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Copyright (c) 2002 Connecticut Law ReviewConnecticut Law Review Summer, 2002 34 Conn. L. Rev. 1163 LENGTH: 1965 words SYMPOSIUM: The New Regulation Allowing Federal Agents to Monitor Attorney-ClientConversations: Why It Threatens Fourth Amendment Values * * This Article was previously published in Writ. See Akhil Reed Amar & Vikram David Amar,The New Regulation Allowing Federal Agents to Monitor Attorney-Client Conversations: Why ItThreatens Fourth Amendment Values, WRIT, Nov. 16, 2001, available athttp://writ.news.findlaw.com/amar/20011116.html (on file with author). Akhil Reed Amar & Vikram David Amar ** ** Akhil Reed Amar is Southmayd Professor, Yale Law School and Vikram David Amar is aProfessor of Law at the University of California, Hastings College of Law. Only Professor AkhilReed Amar spoke at the Connecticut Law Review Symposium. SUMMARY: ... A new federal regulation threatens an old American freedom. ... But the Sixth Amendmentprotects attorney-client privilege only in the context of criminal prosecution, whereas the FourthAmendment protects privacy more broadly. ... Consider a situation in which a client is neverprosecuted (perhaps because he is thought to be a "material witness," not a suspect), or in whichprosecutors (but not investigators) are walled off from access to lawyer-client conversations. ...Such a detainee might want to consult a lawyer about a wide range of legal issues far beyond thescope of the Sixth Amendment yet within the core of historic attorney-client privacy. ... And underthe regulation, the determination that a given inmate is too dangerous to speak alone with a lawyeris made not by a judge, but by the executive branch--once again acting unilaterally withouttraditional checks and balances. ... Ashcroft rightly argues that such inmate efforts are not protectedby traditional attorney-client privilege. ... This approach to the crime-fraud exception tracks theSupreme Court's teaching in Zolin, which endorsed the idea of judicial determinations in closedchambers, but said little to support the notion that the executive branch could unilaterally dissolveattorney-client privilege upon its own Attorney General's suspicion. ... TEXT: [*1163] A new federal regulation threatens an old American freedom. On October 30, AttorneyGeneral John Ashcroft approved a Justice Department Rule allowing federal agents, under somecircumstances, to monitor traditionally confidential meetings between federal inmates and theirlawyers. The monitoring may occur whenever Ashcroft determines that "reasonable suspicion existsto believe that an inmate may use the communications with attorneys . . . to . . . facilitate acts ofterrorism." n1Importantly, "inmates" under this rule include not merely criminal convicts, but anyone "heldas witnesses, detainees or otherwise." Thus, even those detainees held under "material witness"warrants may have their conversations with attorneys monitored.I. THE HISTORY OF THE RIGHT TO CONSULT AN ATTORNEYThe right to consult an attorney in private has deep roots in Anglo-American law. Indeed,according to a 1989 Supreme Court case, United States v. Zolin, n2 "the attorney-client privilegeunder federal law [is] the oldest of the privileges for confidential communications known to thecommon law." n3 [*1164] The right is not limited to those facing criminal prosecution; it applies to all sorts oflegal counseling. Much of what clients seek to discuss may be sensitive or embarrassing--forexample, family disputes or personal finances--but the law has traditionally encouraged them toconfide broadly in their lawyers so that they can receive proper advice about their legal rights andduties.Confidentiality is key to the lawyer-client relationship; clients will hesitate to discuss delicatematters with their lawyers if they fear that their secrets will be disclosed. The historic right to consultlawyers confidentially is part of the reasonable expectation of privacy protected by the Constitution'sFourth Amendment, which prohibits "unreasonable" government intrusions.II. BOTH THE FOURTH AND SIXTH AMENDMENTS PROTECT ATTORNEY-CLIENTCOMMUNICATIONSWe stress the Fourth Amendment point because most of the initial reaction to the Ashcroftregulation has focused on the Sixth Amendment (which guarantees a right to counsel) at the expenseof the Fourth. But the Sixth Amendment protects attorney-client privilege only in the context ofcriminal prosecution, whereas the Fourth Amendment protects privacy more broadly.That is significant, particularly in the context of the current detentions of over a thousand people.Consider a situation in which a client is never prosecuted (perhaps because he is thought to be a"material witness," not a suspect), or in which prosecutors (but not investigators) are walled off fromaccess to lawyer-client conversations. In that event, the Sixth Amendment might be satisfied, butthe Fourth Amendment might not be.We must remember that those being detained by the government may have special need ofconfidential legal advice ranging far beyond criminal law. Imagine, for example, a detainee whosevery incarceration is putting pressure on his marriage, threatening his financial situation, adverselyaffecting the health of his aging parents, and causing his children to misbe-have in school. Such adetainee might want to consult a lawyer about a wide range of legal issues far beyond the scope ofthe Sixth Amendment yet within the core of historic attorney-client privacy.III. WHY THE FOURTH AMENDMENT APPLIESThe Fourth Amendment should be read to protect this entire range of communication. To begin,surely an inmate in federal detention whose every movement is tracked by the government has been"seized" within the meaning of the Amendment; and eavesdropping on conversations has long[*1165] been held to be a Fourth-Amendment protected "search."The fact that Ashcroft's proposed eavesdropping is open rather than clandestine, with federalagents sitting visibly in the room, does not eliminate Fourth Amendment concerns; the Amendmentcovers all searches and seizures, not just secret ones. (If the government announced tomorrow thatit would start recording all private telephone conversations, that announcement would hardly doaway with potential Fourth Amendment objections.)IV. WHY CONGRESS AND THE PEOPLE SHOULD REGULATE SEARCHES ANDSEIZURESJudged by general Fourth Amendment standards of reasonableness, the Ashcroft regulation istroubling. For one thing, the


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