| http://www.newsday.com/news/opinion/ny-vpdas232475049nov23.story
Anti-Terror Wiretap Rule Is Illegal By Samuel Dash Samuel Dash, former chief counsel of the Senate Watergate committee, is a professor at Georgetown University Law Center. November 23, 2001 THE ATTORNEY general's new anti-terrorism directive - authorizing electronic interception of the communications between lawyers and jailed terrorist suspects without probable cause or court permission - violates the Fourth Amendment. Under the circumstances, prisoners must talk in jail to their lawyers either in person or on the telephone. Such communications have been protected as confidential throughout our history as an essential ingredient of our system of justice. In addition, interception of private communications without warrants has been declared illegal by the Supreme Court under the Fourth Amendment and by a federal statute enacted to implement the high court's ruling. Ominously, this overreaching by the attorney general has a dangerous precedent. During the 1973-74 Watergate period, Attorney General John Mitchell ordered, under the guise of national security, wiretaps of citizens who openly dissented from the president's policies. Mitchell claimed that the crisis at the time - the violent protests against the Vietnam War - justified the wiretaps. The Supreme Court ruled that such electronic surveillance violated the Fourth Amendment and that the attorney general and the president were under the law, not above it. The court has permitted prison wardens to monitor cells, and even prisoner's telephone calls, on the ground that this was necessary to preserve security and to prevent riots or escapes. The court, in these cases, has questioned the prisoner's legitimate expectation of privacy while in a cell. But these cases have never included monitoring communications with lawyers, particularly when the prison authorities know the communication is between attorney and client. Clearly, as law and tradition dictate, both lawyer and client can reasonably expect privacy in their communications. To challenge this circumstance is not to understate the very serious danger from terrorism our country has been facing since Sept. 11. Most Americans support proper strengthening of law enforcement's ability to cope with this domestic crisis. The attorney general already has powerful weapons to use in this fight. Lawyers are not immune from lawful search and seizure. The Supreme Court has held that if probable cause exists to show a lawyer is involved in criminal activity a judge can issue a warrant to search the lawyer's office and files. But law enforcement officials must have probable cause and a warrant. The existing federal wiretap statute provides the attorney general with emergency authority. If the attorney general has probable cause to believe that a lawyer's communication with the jailed client will involve planning terrorist activity, but does not have time to get a warrant, the statute authorizes the attorney general to immediately monitor the communication. But within 48 hours, the attorney general must present the probable cause to a judge and seek a retroactive warrant. What is not excused by the statute are the requirements of probable cause and judicial approval. Congress recently gave the attorney general broad new surveillance powers to use against terrorists. But to comply with the Fourth Amendment, even these new provisions require the attorney general to have probable cause and a court order. This Bill of Rights protection is part of what makes America a free nation. President George W. Bush has repeatedly reminded us of the difference between the terrorists and us Americans. That difference, he has stressed, is that we enjoy freedom and individual liberty, and the terrorists don't enjoy or desire these blessings and they want to take them away from us. How ironic it is for the attorney general to choose to engage in un-American practices in order to preserve our American values. |
