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Government proposes rule to eavesdrop on phone calls between lawyers
and clients in terrorist probe

By PETE YOST
The Associated Press
11/8/01 6:38 PM

WASHINGTON (AP) -- The government says it can get around
attorney-client confidentiality as it investigates the terrorist
attacks by allowing prisons to monitor phone calls and mail of some of
those jailed after Sept. 11.

A rule published Oct. 31 in the Federal Register says the monitoring
can take place when Attorney General John Ashcroft concludes there is
"reasonable suspicion" that the communications are designed to further
terrorist acts. The rule went into effect the day before it became
public.

"The immediate implementation of this interim rule without public
comment is necessary to ensure" that the Justice Department "is able
to respond to current intelligence and law enforcement concerns
relating to threats to the national security or risks of terrorism or
violent crimes," the new rule states.

The American Civil Liberties Union decried the change. 

"I think this proposal is a terrifying nightmare for innocent people
who are under suspicion by the attorney general," said Laura W.
Murphy, director of the ACLU's national office.

Lawrence Barcella, a former federal prosecutor and now a white-collar
defense attorney in Washington, called it "beyond troubling."

"The attorney-client relationship is absolutely necessary and
constitutionally protected," he said. "That it can be wiped away on a
standard as low as reasonable suspicion is a very, very serious
intrusion."

Solomon L. Wisenberg, former deputy independent counsel to Whitewater
prosecutor Ken Starr, said that "this seems at first glance like a
very troubling approach because of its obvious infringement" on
attorney-client confidentiality.

Many constitutional rights are curtailed in the prison context, but
generally not the guarantee of private communications between
attorneys and their clients, Wisenberg said.

The Federal Bureau of Prisons ordinarily sets up two types of phones
for inmates -- one in which calls are monitored and the other where
inmates can talk confidentially with their lawyers. The monitored
phones are prominently marked so that inmates know in advance that
there is eavesdropping.

Phone calls from the designated monitored phones have been used in the
past in criminal prosecutions -- for example, in one of the cases
against longtime Bill Clinton friend Webster Hubbell. Phone calls in
which Hubbell discussed his taxes were part of the framework for a tax
evasion case against the former associate attorney general under
President Clinton.

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