WASHINGTON - Calling it an unprecedented power grab completely at odds with the Constitution, the American Civil Liberties Union today said it vehemently opposes the new Bureau of Prisons regulation allowing the government to listen in on conversations between prison inmates and their legal counsel.
"The right to an effective and vigorous defense is an absolute," said Laura W. Murphy, Director of the ACLU Washington National Office. "This is a terrifying precedent - it threatens to negate the keystone of our system of checks and balances, the right to a competent legal defense."
The regulation removes all judicial review from the eavesdropping, allowing the government to listen in any time the Attorney General believes there exists "reasonable suspicion" that a conversation between an inmate and counsel has any connection to "terrorist activity." Murphy said that this would discourage inmates from having full and open conversations with their own defense attorneys about the facts of the case, information which is a prerequisite for good legal advice.
The new regulation appeared in the Federal Register on October 31 along with a number of other changes in the current rules governing the Bureau of Prisons.
Even though the Department of Justice claims to protect inmates’ Sixth Amendment right to assistance of counsel in this new regulation by establishing a "firewall" within the department to prevent prosecutors from getting their hands on privileged information, Murphy questioned the department’s trustworthiness. She pointed out that the Department of Justice just successfully petitioned Congress to remove the firewall between intelligence and criminal investigations, a key check on law enforcement power.
Ironically, the new regulations come at the same time as the Administration is seeking to repeal the McDade-Murtha Law, a measure that was passed in 1996 in response to questions of professional misconduct by government attorneys. Its repeal would allow federal prosecutors to follow a far more lax set of ethical standards than defense attorneys.
Civil liberties advocates also fear that the regulation could provide innocent inmates a disincentive to volunteer information to their defense counsel that could potentially clear their name.
"If an suspect’s sole alibi is potentially damaging, but unrelated to the alleged crime, he or she will obviously be hesitant to whisper this little secret directly in the government’s ear," Murphy said. "Each and every person in this country must be given the constitutional right to private consultation with legal counsel."