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Leahy to Ashcroft on monitoring of attorney-client convers: What the #$*& John!?

Given the grave importance of this matter and its implications for basic civil liberties, I would appreciate a response to these questions by no later than November 13. I would also respectfully suggest that full and responsive answers to my earlier letters of October 25 and 31 and November 7 and 8, 2001, be provided without further delay. I expect the Senate Judiciary Committee will be holding prompt hearings on these matters. --Sen. Leahy
Following is [some of] the text of the letter sent today by Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) to Attorney General John Ashcroft about DOJ's new policy on the monitoring of attorney-client conversations involving detainees. Leahy also spoke today by phone with the Attorney General about this issue -





November 9, 2001





The Honorable John Ashcroft


Attorney General


United States Department of Justice


950 Pennsylvania Avenue, N.W.


Washington, D.C. 20530





Dear Attorney General Ashcroft:





Since we provided you with new statutory authorities in the USA PATRIOT Act, I have felt a growing concern that the trust and cooperation Congress provided is proving to be a one-way street. You have declined several requests to appear before the Committee to answer questions and have not responded to requests to provide information on such basic points as the number of people -- according to some Department of Justice reports, more than a thousand -- currently detained without trial and without specific criminal charges under your authority. Today, I read in the newspapers that the Administration has decided that it will now provide even less information than before regarding detentions. No one has explained to me how national security compels withholding from Congress and the public - with appropriate protections, if warranted - basic information regarding people who have been detained, arrested and imprisoned.





Today I also learned through the press of another troubling development: Your unilateral executive decision to authorize interception of privileged attorney-client communications between detained persons and their lawyers. As I noted to you this morning, after having worked closely with the Department to equip Federal and State law enforcement to combat terrorism and after having received no request from you for statutory authorization to take this controversial step, and with no warning that you were contemplating such a step, I am deeply troubled at what appears to be an executive effort to exercise new powers without judicial scrutiny or statutory authorization.





I appreciate our conversation this morning, but as Chairman of the Judiciary Committee, I need answers to the grave concerns raised by your new policy.





Please provide answers to these questions:





(1) On what basis are the interceptions of privileged attorney-client communications authorized by your new policy constitutional, and what are the constitutional limits on such interceptions?





(2) What statutory authority supports such interceptions?





(3) What opportunity for prior judicial authorization and judicial review will there be of the legality of such


interceptions?





(4) What criteria will you use in deciding whether to certify that "reasonable suspicion exists to believe that an inmate may use communications with attorneys or their agents to further or facilitate acts of violence or terrorism," and in how many cases have you made such a certification?





(5) Your new regulation states that "specific procedural safeguards" will be employed to prevent abuse. Please provide a detailed description of the procedural safeguards that you will make available in all cases.





(6) Did you consider building upon current procedures and seeking court approval for monitoring in those


circumstances where it may be justified by the crime-fraud exception to the attorney-client privilege and, if so, why did you reject the process of court-supervised monitoring?





(7) When did you first begin monitoring lawyer-client conversations?





Given the grave importance of this matter and its implications for basic civil liberties, I would appreciate a response to these questions by no later than November 13. I would also respectfully suggest that full and responsive answers to my earlier letters of October 25 and 31 and November 7 and 8, 2001, be provided without further delay. I expect the Senate Judiciary Committee will be holding prompt hearings on these matters.





Very truly yours,





PATRICK LEAHY





Chairman





Senate Committee on the Judiciary





++++++++++++++++++++++++++++





Contact: David Carle, 202-224-3693





Full letter at :http://www.senate.gov/~leahy/press/200111/110901.html





WASHINGTON POST STORY





Sen. Leahy, ABA Protest Ashcroft's Monitoring Order





By Helen Dewar


Washington Post Staff Writer


Saturday, November 10, 2001; Page A11





The chairman of the Senate Judiciary Committee yesterday fired off a furious letter protesting Attorney General John D. Ashcroft's decision to monitor conversations between lawyers and some clients in federal custody when it is deemed necessary to thwart violence or terrorism.





In a new low point in relations between the two, Sen. Patrick J. Leahy (D-Vt.) complained that cooperation between


Ashcroft and Congress has become a "one-way street" since passage of anti-terrorism legislation last month. He accused Ashcroft of refusing to appear before the committee or to respond to questions about the number of people detained in connection with the Sept. 11 terrorist attacks.





Leahy gave Ashcroft a list of questions to be answered by Tuesday, including the constitutional basis for intercepting attorney-client communications. He also warned the attorney general to expect "prompt hearings on these matters."





Leahy's angriest reaction was reserved for the decision itself, which took effect immediately after it was published in the Federal Register last week. Ashcroft's rule permits the government to listen in on conversations and read mail between people in custody and their attorneys, for up to a year, if the attorney general certifies that there is "reasonable suspicion" that the inmate is using the contacts to "facilitate acts of terrorism" or violence.





The rule can apply both to convicted federal prisoners and to people who have been detained but not charged with a crime.





"I am deeply troubled at what appears to be an executive effort to exercise new powers without judicial scrutiny or statutory authorization," Leahy wrote. He said he had received no warning that Ashcroft was considering acting "unilaterally" in this sensitive area.





Ashcroft's action also drew sharp criticism yesterday from legal and civil liberties groups, including a statement by the American Bar Association saying the new policy could violate the rights of innocent people.





The Justice Department did not respond to inquiries about Leahy's letter but issued a statement describing the new rule as simply an extension of existing restrictions on certain inmates in terrorism-related cases. In a second statement, the department said only 13 of 158,000 federal prisoners would be affected. It did not say how many others might be added.





In his letter, Leahy said there are "few safeguards to liberty that are more fundamental than the Sixth Amendment," which guarantees a right to legal assistance in the criminal process. "When the detainee's legal adversary -- the government that seeks to deprive him of his liberty -- listens in on his communications with his attorney, that fundamental right and the adversary process that depends upon it are profoundly compromised," he wrote.





In the ABA's statement, President Robert E. Hirshon said the nation's largest lawyers group "is deeply troubled" by the rule. "We certainly understand the necessity to take all steps necessary, consistent with our Constitution, to prevent terrorist acts," Hirshon said. "But these new rules run squarely afoul of the Fourth and Sixth amendments to the U.S. Constitution."


 
 

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