly passed prison regulation razed the attorney-client privilege and the Bill of Rights in one fell swoop. Shortly after September 11, 2001, the attorney general promulgated a Bureau of Prisons regulation permitting eavesdropping on lawyers and their clients (Rules and Regulations 2001).² The new regulation is aimed at federal inmates who, because of their political beliefs and backgrounds, are considered dangerous to national security. Under the regulation, it is probable that any number of outspoken critics of government policies may have no right to privacy when consulting with an attorney while in detention. As ill-conceived as the regulation is in that respect, its other great failure is that it will likely do little to facilitate effective intelligence gathering.

The government is devoting considerable resources to monitoring a new class of national security cases—individuals who criticize administration policies. These persons are subject to the possibility of increased surveillance because of recently relaxed FBI monitoring guidelines and the targeting of political activists; many have been falsely arrested and detained. This happens frequently to activists of different nationalities (Green 2003). The prison regulation applies to all inmates in federal detention, including pretrial detainees, INS detainees, and material witnesses, who have usually been afforded greater constitutional protections. Thus, someone held for any length of time, even in error, may be subject to monitoring.

Several Bill of Rights mainstays and tenets of international law are undermined when the attorney-client privilege is removed. The privilege invokes the Sixth Amendment right to counsel in criminal proceedings and the Fifth Amendment right against self-incrimination and the right to due process of law—which includes the right of the accused to have the effective and substantial aid of counsel, including a reasonable right of access to the courts. It also challenges the First Amendment right of association and freedom of speech by instilling fear in lawyers about whom they may represent. Furthermore, it implicates the Fourth Amendment right to be free from unreasonable searches. In addition, the attorney-client privilege is embodied in Article 14 of the International Covenant on Civil and Political Rights (ICCPR) and principle 11 of the United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

Obstructing the Administration...