nce again, John Ashcroft has spread consternation among those committed to maintaining the rule of law in these troubled and extraordinary times. On Oct. 31, the Federal Register reported that the Justice Department will henceforth eavesdrop upon conversations between detainees and their counsel whenever the attorney general concludes that there is "reasonable suspicion" to believe that these conversations are being used to facilitate terrorism. Defense lawyers and defenders of American civil liberties are up in arms. Are they right to be worried?
One need not hark back to Justice Robert Jackson's famous statement that the Bill of Rights is not a suicide pact to find ample precedent for what the attorney general proposes. Yet Ashcroft has left out one crucial component: judicial review. In a democracy based on the rule of law, we have restrictions designed to protect us from the potential lawlessness of the powerful. Judicial review is meant to assure that those who enforce the law do not overstep their bounds.
In short, the attorney general seems to have the right ends, but he has stumbled in choosing his means.
Let's begin where the Justice Department must have begun - with the rationale behind this proposed eavesdropping on what most attorneys assume to be privileged communications. The rationale is not the search for the truth or for evidence to convict the detainees of some already committed crime, even one as heinous as the mass murders of Sept. 11.
Instead, the rationale is to prevent the commission of future terrorist acts or to forestall a coverup of an ongoing terrorist conspiracy. The assumption is that attorneys and/or the interpreters they employ to communicate with incarcerated clients could be used by guilty detainees - either willingly, out of sympathy with the cause, or as naive dupes - to send messages to those outside about committing future acts of mass murder. The assumption is that the government need not, and indeed may not, sit idly by, waiting until the sleepers strike again. Indeed, the assumption is that the government has an obligation to protect the innocent from such acts.
Is that position so irrational? Clearly it is not. Does meeting that obligation by eavesdropping so violate fundamental constitutional principles that it cannot be permitted in a country that claims to be governed by the rule of law? That is a debatable question to which there are no self-evident answers.
Although the attorney-client privilege is a child of the common law and not of the Constitution, it has a time-honored history in the Anglo-Saxon jurisprudence upon which our rule of law is based. And constitutional principles are implicated in the recognition of the privilege. That is, protection of attorney-client communications also serves to protect Fourth Amendment rights against unreasonable searches and seizures, Fifth Amendment rights against self-incrimination, and Sixth Amendment rights to effective assistance of counsel.
Should we be prepared to throw these fundamental constitutional rights overboard in the name of self-protection? Was Justice Jackson correct when he warned in dissent in Terminiello v. Chicago (1949) that the Bill of Rights could become a suicide pact without "a little practical wisdom"? Or when faced with those committed to destroying not only our lives but the principles upon which our law is based, must we nonetheless afford them also the protections of that law?
These are difficult questions. I am not sure that I have yet reached an equilibrium with which I am comfortable both as a lawyer who fervently believes in the rule of law and as a citizen convinced that the fundamentalists we face would destroy that rule of law given half a chance.
And if we destroy the rule of law ourselves, are we not doing the terrorists' work for them? What we need are means to pursue the ends behind the eavesdropping now proposed without undermining our legal principles. I think such means exist.
The law of attorney-client privilege is well established and endlessly litigated. Much as it invariably surprises them to hear, the bounds of the privilege are nowhere near as sacrosanct or as airtight as many attorneys assume.
Most important, there is a very broad exception to any claim of attorney-client privilege that is known as the crime/fraud exception. Although confessions to one's lawyer about past and fully completed crimes are protected by the privilege, the use of attorney-client communications to carry out a future crime or fraud or to continue the coverup of a crime or fraud are not.
In theory, the crime/fraud exception is wide enough to drive a truck through. In practice, it has been used to defeat many a claim of privilege. What the attorney general's proposal does is take this existing precedent a step further by eliminating judicial review. Is this necessary?
It is not. Usually when the government argues that the crime/fraud exception defeats the privilege, a judge is asked to conduct an in camera inspection of that claim. The government must make a prima facie showing that the exception applies. It is not sufficient simply to make the claim or to assert that the claim is persuasive enough for the attorney general.
To be sure, in the case of today's suspected terrorists, national security concerns may render it impractical for the government to make its arguments expeditiously before many different judges. Happily for Ashcroft, there is already a court, established under the Foreign Intelligence Surveillance Act, with all the needed security to review claims that may involve sensitive intelligence information. So why not use the so-called FISA court to conform this seeming departure from the privilege - which is far less a departure than most lawyers and laymen believe it to be - to existing law?
A few caveats are warranted. There are perhaps better ways to effect the valid purpose of the U.S. government to protect its citizens while mitigating the perception that we are throwing out the baby because of the bath water. In simplest terms, we could remind lawyers that they may not remain mute if they know that mayhem is being planned. No attorney privilege muzzles them. Quite the contrary. They have an ethical obligation not to assist in the commission of any crime.
Can we rely on attorneys to act in conformity with that ethical obligation? One would hope so. We are talking about mass murder; it's not a close call.
Another alternative might be to limit the choice of defense counsel in such cases, just as the choice is now limited for indigent federal defendants. Court-appointed counsel in federal court are chosen from a panel of lawyers who have been vetted for competence. In terrorism-related cases, competence would include the clear understanding that the defense of committed crimes does not extend to even unwitting assistance in the commission of new ones.
A weaker link in the system is the interpreters. Theoretically they are covered by the lawyer's privilege (as secretaries and paralegals are), but they may lack similar professional constraints and may, for reasons of shared cultural background or ethnic identity, be more likely to sympathize with the detainees. The potential pool for Arabic interpreters is extremely limited. Indeed, attorneys may find themselves turning to the detainee's own family members or friends.
Without the knowledge of the attorneys, who are presumably dependent on them, interpreters could pass on messages to other detainees or to those not yet caught up in the net. But again, no constitutional rule of law is threatened by permitting only vetted interpreters from assisting counsel (although the detainees might justly fear that such vetted interpreters would be snitches).
Throughout history, those in hot pursuit of evil have often been tempted to cut legal corners. The attorney-client privilege, with nowhere near the breadth and reach that most laymen and indeed most lawyers believe it to have, has nonetheless served the rule of law very well. We should be reluctant to constrain it further when there is little indication that doing so will truly make us safer.
Edna Selan Epstein, a Chicago lawyer, is the author of "The Attorney-Client Privilege and the Work-Product Doctrine" (American Bar Association, May 2001, fourth edition).
