Center and Pentagon on September 11, 2001. The trial of crimes in our constitutional system includes a host of procedural protections vital to ensuring the government gets it right, punishing the guilty-and only the guilty. Some of these rights were affected by Congress's passage of the USA Patriot Act. The President's Military Order has the effect of rendering the compromises on detention of noncitizens made in the USA Patriot Act meaningless in those cases to which it applies. According to its supporters, the President's Military Order does not simply limit constitutional rights in terrorism trials. It abolishes them altogether. The procedures to be followed under the President's Order simply will not be a matter for the Constitution, but rather for the pleasure of the Executive. And if the Executive chooses to violate even those rights it decides to confer, the order purports to preclude review at any level of federal judiciary, including the Supreme Court of the United States. We are told, however, that military courts will only be used against accused terrorists. Attorney General Ashcroft informs us that, once accused of terrorism by our government, such persons "are not entitled to and do not deserve the protections of the American Constitution." 18 It is worth repeating the Supreme Court's firm rejection of a similar argument well over a century ago: "The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government." 19 The Supreme Court made clear the stark choice that would face our nation if military rule was not expanded beyond the narrow circumstances permitted by the Constitution, but was permitted without Congressional authorization and where the civil courts were open, and their process, unobstructed. Then, the Court observed: "Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish." 20 Id. at 124-25. "20 But does the advent of modern terrorism "change everything"? The strength of our democracy has lied in our ability to resist such arguments. In Duncan v. Kahanamoku, 327 U.S. 304 (1946), the Supreme Court faced a similar argument when it considered the continued constitutionality of martial law in Hawaii, during World War 11, after the immediate threat of invasion had passed. The government insisted that the invention of nuclear weapons required new thinking for a new kind of war that would not permit the luxury of rights enshrined in an Eighteenth Century constitution. The Court rejected it. Justice Murphy said, "That excuse is no less unworthy of our traditions when used in this day of atomic warfare or at a future time when some other type of warfare may be devised." Id. at 330-31 (Murphy, J., concurring). That future time may now be upon us, but the excuse is still unworthy of our Constitution. Trial by military tribunal represents the gravest possible abrogation of civil liberty. Such use must be carefully limited to the most pressing circumstances for civil government to survive. Congress must act to ensure that these limits, and its authority, remain intact. 18 Naftali Bendavid, Critics Attack Tribunal Proposal, Chicago Tribune, Nov. 15, 2001. 19 Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 120–21 (1866). December 4, 2001 The Hon. Patrick J. Leahy 433 Russell Senate Office Bldg. The Hon. Orrin G. Hatch Washington, DC 20510 Dear Senator Leahy and Hatch: Enclosed is a Statement of Position of the American College of Trial Lawyers respectfully opposing the interim rule of the Department of Justice authorizing the monitoring by the Government of communications between prison inmates and their lawyers. The College consist of more than 5,000 invited members from the United States and Canada. to qualify for invitation to membership, our members must have a minimum of fifteen years of active trial experience and have been committed to the highest ethical standards. The College draws its members from the plaintiffs' bar and the defense bar, and includes, as well, prosecutors and criminal defense lawyers. The College is a professional organization dedicated to improving the administration of justice. The interim rule is of profound concern to the College for the reasons set forth in the Statement of Position. I respectfully request that this letter and the Statement of Position be made part of the record of the important hearing being held on this matter by the Senate Judiciary Committee. Very Truly yours, STUART D. SHANOR President Statement of American College of Trial Lawyers POSITION The American College of Trial Lawyers ("the College ") respectfully but firmly opposes the U.S. Attorney General's recent promulgation of an interim rule authorizing the Government, without prior court approval, to monitor communications between persons confined in prison and their lawyers. The College, a professional organization consisting of more than five thousand lawyers invited to membership after a minimum of fifteen years trial experience, is dedicated to improving the administration of justice. The College recognizes the need for the Department of Justice to take action to combat terrorism. But those actions must not violate constitutional and other important legal rights related to the attorney-client privilege. They must not violate the constitutional right of those imprisoned to the effective assistance of counsel. The attorney-client privilege is essential to our adversary system of justice. As Chief Justice Rehnquist has stated for the Supreme Court, "[Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader interests in the observance of law and administration of justice." The Government's unilateral usurpation of authority to monitor confidential communications between persons it has imprisoned and their lawyers will destroy this "full and frank" communication. Under the rule, the lawyer and client are to be told their communications are being monitored. Knowing that the Government is listening to what is said, clients will not confide in their lawyers. Lawyers will not provide confidential advice to their clients. Indeed, their ability to do so will be undermined because their clients will not have given them the "full and frank" communication necessary for a lawyer to provide sound advice. This will defeat the purpose of the attorney-client privilege which, as Chief Justice Rehnquist has also explained, "exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice." Further, this intrusion is unnecessary. Existing law allows for monitoring attorney-client communications under procedures which pass constitutional muster. First, the Government must have “probable cause" or "reasonable grounds" to establish that a lawyer is assisting or conspiring with his client and/or others to engage in terrorist activity, or is being used unknowingly for such a purpose. Second, the Government under existing law can then obtain authority from a court to wiretap or intercept these communications and, indeed, may do so without advising the lawyer and client that their communications are being intercepted. Importantly, however, prior court approval is a constitutional and statutory requirement. The Government cannot, in contrast to the interim rule, act unilaterally. "Probable cause" or "reasonable grounds" to establish the likelihood of ongoing criminal conduct is also a constitutional and statutory requirement for such an intrusion. The far more lenient standard of "reasonable suspicion" permitted by the rule to monitor attorney-client communications does not satisfy this constitutional requirement, even if sanctioned by a judge. Certainly, that standard is unacceptable when the Government acts unilaterally, without court approval. To any claim that national security interests argue against permitting prior approval by any member of the federal judiciary, the Foreign Intelligence Surveillance Act ("FISH "), if amended, could provide a statutory mechanism for requiring and obtaining prior judicial approval based on probable or good cause. It is no defense or justification, as the Department of Justice claims, that this rule will apply to only a few "inmates." One is one too many. If allowed to apply to a few, whoever they may be, the lenient standard of "reasonable suspicion" to be used by the Government can readily have expanded application to many. Nor is it a defense or justification that a "firewalled" or separate Department of Justice "privilege team" will monitor the attorney-client communications and disclose their contents to investigators and prosecutors only with court approval. As explained above, the known existence of the monitoring already will have "chilled" the "full and frank" communication that the Supreme Court has held the privilege is designed "to encourage." There will be virtually nothing of substance to monitor, but the inmate will have been denied effective assistance of counsel. “[T]he purpose of the privilege... to encourage clients to make full disclosure to their attorneys'," as the Supreme Court has said, will have been completely frustrated. For more than sixty-five years, the United States Supreme Court has held that communications between lawyer and client intended to further a crime or fraud are not protected by the attorney-client privilege. We agree with this holding. But this determination is, under Supreme Court law, to be made by a court, not unilaterally by the Executive Branch, an adversary to and custodian of an inmate seeking legal advice from a lawyer. The American College of Trial Lawyers respectfully urges the Government to rescind the interim rule and not to promulgate it as a final rule. Statement of the American Council of Chief Defenders, Washington, D.C. The American Council of Chief Defenders (ACCD) is gravely concerned by the U.S. Department of Justice Rule permitting monitoring of attorney-client communications. The new DOJ rule is not necessary to advance legitimate law enforcement efforts to secure public safety. Procedures and standards already exist which give law enforcement the ability to intercept communications under circumstances in which there is probable cause to believe a crime is taking, or is about to take place. The lack of a requirement for judicial intervention strips the criminal justice process of one of the important “checks and balances” which ensure a fair system. Requiring a judge to authorize monitoring of such communications is a critical means by which our system protects against harmful and unnecessary law enforcement mistakes or excesses. Judicial review is a critical component of the right to a fair process that is the foundation upon which our justice system is built. Monitoring attorney-client communications will deny individuals the right to a fair trial. The American public views access to counsel as an essential ingredient of a fair trial. The DOJ rule eradicates that right by precluding counsel, who are ethically bound to protect the privilege, from conversing with individuals whom they represent. Just as the doctor-patient privilege aids doctors in making accurate diagnoses, the attorney-client privilege is an essential aspect of the attorney's function. Without honest communication and trust, attorneys are not equipped to advise clients, to test the sufficiency of the government's evidence, or to fight a wrongful con viction. Communication with the chief executives of the Nation's indigent defense agencies would be a more effective way to address legitimate security concerns in attorney-client communications. To the extent that a concern underlying the rule is that attorneys may unknowingly assist individuals who are plotting terrorist acts, law enforcement officials and chief defenders should work together to identify the ways in which terrorists might seek to manipulate attorneys or use them as conduits for coded messages, and to train attorneys in appropriate preventive measures. To the extent that the concern is that attorneys may knowingly assist or support acts of mass murder, the suggestion is an affront to the public defense professionals whose careers are dedicated preserving the fundamental democratic values enshrined in our system of justice. ***** The ACCD is a leadership council of the National Legal Aid and Defender Association, consisting of chief executives of indigent defense systems throughout the United States and its territories. It is dedicated to securing fair justice systems by advocating for sound public policies and ensuring quality legal representation for people who are facing a loss of liberty or accused of a crime who cannot afford to hire attorneys. STATEMENT OF PRINCIPLES PRESIDENTIAL ORDER AUTHORIZING MILITARY TRIBUNALS On November 13, President Bush signed a military order establishing a process of military tribunals for trials of any person other than an American citizen suspected of a terrorist-related offense, whether apprehended in the U.S. or abroad. The order violates the constitutional separation of powers, since the creation of military commissions has not been authorized by the Congress and is outside the President's constitutional powers. The order strips away a variety of fundamental checks and balances on governmental power and the reliability and integrity of criminal judgments - safeguards which are present in other available adjudicative processes, whether the U.S. criminal justice system, military courts martial, or international courts. The procedures possible under the President's order create an unacceptable risk of miscarriage of justice and conviction and execution of the innocent. By its example, the order undermines the rule of law worldwide, and invites reciprocal treatment of U.S. nationals by hostile nations utilizing secret trials, a single entity as prosecutor, judge and jury, no judicial review, and summary executions. The trial of individuals alleged to have played a major role in the attacks of September 11, at a time when the United States is engaged in open military conflict, presents legitimate security challenges, which must be accommodated in the narrowest possible manner consistent with well established safeguards guaranteed under the U.S. Constitution and international law, including: Access to counsel of one's choosing, and a guarantee of the effective assistance of qualified counsel for defendants who cannot afford retained counsel, encompassing confidential communication with counsel, funding for necessary and reasonable expert and investigative services, and adequate time to prepare and present a defense; An independent judicial officer presiding; The right to be informed promptly of the charges, and to be released promptly if not charged or otherwise lawfully detained under established federal or international law; The right to cross-examine witnesses, and to review and meaningfully test the reliability as well as the probative value of the government's evidence, subject to existing safeguards for specific sensitive information under CIPA or similar procedures, as well as a guarantee of access to exculpatory evidence; Rights against self-incrimination and coerced confessions; A presumption of innocence; Proof beyond a reasonable doubt; Unanimous judgment as to both conviction and sentencing; and Judicial review. Individuals apprehended in this country must, of course, continue to be tried in civilian courts. If Congress elects to authorize military commissions or to use an existing international tribunal for the trial of terrorism suspects apprehended abroad, the undersigned organizations respectfully recommend that the above principles of due process, at a minimum, be accorded. Subscribed to by: NATIONAL LEGAL AID AND DEFENDER ASSOCIATION Statement of American Federation of Labor and Congress of Industrial Organizations, Executive Council, Washington, D.C. AFL-CIO delegates convene in the wake of the most shocking and destructive acts of terrorism ever perpetrated on our soil. Our convention is graced by an exhibit portraying the names of 631 union members among the dead since Sept. 11 and images of the heroes of that day. The AFL-CIO is firmly committed to bringing the perpetrators of these crimes and their patrons to justice, and supports the government's military campaign to defend our nation, and all civilized society, in a global coalition to hunt and eliminate mass murderers, their networks and their sanctuaries. Nothing less is warranted amidst grave and unprecedented circumstances where international cabals intent on sowing death, disruption and dread have access to sophisticated technology and ruthlessly exploit the inherent vulnerabilities of a democratic and open society. But there is another front in America's struggle to protect and extend freedom and security: home. And here, our love of liberty and of country compels us also to speak forcefully in opposition to a range of measures the administration has taken, or reportedly is contemplating, that threaten civil liberties, breach constitutional rights and, with tragic irony, hand our adversaries a partial victory by degrading the essential guarantees upon which our nation is founded. In October, at the administration's prodding and at the height of post-Sept. 11 anxiety, Congress enacted the so-called "USĂ PATRIOT Act," which affords an array of new and powerful toots to law enforcement applicable to circumstances well beyond "terrorism" by any definition. This law permits the indefinite detention of non-citizens on minor visa violations; expands government discretion to engage in covert telephone and Internet surveillance; permanently expands its authority to conduct searches; enables the departments of justice and State to brand groups as terrorist organizations and deport their noncitizen members; grants the Federal Bureau of Investigation broad access to business records about individuals; blurs a vital line between foreign intelligence operations and domestic law enforcement functions by enabling the Central Intelligence Agency to gather information from other agencies about American citizens and residents; and imposes excessive background check requirements on commercial trot!: drivers licensed to transport hazardous materials, applies vague standards and denies full protection for the driver's due process rights. Vigilance to ensure that the Executive Branch applies these sobering new powers responsibly presents a significant challenge to law enforcement authorities, congressional oversight bodies, the judiciary and our citizens. But even before the administration implemented these new prerogatives, it launched a series of additional initiatives by executive fiat, outside of the legislative process, and without even congressional consultation or prior public notice and discussion. Each of these initiatives is disturbing in itself; collectively, they emit the air of authoritarianism. The Justice Department has changed rules affecting federal inmates (dozens and non-citizens alike) by asserting authority to eavesdrop on attorney-client conversations upon a "reasonable suspicion" that an inmate may use such contacts to facilitate acts of "violence or terrorism." An inmate and his or her lawyer would be informed that the attorney-client privilege does not protect such conversations or their other contacts "not related to the seeking or providing of legal advice." |