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Randall Hamud sat across from Mohdar Abdoulah in a basement room of the San Diego federal courthouse Nov. 20. Abdoulah, a Yemeni student detained in connection with the September terrorist attacks, was scheduled for a bail hearing that morning. “Be careful about what you say,” Hamud cautioned his 23-year-old client, “because we’re not in a secure environment.” Such warnings have taken on a greater urgency since Oct. 31. Attorney General John Ashcroft issued an interim agency rule that day allowing the monitoring of attorney-client communications when there is “reasonable suspicion” that the contact is facilitating terrorist acts. Defense lawyers say the rule is already hobbling their ability to represent clients connected to the terrorism investigation. And legal experts say a secrecy provision within the new rule may make all attorney-client contact in any law enforcement setting not only unsecure but unethical as well. “The effect of this rule is achieved by the simple threat of monitoring,” says Jonathan Turley, a professor at the George Washington University Law School in Washington, D.C. “The mere chance that the communication may be monitored is enough to silence the most cooperative defendant. The government has created a Damocles sword, and the defendant never knows when it may fall.” DAMNED IF YOU DO … The lawyer-client emergency rule is the second instance since Sept. 11 of rulemaking by the Department of Justice before a public comment period expired. On Sept. 17, Ashcroft approved an Immigration and Naturalization Service rule allowing indefinite precharge detention of individuals suspected of immigration violations. That rule was trumped by the Oct. 26 enactment of the new anti-terrorism bill, the “USA Patriot Act,” which restricts such detentions to seven days. The attorney general has justified the lawyer-client rule as necessary to prevent future acts of terrorism that may be triggered, unwittingly or purposely, through a lawyer. Once the attorney general determines that there is reasonable suspicion that a person in custody, including material witnesses, may attempt to use his lawyer to facilitate terrorist acts, a “taint” team will be created to monitor attorney-client communications. The team will be barred from revealing what it hears unless its leader believes that “acts of violence or terrorism are imminent.” The DOJ has defended the rule, which amends 28 C.F.R. 500-501, saying that a “firewall” has been constructed between teams monitoring conversations and prosecutors. But Hamud says, “It’s ridiculous to think this taint committee [won't] share with the prosecutors.” His client, one of three Sept. 11 detainees whom he has represented, was originally held in New York as a material witness. On Nov. 2, he was indicted in San Diego for making false statements on an immigration application there. Hamud is still assisting in Abdoulah’s case but has been succeeded as primary defense attorney by San Diego’s Kerry Steigerwalt. At a bail hearing Nov. 21, bond was set at $500,000, more than 20 times the normal amount, Hamud says. The DOJ says that fewer than two dozen inmates currently held are subject to the new eavesdropping rule and that the rule requires that attorneys and clients be notified before any monitoring. Defense lawyers are not mollified. Hamud still meets with jailed clients but says he is very guarded in what he says. He scans rooms for cameras, keeping his back to where they might be hidden. To communicate, he whispers and passes notes. “The problem is they can pick up whispers and they have cameras that can pick up the notes,” he says. New York lawyer Sean O’Shea has represented 15 Saudi nationals on behalf of the Saudi Arabian embassy since Sept. 11. He says that he would seek a declaration from prosecutors that there would be no monitoring before meeting with a jailed client. But he says that he’s uncertain how he would proceed if no such assurance was given. Janet Sabel, head of the New York Legal Aid Society’s immigration law unit, says that initially she thought that asking clients general information would be harmless under the new rule. Later, she became worried about the possibility that seemingly innocuous information about an illegal immigrant’s family or friends could lead the government to investigate or detain such people, she says. Sabel has had one client incarcerated in connection with the Sept. 11 investigation and has interviewed and referred several others. “They talk about creating a wall for using the information for criminal prosecutions, but what about immigration violations?” she says. “Also, in an immigration context, you have to find out if they have previous convictions, some that the INS may not know about.” Many fear a provision of the rule that seems to allow DOJ officials to obtain court approval for surveillance without notification. The rule states: “Except in the case of prior court authorization, the Director, Bureau of Prisons, shall provide written notice to the inmate and the attorneys involved, prior to the initiation of any monitoring.” Because attorneys are ethically barred from communicating with a client when privilege is uncertain, defense lawyers say communications between all attorneys and clients in a law enforcement setting are now unsafe. “Every criminal lawyer in the country is now not logically certain that the government isn’t eavesdropping,” says Hamud. This lack of certainty creates a major conflict for defense lawyers, says John Wesley Hall Jr. of Little Rock, Ark., chairman of the National Association of Criminal Defense Lawyers’ (NACDL) Ethics Committee. “You can’t talk to a client if you can’t guarantee privilege, so you have to file a motion with the court and get the government to put up and shut up,” Hall says. “But of course they don’t have to tell you” if they’ve obtained a court order allowing them to keep the surveillance secret, he says. Turley says it would be unethical for a defense lawyer not to challenge government monitoring, but adds that if such a challenge were unsuccessful, the lawyer could ethically continue representation. Former NACDL President Gerry Lefcourt says the new rule provides grounds for claims of ineffective assistance of counsel. Turley agrees, saying that any lawyer who is acting as a conduit for terrorism will not be stopped by the rule, but honest lawyers will be hamstrung. “You keep a client in continual conversation because 1 percent of what you pull from him is useful at trial,” he says. “This rule effectively suppresses the ability to do that.”

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