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A New York defense lawyer Wednesday filed a lawsuit to overturn new regulations that allow the government to eavesdrop on conversations between lawyers and terrorism suspects. The suit, filed against U.S. Attorney General John Ashcroft in U.S. District Court for the District of Columbia, argues that the eavesdropping regulations are unconstitutional and deprive Mohamed Rashid Daoud Al’-Owhali, who was convicted of partaking in the 1998 U.S. Embassy bombing in Kenya, of his Fifth Amendment right to due process and his Sixth Amendment right to effective assistance of counsel. The regulations, which the Department of Justice added to � 501.3 of the Code of Federal Regulations less than two months after the Sept. 11 attacks, allow the government to monitor conversations between attorneys and suspects without notice and without having to obtain a search warrant. The regulations have been defended as a fair and essential tool for helping the government learn of and prevent future terrorist attacks. But in Wednesday’s complaint Al’-Owhali’s lawyer, Frederick H. Cohn, echoed the concerns over attorney-client privilege and meaningful representation voiced by numerous attorneys since the new regulations came to light. “The monitoring of counsel’s conversations with a client, whether on notice or without notice, chills the attorney-client relationship and deprives the plaintiff herein of the right to discuss any aspect of his case with his attorney and receive honest advice in return,” the complaint says. The suit asks the court to enjoin the Department of Justice from monitoring conversations between Al’-Owhali and Cohn without a judicial determination that there is probable cause to believe the two are engaged in activity not protected by the attorney-client privilege, such as passing along information to further criminal activity. The suit does not ask for preliminary injunctive relief. “Anyone can be monitored if [the government] has probable cause and gets a warrant,” Cohn said in an interview. But, he added, � 501.3(d) does not require that those standards be met. “They could decide tomorrow to monitor him and I would never know.” The Department of Justice did not return a call seeking comment Wednesday. In a February speech at the Association of the Bar of the City of New York, Assistant Attorney General Michael Chertoff defended the eavesdropping rules, saying that they were “aggressive, but at the end of the day, fair and balanced.” Chertoff stressed that the regulations would only apply to a “very, very narrow” subset of detainees: those who have shown in the past that they might use communication with the outside world to perpetrate a crime. He added that officials who monitored the conversations would not share information with attorneys prosecuting the defendant. He also said that the monitoring was not intended to uncover what a defendant might know, but to help the government learn of future threats. SPECIAL MEASURES In his complaint, Cohn said that Al’-Owhali is certainly a member of the narrow class of defendant who is subject to possible monitoring. Since his conviction in U.S. District Court for the Southern District of New York, Al’-Owhali has been subject to special administrative measures, which, among other things, prevent him from talking to other inmates and the news media and from passing most forms of written communication. Cohn said that the 2nd U.S. Circuit Court of Appeals had approved his request to receive Criminal Justice Act funds at the rate of $90 an hour to bring the complaint. Al’-Owhali, who is serving a prison term of life without the possibility of parole, is appealing his conviction to the 2nd Circuit. Cohn said that he has discussed the suit with several attorney groups and civil liberties organizations, and added that he believes he will get support through friend-of-the-court briefs. “These things don’t go away once you get them in place,” he said of the regulations. “They get expanded.”

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