When Attorney General John Ashcroft was a Republican senator from Missouri, he exhibited a distinct disdain for the Constitution. During his six years in the Senate, he actively attempted to alter the document in significant ways, sponsoring or supporting constitutional amendments on at least eight different issues. Now, as attorney general, Ashcroft doesn't have to bother with the consensus-building of the legislative process. He can simply issue rules and policies to shape constitutional law to his liking.
We see this in the way the Justice Department has handled information about the 1,200 or so people who have been detained since the Sept. 11 attacks. In a shocking lack of respect for public accountability in the criminal justice system, the department has refused to say who is being detained, how many people are still in custody or what, if any, charges they face. It has even rebuffed direct requests for such information by members of Congress.
Now comes a rule, issued by Ashcroft, to shatter attorney-client privilege. In cases where he believes attorneys and their clients are acting in concert to further terrorism, Ashcroft has ordered the monitoring of their conversations and mail. According to the rule, published in the Federal Register without the usual public comment period, there will be no oversight by a judge to determine the reasonableness of the department's breach of attorney-client confidentiality. The discretion would rest entirely with the attorney general.
Part of the Sixth Amendment's right to counsel is an implied right of being able to freely communicate with your lawyer. Why would any accused person speak honestly to counsel if he knew the government was listening? Why would any lawyer communicate with a client if, in doing so, he violated his professional responsibility to ensure attorney-client confidentiality?
The department says the new rules will be judiciously applied. It says anyone who has conversations monitored by law enforcement will be told in advance and any information obtained will not be shared without a judge's approval, or used in court as evidence.
However, there is no judicial oversight over who is monitored in the first place, and there is no reason to believe that once the power is granted it will be used sparingly. Law enforcement has rarely been good at limiting itself out of respect for individual rights. Instead, such constraints typically come from the courts _ which in this case have been written out of the picture.
If there is evidence to believe that an attorney is assisting in a terrorist plot, the government already can take several actions, including arresting the attorney or moving to disqualify him from the case. On occasion, attorney-client monitoring has happened, but only after evidence of probable cause was presented to a judge.
In the 1963 case of Gideon vs. Wainwright, the U.S. Supreme Court recognized that without the assistance of counsel, no criminal trial could be called fair. "The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours," wrote the court.
Ashcroft has unilaterally decided there should be exceptions to that rule. He is once again rewriting the Constitution, only this time he doesn't have colleagues standing in the way.