Guilt by Bar Association
Today’s New York Times reports that lawyers for the defense in terrorism cases across the country fear the Justice department is monitoring their dealings with their clients. Needless to say, this would be a gross violation of attorney-client privilege and of the Fourth Amendment if true—and it’s pretty safe to say it is, given the carefully-worded non-denial the Times quotes the Justice department offering and an actual logbook of such eavesdropping mistakenly sent to defense lawyers in one case. We can just toss it on the growing heap of constitutional violations our government has adopted as a matter of ongoing policy.
The article treats such violations primarily as problems in their own right, as indeed they are. Suspects cannot possibly get a fair trial if their conversations with their legal counsel is being tapped. The possibility that the defense’s strategy could be leaked to the prosecution is bad enough. (The DoJ denies that this happens. The DoJ has denied a lot of criminal behavior in the past seven years which have quickly proven to be the case.) On top of that are the difficulties that the defense will be sabotaged simply because lawyer and client may not be able to communicate effectively, for fear that an honest exchange will be mined for further material.
These are not just violations of the defendants’ rights, rights the DoJ and the White House no longer bother to acknowledge, preferring a presumption of guilt, or at least a conviction that “innocent until proven guilty” has somehow become a dangerous luxury in today’s dangerous world. They are violations of the lawyers’ own right to privacy, especially as information gained through tapping attorney-client discussions, and even of discussions between that attorney and other attorneys not directly involved in the case, are used to fuel prosecutions of the lawyers themselves, as they were used to prosecute and convict civil rights lawyer Lynne Stewart on charges of passing information on behalf of imprisoned terrorists, earning her a 28-month sentence of her own. Simply defending a terrorism suspect has become de facto cause to pursue the defending lawyer as a suspected terrorist.
This, too, is unconscionable, and the article addresses such concerns. What the article fails to do is address what I consider the real problem of the reported monitoring of attorney-client conversations, apart from one quick sentence way down in the fourteenth paragraph, citing lawyer Sean M. Maher for a claim that “he knew talented private lawyers who were refusing to take on terrorism cases because of potential violations of their privacy, including monitoring communications with their clients,” after which it progresses on to more detail of the immediate harm done to clients and attorneys already subjected to illegal monitoring.
That citation, however, represents a far greater threat to our system of justice than any individual harm. It is representative of how a totalitarian state, or a nascent totalitarian movement, cows the population at large. A totalitarian government doesn’t have to jail all the dissidents to silence dissent. It doesn’t even have to secure convictions for all the dissidents. It doesn’t even have to secure a conviction for a single dissident. All it has to do is harass enough dissidents to make the rest decide that taking a principled stance isn’t worth the hassle they can expect to receive. Once people decide that fighting back is too dangerous, the authoritarians silence dissent without actually continuing to silence it.
The article reports that “the administration says it has shut down the security agency’s wiretapping program.” I don’t believe it simply because the White House says so, and neither should you. But even if we were to grant it were true, the damage has been done. If good lawyers, who might otherwise defend those accused of terrorism, decide they can’t risk the trouble it might bring them, then the legal defense has been sabotaged across the board, regardless of whether any individual defendant’s trial was compromised by illegal observation.
Mission accomplished.