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U.S. Attorney General John Ashcroft’s announcement Tuesday that he would begin monitoring conversations without a warrant between imprisoned Sheik Omar Abdel-Rahman and his lawyer gave new urgency to a legal challenge to regulations allowing the taping of attorney-client conversations. Defense attorney Frederick H. Cohn said Wednesday that he expects to file papers soon in Washington, D.C., challenging the regulations as an unconstitutional assault on the attorney-client privilege. Cohn, the lawyer for Mohamed Rashed Daoud Al-’Owhali in last year’s embassy bombing case, said the indictment of defense attorney Lynne F. Stewart for helping the sheik communicate with his followers outside of prison was “absurd” and an event that caused him “great distress.” “What they want to do is bypass the normal requirement of probable cause and listen to everything I have to say to my client, and then make their own judgment about whether or not that comes with ‘material support for terrorism,’” Cohn said. “I, on the other hand, have the right to have a discussion with my client on things that might be helpful to his case without worrying about whether or not I get indicted.” Stewart’s indictment was based on court-approved monitoring going back over three years. Investigators, concerned that the sheik was trying to direct terror operations from behind bars, focused on Stewart and her alleged violation of Special Administrative Measures imposed by the Bureau of Prisons that limited the sheik’s contact with the outside world. Special Administrative Measures have also been imposed on Al-’Owhali. Two weeks ago, Cohn successfully argued before the 2nd U.S. Circuit Court of Appeals for funding under the Criminal Justice Act to go to Washington, D.C., and seek a declaratory judgment on the constitutionality of the regulations invoked by Attorney General Ashcroft. Cohn told the court that the regulations would handicap him in his ability to represent his client, who was convicted of being part of Osama bin Laden’s worldwide conspiracy to kill Americans, and for his role in the 1998 bombing of the U.S. Embassy in Nairobi, Kenya. Al-’Owhali was spared the death penalty by a Southern District jury and is serving life in prison. “There are things an attorney talks to a client about post-conviction which might not impact his case which are defense matters in the traditional sense, such as whether he would want to cooperate with the government,” Cohn said. “Clearly the government would have a great interest in knowing that, regardless of whether it’s in the context of a criminal trial or not — this severely limits what I can talk to my client about.” Sheik Abdel-Rahman is the first prisoner to be monitored and taped under the new regulations, announced in October. WARRANTLESS MONITORING Ashcroft has defended warrantless monitoring as a measure needed to protect American lives, and he assured the legal community that such monitoring under the regulations will not impair the rights of prisoners or subvert the attorney-client privilege. The regulations enable the attorney general to order monitoring of communications traditionally covered by the attorney-client privilege “for the purpose of deterring future acts that could result in death or serious bodily injury to persons …. “ Except where there is a “prior court authorization,” such as in Stewart’s case, the regulations require written notice to the attorney and his client telling them that their discussions will be monitored “to the extent necessary” to prevent acts of violence or terrorism. The assistant attorney general for the Criminal Division is charged with making sure that privileged communications “are not retained” on tape. A “privilege team” that is not involved in the underlying investigation is to be designated “to ensure the investigation is not compromised by exposure to privileged material relating to the investigation or to defense strategy … .” Finally, the privilege team is barred from disclosing any information except where violence or terrorism is “imminent” and until the disclosure is approved by a federal judge. Cohn said the regulations leave the government with a choice, either to tell him “up front” that he is going to be monitored, as will now happen with Sheik Abdel-Rahman, or not tell him, after obtaining a court order for the monitoring. And Cohn said he is skeptical about government assurances that the privilege team will maintain the wall separating the monitors from the prosecution. “The government takes the position that the people who are listening won’t tell the prosecutors, unless, of course, what is said impacts on national security, whatever that means,” Cohn said. “It chills the entire relationship and makes for ineffective assistance of counsel.” Wednesday, Robert J. Anello, the chair of the Committee on Professional Responsibility of the Association of the Bar of the City of New York, released a statement criticizing the Justice Department’s eavesdropping rules because they could force attorneys to violate their ethical and constitutional responsibilities to their clients. The government should follow the well-established procedure of obtaining a warrant from a judge after satisfying the probable cause standard before monitoring attorney-client conversations, Anello said. “Even in the war on terrorism, the basic principles on which our system of justice is balanced ought not to be tampered with,” Anello said in the statement.

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