Home » Politics & Society » Conservative Politics » A Big Mistake

A Big Mistake

© Frank Monaldo

"In all criminal prosecutions the accused shall enjoy the right...to have the assistance of counsel for his defense."   -   Sixth Amendment to the US Constitution.

It is disappointing to listen to radio and television call-in talk shows and hear some middle Americans express an enthusiastic willingness to exchange civil liberties for greater security. This willingness is born of our current insecurity induced by the attacks on the New York World Trade Centers and the Pentagon. We have not recently experienced significant losses of civil liberties for many to understand the nature of the trade they seem prepared to accept.

This last week, the Justice Department, under Attorney General John Ashcroft, implemented rules which on their face appear to violate the Sixth Amendment's guarantee that those accused of a crime (and even those just detained) are entitled to enjoy the "assistance of counsel" in the preparation of a defense.

According to this new policy, if the attorney general formally declares that "reasonable suspicion exists to believe that an inmate may use communications with attorneys or their agents to facilitate acts of terrorism," the government can eavesdrop on their conversations. Inmates have no expectation of privacy and the government can regularly monitor conversations with friends, relatives, and other inmates. However, conversations with attorneys had always been considered privileged.

To its very modest credit, the Justice Department says that it will institute procedural safeguards to protect the attorney-client privilege. Attorneys will be notified that their conversations may be monitored. In addition, third parties, not federal prosecutors, will monitor the conversations. Presumably, the use of third parties will protect Fifth Amendment guarantees against self-incrimination. These third parties would only release the information if a federal judge approves. These efforts, nonetheless, are not sufficient.

The genius of the Constitution is that it recognizes that individuals have rights that cannot be, at least not easily, circumvented by the state. In addition, the possibility of tyranny is mitigated by the distribution of powers between branches of government. For example, before the executive branch can search a house, it needs to obtain a warrant from an independent magistrate.

It would seem that if the Justice Department has compelling reasons to believe that an inmate is initiating terrorist acts through his attorney, they should be able to so persuade an independent judge. Without the safeguard of independent review, this new policy clearly erodes Sixth Amendment protections.

The copyright of the article A Big Mistake in Conservative Politics is owned by Frank Monaldo. Permission to republish A Big Mistake in print or online must be granted by the author in writing.