Criminal Justice Section  


Criminal Justice Magazine
Summer 2002
Volume 17 Issue 2

Is the War on Terrorism a War on Attorney-Client Privilege?

By Paul R. Rice and Benjamin Parlin Saul

Immediately following the September 11 terrorist attacks, U.S. Attorney General John Ashcroft issued a controversial order that permits the government to monitor all communications between a client and an attorney when there is "reasonable suspicion" to "believe that a particular inmate may use communications with attorneys or their agents to further or facilitate acts of violence or terrorism." ( See Att’y Gen. Order No. 2529–2001, National Security: Prevention of Acts of Violence and Terrorism, 28 C.F.R. 500–01 (2001).) The order acknowledges such communications would otherwise "traditionally be covered under the attorney-client privilege."

(28 C.F.R. § 501.3(d).)

The order raises a wide range of constitutional concerns under the First, Fourth, Fifth, and Fourteenth Amendments to the U.S. Constitution, but this article will focus only on the order’s violation of the attorney-client relationship and the impact it will have on the suspects’ right to the effective assistance of counsel and a fair trial. These concerns are enormous because monitoring of attorney-client communications pursuant to the order will have significant implications for subsequent trials, whether in civilian or military courts. Such monitoring will inhibit clients from speaking openly and candidly with their attorneys and, therefore, will significantly impair the attorney’s ability to defend the client within the civilian and military adversarial systems.

This article also will explore the various possibilities that are open to the government relative to the communications being monitored, and will examine the direct and indirect means by which the government could circumvent the self-imposed restrictions in the U.S. attorney general’s order. Finally, each mechanism’s validity will be assessed under legal principles applicable in civilian criminal courts.

The explanation to Congress

Subsequent to issuing his order and in testimony before the Senate Judiciary Committee, Attorney General Ashcroft addressed attorney-client privilege concerns raised by the American Bar Association and other interested groups. He explained that information the attorney-client privilege otherwise protects would not be used in the prosecution of inmates when the information is obtained by monitoring such inmates’ communications pursuant to his order:

We have the authority to monitor the conversations of 16 of the 158,000 federal inmates and their attorneys because we suspect these communications are facilitating acts of terrorism. Each prisoner has been told in advance his conversations will be monitored. None of the information that is protected by attorney-client privilege may be used for prosecution. Information will only be used to stop impending terrorist acts and to save American lives.

(Anti-terrorism Policy Review: Hearing Before the Senate Comm. on the Judiciary, 107th Cong. (Dec. 6, 2001) (statement of Att’y Gen. John Ashcroft), 2001 WL 26188084).)

Concerns raised by the explanations

In the statement, "[n]one of the [seized] information that is protected by the attorney-client privilege may be used for prosecution," Attorney General Ashcroft placed no blanket prohibition on the use of seized communications. Instead, he conceded only that communications believed to be protected by the attorney-client privilege would not be used. Who will determine when the privilege attaches to inmate conversations? In his order, section 501.3(d)(3), the attorney general directs that the director of the U.S. Bureau of Prisons (with the approval of the assistant U.S. attorney general for the criminal division) establish a "privilege team." Which individuals will constitute such a team? The order largely remains silent. Indeed, the only limitation stated is that individuals assigned to the privilege team could "not [be] involved in the underlying investigation." Accordingly, the order leaves us guessing as to who will determine when the privilege applies.

Consider, too, the negative implication of Attorney General Ashcroft’s statement, namely that communications to which the privilege team decides the attorney-client privilege does not apply could be used to prosecute inmates. Is this true? The answer remains unclear. The order states that "[e]xcept in cases where the person in charge of the privilege team determines that acts of violence or terrorism are imminent, the privilege team shall not disclose any information unless and until such disclosure has been approved by a federal judge." (Order, at § 501.3(d)(3).) Absent an amendment to the order, the attorney general seems to direct members of the "privilege team" not to disclose any information to anyone. The only two conditions under which the privilege team may disclose information are (1) when the person in charge of the team "determines that acts of violence or terrorism are imminent" and (2) only after such disclosures are "approved by a federal judge."

Importantly, the term "federal judge" extends beyond Article III judges (one who normally would preside over civilian criminal proceedings) to include judges of the prospective military tribunals established to try suspected terrorists. In the military tribunal context, therefore, the executive branch will be sanctioning the conduct of its own members. As a result, the apparent judicial check on the executive branch is gossamer.

Although judicial screening still adds a safeguard to the procedures articulated in the order, it does not preclude the possibility that many otherwise privileged communications between attorney and client will be disclosed, even to the prosecuting teams. The only other limitation, namely that "acts of violence or terrorism are imminent," is unclear in its meaning. How will the privilege team determine whether the communications relate to imminent acts? How will the privilege team define imminence? It seems fair to assert, in light of the many national alerts the Department of Justice has announced since September 11, that the privilege team might disclose information with great frequency. In other words, given the nation’s heightened state of alert, the privilege team may not only be inclined, but also able to justify the use of intercepted material by claiming such material might help to prevent an imminent attack. Moreover, although the imminent acts restriction implies that any disclosures will be made only to persons or agencies attempting to prevent these acts, no explicit language exists to that effect. Even if disclosure was limited in this manner, once the information is disseminated, as a practical matter, there can be no assurance the attorney-client communications will not be more widely released and confidentiality further undermined.

There are other questions. Most importantly, whether Attorney General Ashcroft, through the order and his testimony, is conceding that attorney-client privilege presumptively applies to suspected inmate communications or whether the Department of Justice will argue that the privilege does not apply and, therefore, protects no statements? If the department concedes that the privilege applies, what standards will control claims of waiver or the applicability of exceptions, e.g., crime/fraud or national security? Who will decide these issues? If "the team"decides that the privilege protection does not apply, does that simply invalidate the restrictions set forth in the order?

Although some might believe that Attorney General Ashcroft’s assurances resolve most concerns about interception of privileged conversations, the order remains problematic. Even if the general prohibition against prosecutors using intercepted attorney-client communication was honored, the order still undermines the ability of the suspects’ attorneys to render effective assistance of counsel. For three reasons, the "privilege team" firewall that the order envisions will likely be more porous than its proponents assert. First, the privilege team—likely to be comprised mainly of executive branch personnel—may act unilaterally and without approval of a federal judge whenever it deems an act of violence or terrorism to be imminent. Second, although the order requires that the privilege team obtain approval from a federal judge before disclosing information obtained through monitoring, the term "federal judge" lacks precision. It could be read to permit approval from judges of the prospective military tribunals—thus allowing the executive branch to endorse its own actions. Third, as a practical matter, it will prove difficult for the privilege team to contain intercepted information if, for no other reason, than simple human error. But first things first, why monitor these conversations at all?

Why monitor inmate conversations?

Two reasons seem to have motivated Attorney General Ashcroft’s decision to monitor suspect inmates’ communications. First, the government fears that suspected terrorists will use their attorneys to communicate with their compatriots through sophisticated codes that the attorneys will not detect. By monitoring conversations, they hope to prevent such actions. Second, the attorney general believes that information acquired through monitoring can assist in the apprehension of coconspirators and avoid further terrorism.

The order’s first objective assumes a certain sophistication on the part of the suspected terrorists. But even if they are clever enough to dupe their lawyers into serving as unwitting messengers, the announcement of the planned bugging should, on its own and without any actual monitoring, deter inmates from using their attorneys as a means to further their destructive ends. It is quite possible that, following the issuance of the order, the government will not act—there will be no bugs, no seizures, no evidentiary leads, and no attempts to use derivative evidence at the trial of the terrorists. If, however, the government’s bugs hatch, numerous possibilities may arise, all of which jeopardize the quality of legal counsel suspected inmates will receive, and, as a consequence, preclude fair adjudication of guilt.

The attorney general’s second goal is unworkable. By announcing plans to monitor inmate communications, leads from such communications are highly unlikely to emerge. Defendants tend to provide such leads only when government seizures are unannounced. Under current law, the government could receive authorization for an unannounced wiretap from a federal judge sitting in a civilian criminal court upon showing probable cause. In other words, the Department of Justice could better uncover leads by following existing procedures.

Attorney-client privilege: its purpose and source

The attorney-client privilege protects communications between an attorney and a client when the client confidentially communicates relevant information to an attorney for the purpose of obtaining legal advice or assistance (e.g., defending himself or herself against a claim or charge or adjusting future conduct to comply with the requirement of the law). As long as the client maintains the confidentiality of those communications, the attorney-client privilege precludes the communications from (1) being discovered from either the attorney or client or (2) used against the client if disclosed due to no serious fault of the client.

Although the attorney-client privilege has existed for a millennium (originating under Roman law), the privilege operates only as a rule of evidence. The purpose of the privilege is to facilitate the proper functioning of our adversarial system in which each party must prepare a case independent of the other party. The theory behind the privilege is that when clients are assured that their communications will be kept confidential they will not worry about incriminating themselves, and, therefore, will communicate more openly and candidly with their attorneys. Our adversarial system functions on the premise that only with complete client disclosures can the attorney render effective legal assistance. In substantial measure, the fairness of an adversarial criminal justice system, be it military or civilian, depends on the attorney-client privilege.

Although the privilege is perceived as fundamental to the success of the adversarial system, the Supreme Court has never held it to be constitutionally guaranteed. Its violation, therefore, raises no constitutional issue. Denying the privilege, however, can indirectly implicate constitutional guarantees. To the extent that the privilege is fundamental to the Sixth Amendment guarantee of the effective assistance of legal counsel, a privilege violation may implicate a constitutionally protected right. For a Sixth Amendment claim to succeed, the accused must not only establish a violation of the privilege, but also demonstrate that privilege violation affected the attorney’s ability to render effective representation. The Court will not axiomatically find a Sixth Amendment violation when a privilege violation exists. ( See Weatherford v. Bursey, 429 U.S. 545, 557–58 (1977).)

Noncitizens rights

The suspected terrorists affected by the order are, for the most part, not U.S. citizens. Noncitizens may only claim a constitutional violation through the seizure of confidential attorney-client communications when such aliens are within the geographical boundaries of the United States. ( See Zadydas v. Davis, 121 S. Ct. 2491, 2501 (2001) ("It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders . . . . But once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.").)

Suspected inmates held in Cuba, as a result, enjoy no rights under the U.S. Constitution. A violation of their confidential attorney-client communications carries no constitutional implications, direct or indirect. Legally, therefore, the procedural process due aliens held in Cuba remains limited to that which international agreement requires. Because no international treaty or other agreement guarantees the right of a client to consult, in confidence, with an attorney, our government need not legally afford suspects detained in Cuba both this right or any other liberty set forth in our Bill of Rights. Legal obligation, however, neither does nor should define the limits of what rights we afford noncitizens against whom our government may initiate criminal proceedings.

We afford ourselves, as citizens, certain constitutional protections against our government when it accuses us of criminal conduct. We insist that those rights be afforded because we believe they underpin the fair adjudication of guilt in our adversarial system. Throughout our national history, we have repeatedly recognized that maintaining the perception of fairness is as important as fairness itself. Only through preservation of fairness and the perception of fairness will our system of justice command respect. An adjudicatory system without the respect of the people cannot succeed.

If our government truly believes that the rights created for its people are fundamental, how can we refuse to extend them to suspected noncitizen inmates? We should afford the accused nothing less than what we believe is needed for the fair adjudication of guilt.

Does destroying confidentiality destroy the privilege?

Confidentiality, defined as secrecy, has been the hallmark of the attorney-client privilege. It encourages defendants to communicate openly with their attorneys, and open communication, in turn, provides legal counsel with the most complete understanding of the events giving rise to the prosecution. This understanding enables counsel to provide the most appropriate legal assistance. As long as the confidentiality of each communication is preserved, the privilege continues to protect all past communications.

If the subjective expectation of confidentiality were essential to the privilege’s existence, it would appear that the government’s announced policy of listening to all suspected terrorists’ communications with legal counsel could effectively preclude the privilege from ever arising. No expectation of secrecy could reasonably be held because everyone knows that it will not be given. The privilege, however, is not so vulnerable to government manipulation.

Confidentiality has both an objective and subjective aspect. The client must subjectively hold an expectation that is objectively reasonable in the context of the attorney-client communications. Both the objective and subjective elements must be present, except when the conduct of the government destroys subjective expectations of privacy in communications that would be objectively reasonable. Because assistance in defending against criminal charges appears objectively reasonable, the government’s announced policy will not result in the wholesale evisceration of both the right to expect privacy and the privilege that is dependent upon it.

The crime/fraud exception

The privilege is applicable only when the client communicates with the attorney for the purpose of obtaining legal advice or assistance. Communications designed to further other ends, like violence or terrorism, would not be protected. When the purposes of the communication are mixed—that is, the communication furthers both legal and nonlegal (e.g., business) ends—courts examine the client’s primary intent. When the nonlegal end appears criminal or fraudulent in nature, courts, generally, find the privilege inapplicable to the communication pursuant to the crime/fraud exception. Courts reach such findings irrespective of the client’s primary motive. As a policy matter, the law will not assist a client who abuses the attorney-client relationship.

For the crime/fraud exception to apply, the government must first establish a prima facie case that furthering crime was the goal of the consultations. If a prima facie showing can be made, the privilege is considered never to have attached to the communications between the attorney and client. All communications, accordingly, become admissible against the subject client.

A prima facie case requires sufficient evidence upon which a reasonable person could find that the client initially sought the attorney’s assistance to further criminal ends. That the client later decides to use past legal assistance to achieve future illegalities will not trigger the crime/fraud exception. As with the crime of burglary, which requires the defendant to have entered with the intent of committing a felony, the client must approach the communication with a guilty mind. Importantly, the attorney’s lack of knowledge of the client’s illegal purposes does not bear on the application of the crime/fraud exception.

In the context of the suspected terrorists, the purpose of any prospective consultations, facially, appears legal in nature—that is, the suspects seek assistance from attorneys in an effort to defend against charges the government either has brought or will bring against them. Even if every suspect is guilty as charged, consulting an attorney for the purpose of assisting in the defense of an accused does not further the past crimes committed.

Other than Attorney General Ashcroft’s assertions, does any evidence exist that demonstrates or even suggests suspected terrorists might abuse the attorney-client relationship? The government’s announced theory for invading the confidentiality of the defendants’ attorney-client relationships was that the Federal Bureau of Investigation (FBI) may have substantial reason to believe defendants will attempt to pass information to coconspirators through their attorneys. Neither in the order nor in congressional testimony did Attorney General Ashcroft articulate the basis of the FBI’s suspicion. Based only on unsubstantiated theory, the government has violated a foundational principle of our adversarial system—independent adversarial preparation by opposing parties. The government seems to fear that clients will use their court-appointed attorneys as unwitting pawns. The government has offered no evidence to suggest these suspects are astute enough to perpetrate this fraud.Similarly, the government has put forth no persuasive evidence to suggest that, assuming the suspects are sophisticated enough to manipulate their attorneys, those suspects intend to further such criminal ends. Finally, why should we assume that court-appointed attorneys would either be willing to assist suspected terrorists or be capable of being fooled into serving criminal purposes?

The only evidence the attorney general has cited to justify these three assumptions about suspects and their attorneys is the April 9, 2002, indictment of attorney Lynn Stewart for communicating with Sheik Omar Abdel Rahman in violation of restrictions placed on her visits. The Stewart indictment, however, provides little justification for the attorney general’s actions. First, Rahman is not currently charged with an offense for which Stewart is rendering legal assistance. Rahman is serving a life sentence for a 1995 conviction in a thwarted attempt to assassinate Egyptian President Hosni Mubarak and bomb New York City landmarks, including the United Nations’ building. Second, the Department of Justice has been aware since the Clinton administration that Stewart periodically relayed Rahman’s messages to his followers, and has acquiesced to such violations of her visitation terms in the past. Third, in the relayed message underlying Stewart’s indictment was not connected to terrorist activities. Rahman’s statements appear to be religious messages to his followers. Although an earlier message Stewart relayed arguably was connected to terrorist activities, that message was delivered well before the September 11th attack on the Twin Towers and, more importantly, related to terrorist activities in Egypt, not the United States. The attorney general, therefore, has not established an immediate, credible threat that justifies the broad sweep of his bugging order.

National security

Although the attorney-client privilege has been touted as being absolute, surviving even beyond the death of the client, that notion is something of a fiction. As previously discussed, a crime/fraud exception has been recognized. The privilege also can be waived by the client, either directly (explicitly waiving) or implied (by asserting claims that make attorney-client communications an issue in the litigation).

Under federal common law, no exception has been recognized to the attorney-client privilege for demonstrated need. Unlike the work product immunity, "good cause" has not been accepted as a justification for either the discovery or the use of confidential attorney-client communications. Courts have rejected a good cause exception, in part, because its existence would leave clients too uncertain as to the confidentiality of their communications with their attorneys. By leaving clients confused as to when their communications with their attorneys remain privileged, a good cause exception undermines the privilege’s purpose—to encourage open communications. As the Supreme Court stated in Upjohn Co. v. United States, 449 U.S. 383, 393 (1981), "[a]n uncertain privilege . . . is little better than no privilege at all."

The closest federal courts have come to recognizing a "good cause" exception is the fiduciary duty exception. This exception permits individuals to whom a fiduciary duty is owed to gain access to attorney-client communications between the fiduciary and the fiduciary’s attorney on matters relating to the fulfillment of that fiduciary duty. Access is predicated on the demonstration of "good cause" by the beneficiary. For the most part, the fiduciary duty exception has been used in cases involving corporate shareholders suing corporate directors, claiming they have negligently mismanaged corporate assets. ( See, e.g., Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970). See generally, Paul R. Rice, Attorney-Client Privilege in the United States §§ 8:17–25 (West Group 2d ed. 1999).)

If the attorney general relies on a national security justification to support the monitoring of suspected terrorists’ attorney-client consultations, such an argument would be akin to advancing a "good cause" exception, but with two major differences. First, no clear standards exist to define executive national security powers. Second, the order permits the executive branch to violate individual rights without prior judicial approval.

The attorney general’s order and the national security powers it asserts raises issues previously not addressed in our jurisprudence. As a threshold concern, may the government legitimately use its power under the justification of national security to violate the sanctity of the attorney-client relationship in intercepting confidential attorney-client communications? Moreover, if such national security concerns justify the interception of attorney-client communications, what are the outer limits of the government’s power? Finally, if the government’s exercise of its national security powers results in the seizure of privileged communications, may the government use such information to prosecute the individuals whose rights were infringed? The central concern remains, under the text of the order, that the executive branch of our government is defining its own needs, striking its own balance, and sitting in judgment of its own actions.

Exercising appropriate power

The Supreme Court has never ruled on the specific issue of whether the attorney-client privilege may be violated in the name of national security. The Court’s broader precedent concerning the proper score of executive power in the national security context also remains unclear. ( Compare United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936) (asserting executive preeminence in national security affairs), with Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579, 585 (1952) (Jackson, J., concurring) (advocating a more balanced approach to the exercise of national security power, based on sharing among coordinate branches).) From the Court’s decisions over the past century, we can determine that the president and the executive branch possess inherent national security power. Such constitutional authority, moreover, remains greater in national security affairs than in the domestic arena. It also appears certain that the president’s and the executive branch’s national security power should be checked, at least in part, by that of Congress. National security cases arise infrequently and, when they do, courts tend to evaluate them on a case-by-case basis, examining the nature of the emergency and the extent to which Congress supported the executive action.

In the case of Attorney General Ashcroft’s order, congressional support appears tepid, if it exists at all. The Senate has reserved judgment on the order, taking no steps to endorse it. Also militating against the assertion that the order arises from an appropriate exercise of executive authority is that fact that the legislature has spoken about when it is appropriate to monitor conversations. ( See 18 U.S.C. § 2518.) A full exploration of whether the attorney general possessed the authority to promulgate the order extends beyond this article’s scope. This brief discussion as to the scope of Attorney General Ashcroft’s national security powers, nevertheless, reveals that if a new national security exception to the attorney-client privilege is recognized, the first question that courts must address is whether the order represents a valid exercise of executive branch power. If these seizures are found to be within the attorney general’s powers, the second question will be whether the product of those seizures can be used in the prosecutions of the suspected terrorists.

Using privileged information at trial

If the Department of Justice honors its claim that information obtained through monitoring under the order will be used only to deter future acts of violence or terrorism, i.e., used for intelligence purposes, then such evidence will never be presented to a court during the prosecution of a suspect. If, however, the department reneges on its promise and uses the information at trial, will courts or tribunals approve such use? History suggests, to a large extent, that the answer turns on whether the defendants will be tried in civilian criminal courts or in military tribunals. If tried in military tribunals, what rules of evidence will apply?

Military tribunals and FRE

In the context of military tribunals, the convening authority determines the rules of evidence it will follow. Such rules need not be in accord with the Federal Rules of Evidence, and civilian courts lack the power to review either the rules or the decisions under them. ( See In re Yamashita, 327 U.S. 1, 22–23 (1946).) President George W. Bush’s military order establishing the tribunals sets forth a broad standard for admissible evidence, calling for "admission of such evidence as would, in the opinion of the presiding officer of the military commission . . . have probative value to a reasonable person . . . ." (Exec. Order, Detention, Treatment, and Trial of Certain Non-citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 13, 2001).) Given both the Court’s jurisprudence in this area and the wording of the president’s order, military tribunals appear free to establish evidence rules that would allow for the admission of information obtained by monitoring inmates under Attorney General Ashcroft’s order to be used in prosecution of those same individuals.

Military tribunals, however, might elect to follow the Federal Rules of Evidence and the common law attorney-client privilege incorporated in those rules. Certainly, adopting such rules would help to create both the reality and the perception of fairness. This article continues under the assumption that military tribunals will follow the Federal Rules of Evidence and the common law of attorney-client privilege. Proceeding with such an operating assumption allows us to discuss, simultaneously, the manner in which both military tribunals and civilian criminal courts might rule on the admissibility of information obtained under Attorney General Ashcroft’s order.

As suggested throughout this article, the evidentiary consequences if the government violates the sanctity of each defendant’s attorney-client relationship remain unclear. For example, what if the government offers into evidence a tape recording of a defendant’s confession to his lawyer? What if the government offers into evidence statements seized in bugged attorney-client communications of one suspect against another? When the government offers evidence acquired from leads obtained through the bugging and if the court refuses to admit evidence directly obtained, will the court apply a derivative exclusionary rule, compelling the government to establish that the other evidence is "clean"—that is, not the product of questionable seizures?

Evidence obtained by bugging

Again, assuming the attorney-client privilege is interpreted and applied in the military tribunals as it would be applied in civilian courts, the tribunals will first have to decide if they will recognize a new exception to the privilege: one for national security emergencies. As our earlier discussion of executive national security powers demonstrates, it remains unclear in the case of Attorney General Ashcroft’s order whether monitoring inmate communications is justified. For the sake of discussion, assume such a justification is found. Does this mean that all information seized under the order is admissible to establish the defendant’s guilt?

This is a novel question vis-á-vis the attorney-client privilege. Can the actions of the executive branch in times of military emergency be justified on national security grounds but the product of those actions not be admissible in subsequent proceedings? If balancing is employed to sanction this violation of the attorney-client relationship without prior judicial approval, should the admissibility of the evidence seized through such an extraordinary situation also be determined by balancing?

For example, because this governmental action has such destructive potential in an adversarial proceeding, the government could be required to make an after-the-fact demonstration that a sufficient threat existed to employ national security powers. If the government convinces a judicial officer that such a threat existed, the evidence discovered through the bugging operation would be usable in an adversarial proceeding. If, however, the government either declines to make such a showing or attempts and fails, the seized evidence would be suppressed. The only problem with this balance is that courts historically have refused to require the executive branch to make such a showing. When the government has raised national security as a justification for not responding to discovery demands, the courts have only required the head of the department raising the privilege to have reviewed the documents and to have certified that the assertion of the privilege was justifiable. Courts have accepted that certification as facially adequate, rendering the concept of judicial review a facade. Whether they will apply the same principles in the same way when the government violates the privacy rights of individuals by seizing their conversations remains unknown.

If courts concluded that the judicial branch should not compel the executive branch to offer such demonstrations, two additional options would remain available to the tribunal (or civilian criminal court). The first option would be to admit everything on the grounds that the seizure has breached the confidentiality upon which the attorney-client privilege is premised. With the basis for the privilege destroyed, destruction of the privilege must follow. The problem with such an argument is that over the past century the concept of confidentiality has deteriorated to the point where it holds little meaning. In a number of instances, courts uniformly have continued to recognize the privilege even though knowledge of communications is no longer closely held within the tight circle of the attorney, the client, and the agents of both. ( See Paul R. Rice, Attorney-Client Privilege: The Eroding Concept of Confidentiality Should Be Abolished, 47 Duke L.J. 853 (1998). See also Paul R. Rice, Attorney-Client Privilege in the United States, § 6:4 (West Group 2d ed. 1999).)

The second option would be to suppress everything. Suppression may be the most appropriate option for two reasons. First, because courts have shown an unwillingness to engage in a meaningful review of executive national security claims, the consequences of judicial acquiescence may be less serious. Second, suppression would serve as a check against the executive branch attempting to overuse national security powers. If the government knows that no evidence obtained under the order may be used in the prosecution of any defendant, then the government will only monitor inmates under the order when it truly believes such monitoring may result in leads that may prevent future terrorist acts.

The end does not justify the means

If the individuals being tried in the military tribunals are part of the conspiracy that committed the heinous acts witnessed on national television, why should we be concerned about how the evidence of their guilt was acquired or the proceedings in which they are being tried are conducted? The answer is simple. Our system of justice was not designed simply to capture certain evildoers for the purpose of punishing them. Although punishment is a prominent and immediate objective, a longer-term goal of our justice system is both to appear and to be fair to those accused of crimes. Maintaining certain baselines of fairness instills confidence in our justice system both at home and abroad. In other words, the ends cannot justify the means. Because the world must accept the results of any trials we conduct, ensuring evidence is admitted fairly should remain of paramount concern.

Although noncitizens tried outside our territorial limits may not have a constitutional right to the effective assistance of counsel, we should not permit the unsubstantiated need of the Department of Justice to monitor their attorney-client communications to trump the world’s need to view our proceedings as fair and just. If we accept both the underpinnings of the attorney-client privilege and the benefits it provides our adversarial system, we should uphold the privilege irrespective of our desire for vengeance.

Paul R. Rice is a professor of law at the Washington College of Law at American University. He is the author of two treatises on the attorney-client privilege, Attorney-Client Privilege in the United States (West Group 2d ed. 1999) (available on Westlaw) and Attorney-Client Privilege: State Law (Rice Publishing 2002). Benjamin Parlin Saul is a law clerk for the Honorable John M. Steadman, Associate Judge, District of Columbia Court of Appeals and will join the law firm of Akin, Gump, Strauss, Hauer, and Feld, L.L.P.

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