Where Ashcroft Goes Too Far in the War on Terror

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Zealous advocate, meet zealous advocate.

Criminal defense attorney Lynne Stewart seemed outraged this week when federal prosecutors charged her with conspiring to help her client, Sheik Omar Abdel Rahman, convicted for his part in the 1993 World Trade Center bombing, pass prison messages to outside terrorist groups. While Stewart has declared herself "emphatically" not guilty of the charges, she sees zealous representation of clients as a calling, not a crime.

Attorney General John Ashcroft pursues his own job with equal zeal. Terrorists must be vanquished and lawyers who abet them punished.

In principle, the legal line for defense attorneys is clear; in practice things get fuzzy. Lawyers may properly defend clients against prosecution for past criminal conduct, but may not aid and abet new crimes being planned by these clients. Whether Stewart crossed this line will be decided by a jury in the months ahead.

But Ashcroft has already crossed a different line in his determination to fight terror. Tuesday he said that he would begin inserting federal agents into meetings between federal inmates and their lawyers whenever he suspects that these meetings are being used to facilitate acts of violence or terrorism. Never before has any Attorney General claimed such power.

Ashcroft bases his authority on a regulation that he himself issued in October, but that lay dormant until this week. This regulation covers not only criminal convicts like Rahman, but also jailed defendants awaiting trial and even "material witnesses" who have never even been accused of wrongdoing.

The Attorney General's announcement restricts one of the most basic of American rights, the right to consult a lawyer in private. This right — protected by the Constitution's Fourth Amendment — is not limited to those facing criminal prosecution, but rather applies to all sorts of legal counseling. Much of what clients discuss privately with lawyers is embarrassing or sensitive: family disputes, personal finances, health care issues, and so on.

If America is to shrink so longstanding a right, this change should come from a congressional law, not a mere executive regulation. In the wake of Sept. 11, Congress passed a comprehensive anti-terrorism statute. But this law, the USA Patriot Act, said nothing about restricting traditional lawyer-client confidentiality. As finally adopted, the Act softened several of the Bush Administration's initial proposals that most worried civil libertarians. These adjustments were part of the healthy give and take of the democratic legislative process. Ashcroft's regulation simply sidesteps the Constitution's careful system of legislative checks and balances, and indeed drew angry responses in November from Senate leaders who were not even informed of the published regulation, much less consulted beforehand.

The regulation also circumvents the judiciary. Ashcroft says that he alone — and not a judge — should decide whether a given inmate is too dangerous to speak privately with a lawyer. The charges against Stewart, however, were based on evidence acquired in the traditional way, with judicial approval of surveillance directed at the sheik and the lawyer. This indictment would seem to suggest that the traditional system works pretty well.

If the Attorney General worries that some overzealous lawyers will cross the ethical line, a more limited intrusion would be to create a roster of approved lawyers who meet the highest ethical standards — say, former Justice Department officials — and allow inmates to consult confidentially with any lawyer on that list. This approach would allow honest inmates to consult honest lawyers without government agents listening in on every word.

Perhaps Ashcroft fears that even honest attorneys may unwittingly transmit some innocent-sounding code word — "rosebud" — to terrorists on the loose. Providing lawyers with security briefings about what to watch out for would reduce this risk. And instead of putting federal agents in the room where inmates meet lawyers, the government could videotape the conversations in exceptional cases. These tapes could be reviewed in private by a judge with top-security clearance and briefing. Unless the judge found lawyer-client misconduct, executive officials would be denied access to the tapes.

Thus, there are ways to deal with improper lawyering that are less intrusive to traditional lawyer-client confidentiality than Ashcroft's approach. If new rules are needed to prevent new threats, America should frame such measures democratically, in a process that involves the legislature, the courts, and the people. In that process those zealous for liberty can be heard alongside those zealous for security.

Amar teaches constitutional law at Yale and is the author of "The Bill of Rights: Creation and Reconstruction"