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Senator Patrick Leahy
Chairman, Senate Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, D.C. 20510

Dear Senator Leahy:

Human Rights Watch is deeply concerned about the interim rule published on October 31 by the U.S. Department of Justice that permits federal government monitoring of communications between persons in federal custody and their attorneys. By abrogating the long-established confidentiality of attorney-client communications, the new rule directly infringes the right to counsel guaranteed under international human rights law and the U.S. Constitution. Attorney-client communications should only be monitored upon a court order based on probable cause that the communications fall within the well-established "crime-fraud" exception to the attorney-client privilege.

The new rule permits the government to monitor attorney-client conversations or written materials when the Attorney General has "reasonable suspicion" the inmate may use communications with attorneys to "further or facilitate" acts of terrorism. The monitoring may be undertaken to the extent "reasonably necessary for the purpose of deterring future acts of violence or terrorism."

It has long been recognized that effective exercise of the right to counsel requires the ability to communicate in private with one's attorneys. Full and candid communication between attorneys and their clients promotes the rule of law and the administration of justice. Government interference with or intrusions into attorney-client communications are consequently permitted only in extremely narrow and judicially-scrutinized cases. The new Department of Justice rule obliterates the confidentiality of attorney-client communications, however, for a new broad and vaguely defined category of people - those who are suspected of using conversations or writings with their attorneys to further terrorism.

The Department of Justice suggests the new rule is not an impermissible violation of he right to counsel because 1) persons in custody would be notified of the monitoring before its initiations, and 2) because there would be a "firewall" between the monitors of the communications and other investigators or prosecutors. Except where acts of violence are imminent, federal court approval would be required before any information obtained through the monitoring would be disclosed. Neither of these measures, however, undoes the harm caused by government surveillance of attorney-client communications. Persons in custody cannot be expected to communicate freely with their attorneys about the facts and circumstances surrounding their cases if agents of the government that put them in custody are listening in. Whether or not the information obtained from the monitoring is ever used in a criminal case, the inmate has been deprived of his or her right to maintain legal communications free from the inquiring gaze of the government.

U.S. law has long recognized that attorney-client privilege of confidentiality does not protect for communications in furtherance of future illegal conduct - the so-called "crime-fraud" exception to the privilege. The decision that those communications are not protected, however, must be made by the courts on a case-by-case basis - not by the very government that has detained and may seek to prosecute the individuals being monitored.

The unilateral decision of the Department of Justice to ignore the attorney-client privilege for certain detainees or inmates suggests a troubling indifference to the importance of safeguarding basic rights and liberties. We call on Congress to ensure that the U.S. campaign against terrorism does not entail a progressive dismantling of the very rights that have long been a hallmark of the country. We urge you to press the Department of Justice to revoke the rule or at least to modify it so that no monitoring may be undertaken except pursuant to a judicial order.

Sincerely,

Kenneth Roth
Executive Director

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