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Fordham Law Review Vol 71 Pg 1233 Research Paper the Evisceration of the Attorney-client Priviledge in Wake of 9 11 2001-cohn M 2003

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THOMAS JEFFERSON SCHOOL OF LAW
2003 RESEARCH PAPER SERIES
In
Public Law and Legal Theory

The Evisceration of the Attorney-Client Privilege in
the Wake of September 11, 2001

By: Marjorie Cohn
Fordham Law Review, Vol. 71, p. 1233 (2003)

This paper can be downloaded without charge from
the Social Science Research Network Electronic Paper Collection at:
http://ssrn.com/abstract=446060

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THE EVISCERATION OF THE ATTORNEYCLIENT PRIVILEGE IN THE WAKE OF
SEPTEMBER 11, 2001
Marjorie Cohn*
INTRODUCTION
Attorney General John Ashcroft responded to the terrorist attacks
of September 11, 2001, by mounting a wholesale assault on civil
liberties.
He maneuvered the USA PATRIOT Act, which
significantly lowers the standards required for surveillance of
telephone and computer communications, through a timid Congress;
inaugurated a new program of COINTELPRO-style surveillance,
which was banned by Congress in the 1970s after the government used
it to target civil rights leaders like Martin Luther King, Jr.; ordered
federal agencies not to honor Freedom of Information Act requests,
an important vehicle for citizens to hold the government accountable
by requesting, receiving and publicizing public records; indefinitely
detained hundreds of men of Arab, Muslim and South Asian descent
in the United States and Guantanamo, Cuba, without charges or
suspicion of terrorist ties; became determined to create internment
camps to hold U.S. citizens in indefinite detention, where they would
be denied their constitutional rights, including the right to counsel and
access to the courts; set up the Terrorism Information and Prevention
System, to recruit millions of Americans to spy on each other and
report “suspicious activity” to the government which will then enter
the report into a national database; and granted the FBI sweeping
new surveillance powers to conduct investigations for up to one year
without suspicion of criminal activity.1
*

Professor, Thomas Jefferson School of Law, San Diego; executive vice president of
National Lawyers Guild. I am grateful to James Fife and June MacLeod for their
invaluable assistance in the preparation of this article.
1. The USA PATRIOT Act, Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub.
L. No. 107-56, was hurriedly passed by Congress in the wake of the September 11,
2001, terrorist attacks in New York, Washington D.C., and Pennsylvania. It enhances
the executive’s ability to conduct surveillance and gather intelligence. See Nancy
Chang, The USA PATRIOT Act: What’s So Patriotic About Trampling On The Bill
Of Rights? 58 Guild Prac. 142 (2001); see also Marjorie Cohn, America: A Nation of
Snitches? San Diego Union-Trib., Jul. 18, 2002, at B7; Marjorie Cohn, Americans’
Patriotic Duty to Dissent Faces Lengthy Siege, L.A. Daily J., Mar. 14, 2002, at 6;
Marjorie Cohn, War on Civil Liberties Hits a Speed Bump, Jurist: The Legal

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On October 31, 2001, Ashcroft summarily enacted an interim
amendment to Bureau of Prisons regulations,2 which permits the
government to eavesdrop on confidential communications between
attorneys and their clients, in defiance of the oldest and one of the
most venerable evidentiary privileges in our jurisprudence.
Five months later, Ashcroft indicted attorney Lynne Stewart3 for
violating special administrative measures limiting communications
with her client, Sheik Abdel Rahman, who is in custody in the Federal
Medical Center in Rochester, Minnesota. The indictment was based
on two years of governmental monitoring of conversations between
Stewart and Rahman.4
This article analyzes the attack on the attorney-client privilege since
September 11, 2001. Part I examines the historical development and
contours of the privilege, including its relationship to the Sixth
Amendment right to counsel. Part II describes the state of the
privilege during the period before September 11, 2001, including an
analysis of those provisions of Title III—the federal wiretapping
statute—and the Foreign Intelligence Surveillance Act, which impact
the privilege. It sets forth Ashcroft’s new Bureau of Prisons
regulation and discusses the legal challenges to it. Part III explains
the indictment against Lynne Stewart, her response to the charges,
and the judge’s decisions on Stewart’s arguments. The Conclusion
warns of the dangers that undermining the attorney-client privilege
poses to the United States criminal justice system.
I. HISTORY AND CONTOURS OF THE ATTORNEY-CLIENT PRIVILEGE
[I]t generally is acknowledged that the attorney-client privilege is so
sacred and so compellingly important that the courts must, within
their limits, guard it jealously.5

The attorney-client privilege is one of the most venerable of the
evidentiary privileges in Western jurisprudence. However, the
justification for its existence has changed over time.6 Although each
Education Network, (Aug. 19, 2002), at http://jurist.law.pitt.edu/forum/forumnew57.
php (last visited Jan. 23, 2003).
2. Rules and Regulations, Bureau of Prisons, U.S. Dep’t of Justice, 28 C.F.R. §§
500, 501 (2002); Prevention of Acts of Violence and Terrorism, 66 Fed. Reg. 55062,
(Oct. 31, 2001) 2001 WL 1334043.
3. Ahmed Abdel Sattar, Yassir Al-Sirri and Mohammed Yousry were also
indicted.
4. Indictment, United States v. Ahmed Abdel Sattar, Yassir Al-Sirri, Lynne
Stewart & Mohammed Yousry, No. 02 CRIM. 395 (S.D.N.Y., filed April 9, 2002),
available at http://news.corporate.findlaw.com/hdocs/docs/terrorism/ ussattar040902ind.
pdf [hereinafter Indictment].
5. Chore-time Equip. Inc. v. Big Dutchman, Inc., 255 F. Supp. 1020, 1021 (W.D.
Mich. 1966).
6. See generally Edward L. Imwinkelried, The Historical Cycle in the Law of
Evidentiary Privileges: Will Instrumentalism Come into Conflict with the Modern

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generation has recognized the beneficial effects of such a shield for
legal advocates and their clients, time and circumstances have
provided different rationales for doing so.
It is frequently stated that the attorney-client privilege is the oldest
confidential privilege recognized by the common law.7 The privileged
nature of communications between an advocate and his client was
recognized in Roman law,8 where an attorney testifying in his client’s
case was considered incompetent, either because his favorable
testimony was biased toward his client, or because his unfavorable
testimony made him disreputable and unworthy of belief.9 It is
unclear, however, whether the civil law privilege influenced the
formation of the corresponding notion in English law.10
The first recorded indications of this privilege operating in the
common law appeared during the reign of Elizabeth I, and arose
concurrently with the first appearance of compulsory process.11 As
Wigmore observed, before the advent of compulsory live testimony,
there was little need for the shielding privilege, but once the
circumstances arose, “[i]t thus appears to have commended itself, at
the very outset, as a natural exception to the then novel right of
testimonial compulsion.”12 By 1577, the privilege was recognized as
well-established.13 The rationale for the privilege at this early stage
was not the same as asserted in later case law. Prior to the eighteenth
century, the basis for recognizing the attorney-client privilege was that
the advocate had a personal oath of honor to uphold his client’s
interests, and forcing him to break that oath by testifying against the
client would besmirch the lawyer’s honor as a gentleman.14
However, by the late 1700s, the rationale underlying the privilege
began to change. Under pressure to maximize the truth-seeking
Humanistic Theories? 55 Ark. L. Rev. 241 (2002).
7. See, e.g., Upjohn Co. v. United States, 449 U.S. 383, 389 (1981); 8 John Henry
Wigmore, Evidence § 2290 (John T. McNaughton rev. ed., 1961); Jon J. Kramer, Dead
Men’s Lawyers Tell No Tales: The Attorney-Client Privilege Survives Death, 89 J. Crim
L. & Criminology 941, 942 (1999); Jean C. Moore, Evidence-at-Issue Waiver of
Attorney-Client Privilege and Public Service Co. of New Mexico v. Lyons: A Party
Must Use Privileged Materials Offensively in Order to Waive the Privilege, 31 N.M. L.
Rev. 623, 625 (2001); Ken M. Zeidner, Note, Inadvertent Disclosure and the AttorneyClient Privilege: Looking to the Work-Product Doctrine for Guidance, 22 Cardozo L.
Rev. 1315, 1320 (2001).
8. McCormick on Evidence § 87 (John W. Strong ed., West 5th ed. 1999); Max
Radin, The Privilege of Confidential Communication Between Lawyer and Client, 16
Cal. L. Rev. 487, 488 (1928).
9. Radin, supra note 8, at 488-89.
10. McCormick, supra note 8, § 87.
11. Wigmore, supra note 7, § 2290; Zeidner, supra note 7, at 1320.
12. Wigmore, supra note 7, § 2290.
13. Id. (citing Berd v. Lovelace, 21 Eng.Rep. 33 (Ch. 1577)); see also Dennis v.
Codrington, 21 Eng. Rep. 53 (Ch. 1580) (recognizing the rule “A counsellor not to be
examined of any matter, wherein he hath been of counsel”).
14. Wigmore, supra note 7, § 2290.

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powers of the judicial process, the privilege started to erode. The
notion arose in case law that an individual attorney’s personal honor
must yield to the ends of justice.15 But simultaneously—in recognition
of the importance of maintaining the privilege—a new rationale
developed, that this special dispensation was necessary to maintain
the “freedom of consultation” between a lawyer and his client.16 This
new justification arose in the mid-1700s and became the basis for the
modern attorney-client privilege.17 The “consultation” rationale
overlapped in the cases for some time with the older one. For this
reason, the modern rule of attorney-client privilege was still
developing during the nineteenth century, paradoxically making it
appear to be a more recent innovation than some newer privileges,
and leading Wigmore to remark: “Probably in no rule of Evidence
having so early an origin were so many points still unsettled until the
middle of the 1800s.”18 Despite its continuing development, the
privilege was recognized early on by the U.S. Supreme Court as well
established in the common law.19
One change which did emerge in American jurisprudence was a redefinition of the notion of “confidential communication.” Whereas
confidentiality was originally conceived as deriving from the nature of
the relationship between the attorney and client (so that any
communication between them was privileged), American courts came
to treat it as based on the nature of the communication itself,20 so that
it applied more narrowly to communications intended by the parties to
be confidential. This change was initiated in the 1890s and was not
complete until the mid-twentieth century,21 but is now an essential
part of the contemporary attorney-client privilege.
15. Id.; McCormick, supra note 8, § 87.
16. Wigmore, supra note 7, § 2290; Zeidner, supra note 7, at 1321.
17. McCormick, supra note 8, § 87.
18. Wigmore, supra note 7, § 2290.
19. Chirac v. Reinicker, 24 U.S. (11 Wheat.) 280, 294 (1826). By 1820, at least six
states and two federal circuits had acknowledged the existence of the privilege. Paul
R. Rice, Attorney-Client Privilege in the United States §§ 1:12 (1993). In England, a
limitation on the scope of the privilege arose in the eighteenth century, but did not
survive the end of the next. English courts restricted application of the privilege to
communications made in anticipation of litigation, first as to the client’s privilege
(Radcliffe v. Fursman, 1 Eng. Rep. 1101 (H.L. 1730)), and then to the lawyer’s
(Annesley v. Anglesea, 17 How. St. Tr. 1139 (Ct. Exch. in Ireland 1733)). Rice, supra,
§§ 1:6, 1:9. However, both limitations were subsequently abandoned within the next
century and a half. Id. §§ 1:8, 1:11. The cases involved were Greenough v. Gaskell, 39
Eng. Rep. 618 (Ch. 1833) (discussing attorney’s privilege) and Minet v. Morgan, L.R.
8 Ch. App. 361 (1873) (discussing client’s privilege). The litigation limitation does not
appear to have taken root in the United States, and the earliest cases preserve the
original, broad scope of privileging any communication between a lawyer and his
client. Rice, supra, § 1:12. Some abortive attempts were made to engraft the moribund
English limitation onto the American privilege. Id. § 1:13. The earliest attempt
appears to be Dixon v. Parmelee, 2 Vt. 185 (1829), but the change never caught on.
20. Rice, supra note 19, § 1:13.
21. Id. § 1:1.

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During the formative stages of the new “consultation” rationale for
the attorney-client privilege, three defining features emerged.22 First,
the client was not bound by honor to keep the confidence with his
attorney. Second, the privilege was limited to the litigation currently
at bar. Third, the privilege could be waived. The first and last of
these features seem to arise from what was one of the most significant
practical results of the shift from a personal honor basis to freedom of
consultation: the privilege was now held by the client, not by the
attorney.23 The shift of emphasis was recognized early in the history of
the privilege in American jurisprudence.24
The new rationale eventually became firmly rooted and is now the
principal justification supporting the privilege. The “freedom of
consultation” theory rests on three propositions: (1) the complexity of
the law necessitates the assistance of trained legal professionals in
order for laymen to vindicate their legal rights; (2) lawyers cannot
fulfill this role of counselor unless they have the fullest access to the
facts; (3) a client cannot be expected to be candid to the required
degree without assurance that her confidences will not be used against
her. 25
The attorney-client confidence has remained a fixed part of
American jurisprudence.26 In the two hundred years since the
privilege was formally recognized in American law, the only serious
question concerning its application has arisen just recently in the
context of how to delimit the scope of the privilege of a corporate
client. The issue first arose in a federal district court opinion that held
the privilege applied only to natural persons,27 but the decision was
eventually reversed after much negative commentary.28 While the
privilege was recognized as applicable to corporate clients, its scope
22. Wigmore, supra note 7, § 2290.
23. Zeidner, supra note 7, at 1321.
24. Id.; see Baker v. Arnold, 1 Cai. R. 258, 266 (N.Y. Sup. Ct. 1803); Chirac v.
Reinicker, 24 U.S. (11 Wheat.) 280, 294 (1826). Justice Story wrote for the Court:
The general rule is not disputed, that confidential communications between
client and attorney, are not to be revealed at any time. The privilege, indeed,
is not that of the attorney, but of the client; and it is indispensable for the
purposes of private justice. Whatever facts, therefore, are communicated by
a client to counsel, solely on account of that relation, such counsel are not at
liberty, even if they wish, to disclose; and the law holds their testimony
incompetent.
Chirac, 24 U.S. (11 Wheat.) at 294.
25. McCormick, supra note 8, § 87.
26. However, there has been criticism of the privilege by the noted utilitarian
Jeremy Bentham, who believed that the truly innocent needed no protection and that
the privilege merely allowed collusion to breed. Id. But even a person thinking
himself guilty may not be, or may be guilty of a lesser offense; it is the attorney armed
with all the facts who must advise the client about the merits of his case.
27. Radiant Burners, Inc. v. Am. Gas Ass’n., 207 F. Supp. 771 (N.D. Ill. 1962).
28. Radiant Burners, Inc. v. Am. Gas Ass’n., 320 F.2d 314 (7th Cir. 1963);
McCormick, supra note 8, § 87.1.

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was delineated somewhat by the Supreme Court in 1981.29 In Upjohn
Co. v. United States,, the Court rejected the so-called “control group”
definition of the scope of the corporate privilege utilized in
Philadelphia v. Westinghouse Electric Corp.,30 which focused on the
status of the persons communicating with the attorney and favored a
definition focused on the nature of the communication.31 Under the
Upjohn formulation, a corporate communication comes within the
privilege if it is communicated with the express purpose of securing
legal advice for the corporation, relates to the duties of the
communicating corporate employee, and is treated within the
corporation itself as confidential.32
Aside from the corporate client debate, the privilege has remained
a fairly stable and unchallenged concept in American law. In fact, its
philosophical foundation has acquired some additional support in
recent times. To the “consultation” rationale recognized since the
1700s, a new principle based on the right to privacy has been added,
though it has not been generally recognized by the courts.33 Currently
the existence of the privilege seems to rest in part on the
“consultation” rationale and in part on its role in the adversarial
structure of the legal system.34 That is, the attorney-client privilege
serves to uphold the strong fiduciary relationship between lawyer and
client, a relationship inconsistent with a system which would allow the
lawyer to disclose confidential communications. It is thus intimately
tied to the contemporary view of the lawyer’s professional
responsibilities to her client. This brings the rationale for the privilege
in the common law full circle, as once again it is seen as at least
partially grounded in the “honor” and ethics of the individual
practitioner. Because the privilege is now firmly rooted in this
professional ethos, it would be difficult to alter or eliminate the
privilege without making corresponding changes to legal ethics.35
Moreover, it is now well-settled that the purpose of the attorneyclient privilege is “to encourage full and frank communication
between attorneys and their clients and thereby promote broader
public interests in the observance of law and administration of
29. Upjohn Co. v. United States, 449 U.S. 383 (1981).
30. 210 F. Supp. 483, 485 (E.D. Pa. 1962).
31. Upjohn, 449 U.S. at 392-95.
32. Id. at 394. The privilege at issue in Upjohn arose under Federal Rule of
Evidence § 501 and thus was not made on a constitutional basis; it is therefore not
binding authority on the states. Indeed, the Court itself expressly stated it was not
laying down a set of rules for the scope of the corporate privilege and each case has to
be decided on its own merits. Id. at 396-97.
33. McCormick, supra note 8, § 87.
34. Id.
35. Id. (“To the extent that the evidentiary privilege, then, is integrally related to
an entire code of professional conduct, it is futile to envision drastic curtailment of the
privilege without substantial modification of the underlying ethical system to which
the privilege is merely ancillary.”).

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justice.”36
The attorney-client privilege has remained a staple of the common
law system from the earliest modern times. Its justification has shifted
over time, even returning to its origins, but each time the privilege has
come under attack new reasoning has quickly arisen to keep it intact.
Indeed, the attorney-client privilege has survived historical scrutiny
because a confidentiality shield is a necessary tool for effective
operation of the American jurisprudential system.
The general contours of the attorney-client privilege, as stated by
Wigmore, are as follows: Legal advice of any type is sought from a
professional legal adviser acting in that capacity; the communication
relates to that purpose; it is made in confidence by the client who
claims permanent protection of the communication; and the client
does not waive the privilege.37 The client is the holder of the privilege,
and the attorney has an ethical obligation to maintain the secrecy of
the communication.38
A. The Crime-fraud Exception
An attorney-client communication can lose its privileged character
when it is made for purposes of committing a crime or fraud.39 In
order to invoke the crime-fraud exception, the government must
make a prima facie case to a judge40 that (1) a client consulted a
lawyer for the purpose, which is later accomplished, of obtaining
assistance to engage in a crime or fraud or aiding a third person to do
so; or (2) regardless of the client’s purpose at the time of consultation,
the client used the lawyer’s advice or other services to engage in or
assist a crime or fraud.41 The crime-fraud exception obviates the
necessity for the newly amended Bureau of Prisons rule permitting
the monitoring of attorney-client communications.42 Piercing the
attorney-client privilege is reserved to the courts, not prosecutors or
prison officials.43

36. See Upjohn, 449 U.S. at 389. The privilege “is founded upon the necessity, in
the interest and administration of justice, of the aid of persons having knowledge of
the law and skilled in its practice, which assistance can only be safely and readily
availed of when free from the consequences or the apprehension of disclosure.” Id.
(quoting Hunt v. Blackburn, 128 U.S. 464, 470 (1888)).
37. Wigmore, supra note 7, § 2292.
38. McCormick, supra note 8, § 92; Model Rules of Prof’l Conduct R. 1.6 (2002);
Legal Ethics: The Lawyer’s Deskbook on Professional Responsibility R. 1.6 (20022003 ed.).
39. See United States v. Zolin, 491 U.S. 554, 562-63 (1989).
40. See United States v. De La Jara, 973 F.2d 746, 748 (9th Cir. 1992).
41. Restatement of the Law Governing Lawyers § 132 (1996).
42. See infra Part II.
43. See Zolin, 491 U.S. 554.

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B. Intersection of the Privilege and Sixth Amendment Right to Counsel
The accused in a criminal case has the right to the effective
assistance of counsel for his defense.44 This guarantee extends to
investigation and preparation of a defense, as well as to the trial
itself.45 The right to counsel includes the right to communicate with
one’s attorney.46 Indeed, the fairness of a trial can be compromised if
a defendant’s right to effectively communicate with counsel is
“inadequately respected during pre-trial confinement.”47 The Sixth
Amendment’s guarantee of effective assistance of counsel requires
“[f]ree two-way communication between client and attorney.”48 In
Weatherford v. Bursey, the Supreme Court wrote: “[T]he Sixth
Amendment’s assistance-of-counsel guarantee can be meaningfully
implemented only if a criminal defendant knows that his
communications with his attorney are private and that his lawful
preparations for trial are secure against intrusion by the government,
his adversary in the criminal proceeding.”49
Like the attorney-client privilege, the right to counsel protects the
rights to privacy and fairness.50 Effective assistance of counsel
requires confidential and unfettered communication between the
accused and his attorney at every critical stage51 of a criminal
proceeding. Some scholars have argued that the attorney-client
privilege is protected by the Sixth Amendment.52 When his attorneyclient privilege is wrongfully violated, a defendant has been denied his
Sixth Amendment right to the effective assistance of counsel.
II. THE STATE OF THE PRIVILEGE BEFORE SEPTEMBER 11 AND
ASHCROFT’S FRONTAL ASSAULT ON IT
The last three decades have seen an increased erosion of the
constitutional protections of criminal defendants. Whereas many of
44. U.S. Const. amend. VI; Gideon v. Wainwright, 372 U.S. 335, 339-40 (1963);
Strickland v. Washington, 466 U.S. 668, 686 (1984).
45. Maine v. Moulton, 474 U.S. 159 (1985). “[T]o deprive a person of counsel
during the period prior to trial may be more damaging than denial of counsel during
the trial itself.” Id. at 170.
46. Geders v. United States, 425 U.S. 80, 88-91 (1976).
47. Johnson-El v. Schoemehl, 878 F.2d 1043, 1051 (8th Cir. 1989).
48. United States v. Levy, 577 F.2d 200, 209 (3d Cir. 1978).
49. Weatherford v. Bursey, 429 U.S. 545, 554 n.4 (1977).
50. See United States v. Rosner, 485 F.2d 1213, 1224 (2d Cir. 1973); Avidan Y.
Cover, A Rule Unfit for All Seasons: Monitoring Attorney-Client Communications
Violates Privilege and the Sixth Amendment, 87 Cornell L. Rev. 1233, 1238, 1244-46,
1258 (2002); Imwinkelried, supra note 6, at 260-61.
51. The Sixth Amendment right to counsel attaches at critical stages, i.e., after the
government has initiated formal charges against the accused. Kirby v. Illinois, 406
U.S. 682, 688 n.6 (1972).
52. See, e.g., Martin R. Gardner, The Sixth Amendment Right to Counsel and Its
Underlying Values: Defining the Scope of Privacy Protection, 90 J. Crim. L. &
Criminology 397, 410-11 (2000).

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the landmark Warren Court decisions were overruled during the
Burger Court era,53 the cutback on the rights of criminal defendants
has reached its zenith with the tenure of William Rehnquist as Chief
Justice of the United States.54 This trend has paralleled a conservative
period in the country’s political system.
The government has launched an attack on the right to counsel by
targeting lawyers who represent those protesting governmental
policies. In discovery proceedings in the civil lawsuits that grew out of
the mass arrests during the 2000 Republican Convention, the law firm
that represented the city of Philadelphia questioned National Lawyers
Guild (“NLG”) attorneys about the content of discussions with their
clients. The NLG Legal Observer Coordinator, Lestor Roy Zipris,
objected to these questions as violative of the attorney-privilege, the
work-product privilege and the First Amendment right of privacy and
of association.55 Likewise, for several years, the Department of
Justice has challenged the joint defense privilege, which protects
confidential attorney-client communications by defendants who
jointly plan legal strategy in defense of charges growing out of
political activism.56
A. General Ashcroft’s New Rule
The same day that George W. Bush signed the USA PATRIOT Act
into law,57 General Ashcroft announced his interim amendment to
Bureau of Prisons regulations, which took effect five days later,
without the usual public comment period.58 “[A]n unprecedented

53. See, e.g., United States v. Leon, 468 U.S. 897, 918-21 (1984) (creating goodfaith exception to the probable cause standard required for search warrant); Nix v.
Williams, 467 U.S. 431, 443-48 (1984) (adopting inevitable discovery exception to
exclusionary rule); Illinois v. Gates, 462 U.S. 213, 230-41 (1983) (adopting “totality of
circumstances” standard for determining probable cause for search warrant); Rakas v.
Illinois, 439 U.S. 128, 133-34 (1978) (ending vicarious standing to challenge Fourth
Amendment violation).
54. See, e.g., Lewis v. Casey, 518 U.S. 343, 352-55 (1996) (refusing to assume
prejudice to inmate from showing of inadequate law library or legal assistance);
Whren v. United States, 517 U.S. 806, 813-16 (1996) (upholding constitutionality of
pretext stops); Arizona v. Fulminante, 499 U.S. 279, 308-10 (1991) (applying harmless
error standard of review to admission of coerced confessions); California v.
Greenwood, 486 U.S. 35, 40 (1988) (finding no reasonable expectation of privacy in
trash).
55. As of this writing, Zipris’s objections have not been ruled on, because the
parties are engaged in settlement negotiations. See emails from Lester Roy Zipris to
the author, Jul. 31, 2002 and Sep. 13, 2002 (on file with the author).
56. See Robert Anello, The Attorney-Client Privilege at the Crossroads: The
Indictment of Lynne Stewart, Remarks at the Benjamin N. Cardozo School of Law,
May 23, 2002 (transcript on file with author); infra note 122 and accompanying text.
57. See Chang, supra note 1.
58. Rules and Regulations, Bureau of Prisons, U.S. Dep’t of Justice, 28 C.F.R. §§
500, 501 (2002); Prevention of Acts of Violence and Terrorism, 66 Fed. Reg. 55062,
(Oct. 31, 2001) 2001 WL 1334043.

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frontal assault on the attorney-client privilege and the right to counsel
guaranteed by the Constitution,” according to the American Civil
Liberties Union,59 the new regulation permits the Department of
Justice (“DOJ”) unlimited and unreviewable discretion to eavesdrop
on confidential attorney-client conversations of persons in custody,
with no judicial oversight and no meaningful standards. It applies not
just to inmates who have been convicted of a criminal offense, but also
to all persons in the custody of the DOJ, including pretrial detainees,
material witnesses and immigration detainees who have not been
accused or convicted of any crime.60 According to Nancy Chang,
senior litigation attorney at the Center for Constitutional Rights:
“This rule is designed to chill, if not freeze, the confidential
discussions between an inmate and his attorney that are essential to a
well-prepared defense.”61
Before the amendment, the Bureau of Prisons regulations
authorized the Bureau to impose special administration measures
(“SAMs”) on certain inmates, based on information from senior
intelligence or law enforcement officials, if it had been determined
necessary to prevent the dissemination of classified information that
might endanger national security or other information that could lead
to violence or terrorism. The amended rule extends the period of
time these SAMs may remain in effect from 120 days to up to one
year, and it modifies the standards for approving extensions of the
measures. Where the Attorney General has certified that “reasonable
suspicion” exists to believe an inmate “may” use communications with
attorneys or their agents to further or facilitate acts of violence or
terrorism, the DOJ “shall . . . provide appropriate procedures for the
monitoring or review of communications between that inmate and
attorneys or attorneys’ agents who are traditionally covered by the
attorney-client privilege.”62
Ashcroft replaced the standard of “probable cause,” which is
required by both Title III and FISA,63 in accordance with the Fourth
Amendment, with the lesser “reasonable suspicion” standard.
Reasonable suspicion is reserved for situations where “necessarily
swift action predicated upon the on-the-spot observation of the officer
on the beat” justifies the use of a lesser standard.64
The DOJ “shall employ appropriate procedures to ensure that all
attorney-client communications are reviewed for privilege claims and
59. Statement for the Record of the American Civil Liberties Union Submitted to
the Senate Judiciary Committee Concerning Department of Justice Oversight:
Preserving Our Freedoms While Defending Against Terrorism, Nov. 28, 2001, 2001
WL 1506625 (F.D.C.H.).
60. 28 C.F.R. § 501.2, 501.3 (as amended).
61. Nancy Chang, Silencing Political Dissent 87 (2003).
62. 28 C.F.R. § 501.3(d) (as amended).
63. See infra text accompanying notes 85-94.
64. Terry v. Ohio, 392 U.S. 1, 20 (1968).

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that any properly privileged materials . . . are not retained during the
course of the monitoring.” The attorney-client communications that
are intercepted will be reviewed by a “privilege team,” to decide what
constitute “properly privileged materials.” This privilege team “shall
not disclose any information unless and until such disclosure has been
approved by a federal judge,” unless “the person in charge of the
privilege team determines that acts of violence or terrorism are
imminent.”65 There is no specification of the identity or qualifications
of the members of the “privilege team,” except that they are “not
involved in the underlying investigation.” They would not be neutral
magistrates.
They will be acting under the auspices of the
Department of Justice, which is tantamount to the fox guarding the
hen house.66 There are no provisions for review of the determination
of the “privilege team” that “acts of violence or terrorism are
imminent.” Thus, there is no accountability for those charged with
making the determination to pierce one of the most significant
evidentiary privileges in our jurisprudence. Furthermore, it will be
impossible for inmates and their counsel to know in advance what
parts of their intercepted communications will be deemed to be
“properly privileged materials.” The Supreme Court said in Upjohn,
if the purpose of the attorney-client privilege is to be served, the
attorney and client must be able to predict with some degree of
certainty whether particular discussions will be protected. An
uncertain privilege, or one which purports to be certain but results in
widely varying applications . . ., is little better than no privilege at
all.67

Unless it has prior court authorization, the DOJ “shall provide
written notice to the inmate and to the attorneys involved, prior to the
initiation of any monitoring or review,” that “all communications
between the inmate and attorneys may be monitored, to the extent
determined to be reasonably necessary for the purpose of deterring
future acts of violence or terrorism.”68 But, whether or not notice is
provided to the targets of the eavesdropping, the attorney-client
relationship is infected by the knowledge that it is subject to
surveillance.69
When he announced his amendment, Ashcroft acknowledged that
“[t]he existing regulations, of course, recognize the existence of the
attorney-client privilege and an inmate’s right to counsel.” He
observed, however, that materials provided to an attorney that do not
relate to the seeking or providing of legal advice are not covered by

65.
66.
67.
68.
69.

28 C.F.R. 501.3(d)(3) (as amended).
See Cover, supra note 50, at 1241.
Upjohn v. U.S., 449 U.S. 383, 393 (1980).
28 C.F.R. 501.3(d)(2) (as amended).
See infra text accompanying note 77.

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the privilege, and he cited the crime-fraud exception to the privilege.70
That exception, however, is invoked only by a judge, if the
government makes a prima facie case that it applies, using only nonprivileged evidence, and only after an in camera examination by the
court.71
Ashcroft also justified the “immediate implementation of this
interim rule without public comment” as “necessary to ensure that the
Department is able to respond to current intelligence and law
enforcement concerns relating to threats to the national security or
risks of terrorism or violent crimes that may arise through the ability
of particular inmates to communicate with other persons.” He cited
“the immediacy of the dangers to the public” as well as “the small
portion of the inmate population likely to be affected” by the new
rule.72 “[T]he delays inherent in the regular notice-and-comment
process would be ‘impracticable, unnecessary and contrary to the
public interest,’” according to Ashcroft.73 The Attorney General,
however, provided no factual basis for his assertion that this
extraordinary procedure is necessary to prevent violent crime or
terrorism.
Monitoring of prison telephones was already permitted for security
measures.74 But Ashcroft’s new regulation allows the targeted
monitoring of attorney-client conversations as the DOJ warrants, a far
cry from routine monitoring of telephone conversations for prison
security purposes. Even in prison, conversations between attorneys
and clients are protected.75
In May, 2002, attorney Fred Cohn filed a Complaint in the United
States District Court for the District of Columbia, against John
Ashcroft, on behalf of Mohamed Rashid Daoud Al’-Owhali, seeking a
declaratory judgment that Ashcroft’s new regulation violates
Al’-Owhali’s Sixth Amendment right to effective assistance of counsel
and Fifth Amendment Due Process rights.76 Al’-Owhali, who is
serving a sentence of life without the possibility of parole for his
convictions in the United States District Court for the Southern
70. Rules and Regulations, Bureau of Prisons, U.S. Dep’t of Justice, 28 C.F.R. §§
500, 501 (2002); Prevention of Acts of Violence and Terrorism, 66 Fed. Reg. 55062,
(Oct. 31, 2001) 2001 WL 1334043.
71. See United States v. Zolin, 491 U.S. 554, 572, 574 (1989).
72. Rules and Regulations, Bureau of Prisons, U.S. Dep’t of Justice, 28 C.F.R. §§
500, 501 (2002); Prevention of Acts of Violence and Terrorism, 66 Fed. Reg. 55062,
(Oct. 31, 2001) 2001 WL 1334043.
73. Ashcroft cited 5 U.S.C. § 553(b)(B), (d) in support of his decision to
circumvent the regular notice-and-comment process.
74. See United States v. Paul, 614 F.2d 115, 116 n.2 (6th Cir. 1980).
75. See United States v. Van Poyck, 77 F.3d 285, 291 n.9 (9th Cir. 1996) (stating
prisoners have an expectation of privacy when they talk to their attorneys on the
telephone).
76. Complaint, Mohamed Rashid Daoud Al’-Owhali v. John Ashcroft, No. 02CV-883 (D.D.C. May 8, 2002).

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District of New York of multiple counts of conspiracy and other
crimes arising out of the bombing of the United States Embassy in
Nairobi, Kenya, alleged that the monitoring of counsel’s conversations
with a client, with or without notice, chills the attorney-client
relationship and deprives him of his right to discuss any aspect of his
case with his attorney and receive honest advice in return.77
Al’-Owhali is seeking to enjoin Ashcroft from monitoring his
communications with his counsel without a judicial determination that
there is probable cause to believe that activity not protected by the
attorney-client privilege is occurring.78
In a recent program at Cardozo School of Law, Gerald Lefcourt, a
criminal defense attorney and past President of the National
Association of Criminal Defense Lawyers, speculated on the dangers
of the new regulation if Al’-Owhali desired to cooperate with the
government:
An appellate defense lawyer has to think about how to resolve a
case in the best interests of his client. That may mean finding more
facts for a motion for a new trial or possible cooperation with the
government. You need to know everything the client knows. But
the client can’t talk to you while being monitored. Al –Owhali may
want to cooperate. He’s been convicted. His appeal is pending in
the United States Court of Appeals. Fred Cohn might want to
discuss with him how to get out of this life sentence: “Tell me
everything you know about these kinds of activities that occurred in
Nairobi.” Now, can Fred have that conversation with his client? It is
clearly in the interest of the United States government to seek
cooperation. But if what the client says to his lawyer in this taped
conversation isn’t good enough for the government to agree to
cooperation, the government will have his statements anyway, and
could use them against him.79

In order to have a chilling effect on a client’s communications with
his attorney, it is not necessary that the privileged information actually
be intercepted and delivered to prosecutors. As soon as the attorney
and client are informed that all their communications are subject to
governmental monitoring, the attorney-client relationship is
compromised.
In Weatherford v. Bursey, the Supreme Court
acknowledged that the right to effective assistance of counsel is
threatened by a reasonable “fear that the government is monitoring
[attorney-client]
communications
through
electronic
Ashcroft’s new regulation serves as an
eavesdropping.”80
77. Id.
78. Id.
79. Gerald Lefcourt, The Attorney-Client Privilege at the Crossroads: The
Indictment of Lynne Stewart, Remarks at the Benjamin N. Cardozo School of Law,
May 23, 2002 (transcript on file with author); Telephone Interview with Gerald
Lefcourt, criminal defense attorney (Jan. 8, 2003).
80. Weatherford v. Bursey, 429 U.S. 545, 554 n.4. (1977).

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announcement that a client’s communications with his attorney are
subject to monitoring at any time. This creates a reasonable fear of
surveillance.
B. Existing Methods for Monitoring Attorney-Client Communication
The law in existence prior, and subsequent, to September 11, 2001,
amply provides for judicially-sanctioned monitoring or disclosure of
communications between clients and their attorneys where necessary
to prevent criminal activity or where there is a threat to national
security.
When a judge determines that a communication is undertaken for
the purpose of committing a crime or fraud, she can find an exception
to the attorney-client privilege, and permit disclosure of the
communication.81 If federal officials have probable cause to believe a
detainee is utilizing communications with his lawyer for the
furtherance of a criminal purpose, they can obtain a search warrant to
intercept those communications.82 They can also search an attorney’s
office if they have a search warrant supported by probable cause.83 If
prison officials have probable cause to believe an inmate is using legal
mail for unlawful purposes or if security is threatened, they can obtain
a search warrant to open and read the mail.84
Title III of the Omnibus Crime Control and Safe Streets Act of
196885 allows the government to monitor attorney-client
communications without prior notice to the targets of the surveillance,
if it secures a warrant based on probable cause that an individual has,
is or will commit an enumerated offense, and particular
communications concerning that offense will be obtained thereby,
provided normal investigative procedures have failed or are likely to
fail or be overly dangerous, and when a number of other requirements
are met. The wiretap order must be issued by a federal district or
circuit court judge.86 Title III, however, prohibits the use of
intercepted privileged communications as evidence.87
Finally, there is a formal mechanism in place to oversee electronic
surveillance when there is a threat to national security. The Foreign
Surveillance Intelligence Act (“FISA”)88 was enacted in 1978, in
81. See supra text accompanying notes 39-43.
82. See United States v. Harrelson, 754 F.2d 1153, 1168-69 (5th Cir. 1985).
83. See Andresen v. Maryland, 427 U.S. 463, 479-80 (1976).
84. See Guajardo v. Estelle, 580 F.2d 748, 759 (5th Cir. 1978).
85. 18 U.S.C. § 2510-21 (1994).
86. See id. § 2518(1), (3), (8)(b) & (d).
87. See id. § 2517(4) (“No otherwise privileged wire, oral, or electronic
communication intercepted in accordance with, or in violation of, the provisions of
this chapter shall lose its privileged character.”).
88. 50 U.S.C. § 1801. FISA defines “foreign intelligence information as:
(1) information that relates to, and if concerning a United States person is
necessary to, the ability of the United States to protect against – (A) actual

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response to the Nixon administration’s abuses of national security
wiretaps, which it used against its domestic opponents under the guise
of conducting counterintelligence investigations.89 FISA is something
of a Title III for foreign intelligence wiretapping conducted in the
United States.90 The Act established the Foreign Intelligence
Surveillance Court, which approves wiretaps in national security
investigations .91
The FISA court, comprised of Article III judges designated by the
Chief Justice of the United States, must find, among other things, that
there is probable cause to believe that the target of the electronic
surveillance is a foreign power or an agent of a foreign power92 and
that each of the facilities or places at which the electronic surveillance
is directed is being used, or is about to be used, by a foreign power or
an agent of a foreign power, “provided . . . that no United States
person may be considered a foreign power or an agent of a foreign
power solely upon the basis of activities protected by the first
amendment to the Constitution of the United States.”
The
application must also contain a certification by a designated national
security official that a significant purpose of the surveillance is to
obtain foreign intelligence information; and the application must be
approved by the Attorney General.93 As in Title III, FISA provides
or potential attack or other grave hostile acts of a foreign power or an agent
of a foreign power; (B) sabotage or international terrorism by a foreign
power or an agent of a foreign power; or (C) clandestine intelligence
activities by an intelligence service or network of a foreign power or by an
agent of a foreign power; or (2) information with respect to a foreign power
or foreign territory that relates to, and if concerning a United States person
is necessary to (A) the national defense or security of the United States; or
(B) the conduct of the foreign affairs of the United States.
Id. § 1801(e).
89. See Philip Shenon, Surveillance: Justice Dept. Denounces Secret Court on
Wiretaps, N.Y. Times, Sept. 28, 2002, at A10.
90. In United States v. United States District Court for the Eastern District of
Michigan, 407 U.S. 297 (1972) [hereinafter Keith], the Supreme Court rejected
President Richard Nixon’s request for unchecked executive power to conduct
warrantless wiretaps while investigating national security threats by domestic
organizations without foreign ties. But Keith did not examine “the scope of the
President’s surveillance power with respect to the activities of foreign powers, within
or without this country.” Id. at 308 (emphasis added). In order to fill this gap,
Congress enacted FISA. See Chang, supra note 61 at 57-58.
91. 50 U.S.C. § 1801.
92. 50 U.S.C. § 1805(a)(3) & (b). FISA’s probable cause standard is different
from the traditional Fourth Amendment standard of probable cause to believe a
crime will occur. The USA PATRIOT Act purports to amend FISA, to permit
FISA’s lesser standard of probable cause to apply to investigations which are partially
criminal, as long as a “significant purpose” of the intrusion is to collect foreign
intelligence. See USA PATRIOT Act, § 218. The FISA Court, however, in an
unprecedented opinion, wrote, “[T]his Court”—not the DOJ or the FBI—“is the
arbiter of the FISA’s terms and requirements.” See infra text accompanying note 93.
93. See 50 U.S.C. §§ 1803, 1804(a)(7), 1805(a)(1), (3)(A)-(B), (5). Although its
proceedings have always been shrouded in secrecy, the FISA court overturned a

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for the suppression of evidence, which is protected by the attorneyclient privilege.94
Ashcroft has presented no evidence to demonstrate that existing
mechanisms such as Title III, FISA and the crime-fraud exception to
the attorney-client privilege could not effectively meet his concerns
about terrorism and violent crime. There is no justification for the
elimination of judicial review and the weakening of the current
probable cause standard for electronic surveillance. The ACLU has
called the new regulation “a terrifying precedent” that “threatens to
negate the keystone of our system of checks and balances, the right to
a competent legal defense.”95
Under the International Covenant on Civil and Political Rights,96 a
major human rights treaty ratified by the United States, and therefore
binding law under the Supremacy Clause of the Constitution,97
criminal defendants and incarcerated persons have the right to
confidential communications with their lawyers.98 On November 14,
2001, the Lawyers Committee for Human Rights condemned
Ashcroft’s new regulation.99

wiretap order in May 2002, publishing an unprecedented rebuke of the Department of
Justice, whom it accused of misleading the court to justify electronic surveillance in
more than 75 investigations. The court criticized the DOJ for unlawfully permitting
intelligence information to be shared with criminal investigators, stating it had made
“erroneous statements” in applications for wiretap orders about “the separation of
the overlapping intelligence and criminal investigators and the unauthorized sharing
of FISA information with F.B.I. criminal investigators and assistant U.S. attorneys.”
See http://news.findlaw.com/nytimes/doc/terrorism/fisa111802opn.pdf. Seven months
later, however, the United States Foreign Intelligence Surveillance Court of Review
reversed the FISA lower court opinion. The FISA appellate court ruled that the DOJ
was free to use information in criminal investigations that it had acquired during the
gathering of foreign intelligence. See http://www.nytimes/docs/terrorism/fisa51702opn.
pdf.
94. See 50 U.S.C. § 1806(a) (“No otherwise privileged communication obtained in
accordance with, or in violation of, the provisions of this title shall lose its privileged
character.”). See generally United States v. Belfield, 692 F.2d 141 (D.C. Cir. 1982).
95. See Tennessee Attorneys Memo AM, Vol. 26, No. 47, Nov. 19, 2001 (quoting
the ACLU).
96. International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, U.N.
Doc. A/6316 (1966), opened for signature December 19, 1966 (entered into force Mar.
23, 1976); 138 Cong. Rec. 8068 (1992).
97. See generally Marjorie Cohn, Affirmative Action and the Equality Principle in
Human Rights Treaties: United States’ Violation of Its International Obligations, 43 Va.
J. Int’l. L. 249 (2002).
98. Human Rights Committee, General Comment 13, Article 14, Compilation of
General Comments and General Recommendations Adopted by Human Rights
Treaty Bodies, 21st Sess., at 14, U.N. Doc. HRI/GEN/1/Rev.1 (1994), http://www.umn.
edu/humanrts/gencomm/hrcom13.htm (last visited Jan. 21, 2003).
99. Lawyers Committee for Human Rights, Lawyers Committee Condemns Attack
on Attorney-Client Privilege, Nov. 14, 2001, http://www.lchr.org/protect/domestic_
terrorism_measures.htm (last visited Oct. 3, 2002).

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III. THE INDICTMENT OF LYNNE STEWART
On April 8, 2002, at the behest of Attorney General John Ashcroft,
a Grand Jury sitting in the Southern District of New York indicted
New York criminal defense attorney Lynne Stewart for conspiracy to
provide100 and for providing material support101 to a terrorist
organization (the Islamic Group), conspiracy to defraud the United
States,102 and making false statements to the U.S. Department of
Justice.103
When Ashcroft announced the filing of the indictment, he also
declared that he had “directed the Bureau of Prisons to modify the
SAM for Sheikh Abdel Rahman to include the monitoring of future
attorney-client communications to ensure that Sheikh Abdel Rahman
is not continuing to use the guise of attorney/client communications to
shield efforts to facilitate terrorist activities from jail.” Ashcroft
proclaimed that this represented “the first time since the enactment of
the USA PATRIOT Act that the Attorney General [had] exercised
his authority to monitor such communications.”104
The charges against Stewart stemmed from her representation of
Sheik Omar Abdel Rahman, who is serving a life plus 65-year
sentence for conspiring to bomb several New York City landmarks
and soliciting crimes of violence against the U.S. military and
Egyptian President Hosni Mubarak.105 Since 1997, Rahman has been
incarcerated at the Federal Medical Center in Rochester, Minnesota.
Beginning in 1997, the Bureau of Prisons, at the direction of the
Attorney General, imposed special administrative measures
(“SAMs”) on Rahman, limiting his access to the mail, the media, the
telephone and visitors, for the purpose of protecting “persons against
the risk of death or serious bodily injury.” Stewart was obliged to sign
an affirmation agreeing to be bound by the SAMs, before being
granted access to Rahman.106
The indictment alleges Stewart agreed “only to be accompanied by
translators for the purpose of communicating with inmate Abdel
Rahman concerning legal matters” and not to “use my meetings,
correspondence, or phone calls with Abdel Rahman to pass messages
between third parties (including, but not limited to, the media) and
Abdel Rahman.”107 It also alleges that Stewart allowed interpreter
100. 18 U.S.C. § 2339A(b) (1994).
101. 18 U.S.C. § 2339B.
102. 18 U.S.C. § 371.
103. 18 U.S.C. § 1001.
104. Press Release, United States Attorney, Southern District of New York (April
9, 2002), http://www.usdoj.gov/ag/speeches/2002/040902agpreparedremarksislamic
groupindictments.htm; see Chang, supra note 1.
105. Indictment, supra note 4.
106. Id.
107. Id.

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Mohammed Yousy to read letters to Rahman regarding Islamic
Group matters, and to conduct a discussion with Rahman regarding
whether Islamic Group should continue to comply with a cease-fire in
Egypt.108 Stewart is further charged with taking affirmative steps to
conceal those discussions from prison guards, and announcing to the
media that Rahman had withdrawn his support for the cease-fire, in
violation of the SAMs.109 Finally, the indictment charges Stewart with
making false statements to the U.S. Department of Justice that she
would abide by the SAMs, only communicate with Rahman regarding
legal matters, and not use meetings or telephone calls with him to pass
messages between Rahman and third parties, including the media.110
If convicted, Stewart could be sentenced to 40 years in prison.111
At the arraignment on April 9, 2002, the government represented
that its case was based, in part, on evidence obtained pursuant to
court-authorized electronic surveillance obtained pursuant to FISA.112
This evidence purportedly included intercepts from certain attorneyclient visits between Stewart and Rahman in prison, which, according
to the indictment, were used to further some of the criminal activity
alleged in the indictment.113
On April 25, 2002, Stewart sent a letter to the government seeking
disclosure of whether there was any ongoing court-authorized
monitoring under FISA, Title III, or any other provisions or on any
extra-legal basis, of the telephones in her office, her attorney Susan V.
Tipograph’s office, the law offices that include the offices of Stewart
and other criminal defense attorneys, and any of Stewart’s visits with
any of her incarcerated clients, in either federal or state custody.114
The government responded that it could not provide any assurances
it is not engaging in any court-authorized surveillance because that
would disclose information about the status or existence of ongoing
criminal investigations and/or foreign intelligence operations, if any,
which would undermine the investigations. But the government
assured the defendants that any surveillance would be conducted only
in accordance with the relevant procedural safeguards set forth in the
governing statutes and regulations.115
108. Id.
109. Id.
110. Id.
111. 18 U.S.C. §§ 371, 1001-02, 2339A(b), B (1994).
112. United States v. Ahmed Sattar, et al., No. 02 Cr. 395, 2002 U.S. Dist. LEXIS
14798 (S.D.N.Y. Aug. 12, 2002).
113. See id. at *4 (citing Letter from the Government to the Defendants (May 8,
2002) (“In accordance with the Foreign Intelligence Surveillance Act of 1978 (FISA),
notice is hereby given that information obtained or derived pursuant to the authority
of the FISA was used, and will continue to be used, in connection with the
prosecution of the above-referenced case.” (citation omitted))).
114. See id. at *6 (citing Letter from Susan V. Tipograph, Esq. to the Government
(April 25, 2002)).
115. See id. (citing Letter from the Government to Susan V. Tipograph, Esq. (May

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Stewart’s co-defendant, Ahmed Abdel Sattar, moved to compel the
government to provide assurances it was not monitoring any of his
attorney-client communications at the Metropolitan Correctional
Center without court authorization, and without prior notification
pursuant to 28 C.F.R. § 501.3(d).116 Sattar had argued that without
some assurance he would obtain prior notification of any such
surveillance, he could not effectively communicate with his counsel,
for fear the government might intercept privileged communications
and use them against him in these proceedings without any prior court
findings of probable cause that his attorney-client communications
were being used to further ongoing terrorist or criminal activity.117
The government represented to Sattar and his counsel that their
communications were not presently being monitored under § 501.3
and that the government would provide Sattar and his counsel with
prior notification if the Attorney General were to direct any such
monitoring pursuant to these regulations, unless a court authorized
the government to withhold such notice.118 Based upon these
assurances by the government, Sattar withdrew his motion.119
Stewart moved to compel the government to disclose whether it is
engaging in any surveillance of a number of locations that might
involve attorney-client communications relating to any of the
defendants or Stewart’s clients, pursuant to either Title III, FISA or
the new Bureau of Prison rule enacted by Ashcroft after September
She argued that any interception of attorney-client
11.120
communications could not be justified. Without such a disclosure,
Stewart maintained that her communications with counsel had been
sufficiently strained to deprive her of effective assistance of counsel
due to the fear that the government might intercept privileged
communications and use them against her in these proceedings.121 She
also argued that to the extent that the other defendants lack similar
assurances, her ability to enter into a joint defense agreement122 with
2, 2002)).
116. Id. at *3.
117. Id. at *5.
118. Id. at *6-7.
119. Id. at *11.
120. Id. at *11-12.
121. Id. at *12.
122. Id. The “joint defense privilege,” which is embodied in a “joint defense
agreement,” is an extension of both the attorney-client privilege and the work product
doctrine. See Waller v. Fin. Corp. of Am., 828 F.2d 579, 583 n.7 (9th Cir. 1987);
Rebecca J. Wilson & Elizabeth A. Houlding, Using Joint Defense Privilege
Agreements in Parallel Civil and Criminal Proceedings, 68 Def. Couns. J. 449 (2001).
The joint defense privilege, which protects communications between a defendant and
the attorney for a co-defendant if the communications are pursuant to a joint strategy.
Wilson, supra. It applies when the communications were made pursuant to a joint
defense effort. They were designed to further the joint effort, and the privilege has
not been waived. See United States v. Am. Tel. & Tel. Co., 642 F.2d 1285, 1298-99
(D.C. Cir. 1980).

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them had been hampered, which would undermine her ability to
obtain effective representation in this case.123
United States District Judge John G. Koeltl denied Stewart’s
motion to compel disclosure of any ongoing surveillance pursuant to
Title III or FISA.124 He cited detailed provisions in both statutes for
notice and the opportunity to challenge surveillance after it occurs
and before it is used against a defendant, but said they “do not
provide for advance notice,. . . which would undermine the efficacy of
the statutes.”125 Judge Koeltl noted that Stewart cited no authority for
the proposition that “a bare fear of surveillance, without more, is
sufficient to establish a constitutional requirement that the
government disclose whether it is engaging in any court-authorized
surveillance of a criminal defendant under Title III or FISA.”126
Judge Koeltl rejected Stewart’s Sixth Amendment argument, noting
that “[w]here the intrusion upon an attorney-client communication is
unintentional or justified there can be no violation of the Sixth
Amendment” without a showing of prejudice.127 He further found
Stewart’s belief that she has been “chilled in her ability to consult with
her attorneys,” which denies her the effective assistance of counsel, to
be unreasonable.128
The government’s allegation that Stewart violated the SAMs is
based on a press conference, where she declared that Rahman had
withdrawn his support for a cease-fire.129 Responding to the charges
against Stewart, her attorney, Michael Tigar, said at a conference at
Cardozo Law School:
The obligation of lawyers, the thought of lawyers to hold a press
conference to take these controversies into the public forum, is
central to what we do. It is said that Lynne . . . what did she do?
She somehow expressed in public the ideology of her client. You
know legal representation often involves you doing that . . . You are
fooling yourself, lawyers, if you don’t think that your practice
reflects some kind of ideology.130

Stewart now frequently refers to herself as “The Poster Child for
the PATRIOT Act.”131 In an address to a conference sponsored by
the National Lawyers Guild, the California Attorneys for Criminal
Justice, and the California Public Defenders Association, Stewart
123. Ahmed Sattar, 2002 U.S. Dist. LEXIS 14798.
124. Id. at *28.
125. Id. at *18.
126. Id. at *19 (citing United States v. Defede, No. 98 Cr. 373, slip op. at 1
(S.D.N.Y. Sep. 22, 1998)).
127. Id. at *20 (emphasis added).
128. Id. at *21.
129. See supra text accompanying note 108.
130. See supra note 56.
131. See Susan B. Jordan, The Right to Defend: An Interview with Lynne Stewart, 59
Guild Prac. (forthcoming 2002).

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expressed alarm at what her indictment portends for the attorneyclient privilege and criminal defense. She said: “This is about
protecting the right to defend. Once the attorney-client privilege is
lost, there is no right to defend as we know it.” Speaking specifically
about the monitoring of her conversations with her client, Stewart
stated: “The question you should be asking is not what I was doing in
that room, but what was the government doing in that room?”132
The Manhattan courtroom where Stewart was arraigned was
packed with lawyers and legal workers from the National Lawyers
Guild and the Center for Constitutional Rights, who were astonished
that Stewart had been indicted. Bruce Nestor, president of the
National Lawyers Guild, issued a statement, saying: “Stewart is a
veteran criminal defense attorney who often represents both
controversial causes and unpopular clients. The government seems to
be singling her out as ‘poster child’ for its campaign to justify the
unconstitutional monitoring of conversations between lawyers and
inmates.” Nestor worried that this indictment “may have a chilling
effect on lawyers who want to represent politically active clients but
are afraid of being singled out by the government for surveillance.”133
New York attorney Sandra Nichols echoed Nestor’s concerns: “I think
it was done to have a chilling effect and I know a lot of attorneys are
reluctant to represent detainees post-9/11.”134
Likewise, Stanford Law School Professor Deborah L. Rhode wrote
in The New York Times, that “such felony indictments could affect
lawyers’ willingness to defend despised groups, like suspected
terrorists, at all.” She felt “it should be a concern that lawyers must
agree to such restrictions [the SAM] as a condition of communicating
with their clients.” According to Professor Rhode, “America’s civil
liberties depend on counsel willing to assert them.” She cited John
Adams, who lost half his practice because he defended British officers
who were charged in the Boston Massacre; Adams considered that
case “one of the best pieces of service that I ever rendered for my
country.” Rhode’s primary worry: “If the indictment against Ms.
Stewart signals a broader trend to crack down not just on terrorists
but on those courageous enough to represent them, we are all at
risk.”135
It was not accidental that it was Lynne Stewart whom John
Ashcroft chose to indict. According to Heidi Boghosian, executive
132. Lynne Stewart, Remarks at National Lawyers Guild Convention (Oct. 16,
2002).
133. See Heidi Boghosian, Guild Member Lynne Stewart Indicted: Grave Threat to
Attorney-Client Privilege, XXVII Guild Notes 1 (2002).
134. See Jim Edwards, Struggling to Keep Client Confidences: Lawyers in Post-Sept.
11 ‘Special Interest’ Cases Talk About How They Are Coping With Often-Intrusive
Government Security Measures, 169 N.J. L. J. 568 (2002).
135. Deborah L. Rhode, Terrorists and Their Lawyers, N.Y. Times, Apr. 16, 2002,
at A31.

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director of the National Lawyers Guild:
In addition to being a model of how lawyers should champion the
rights of those who most need zealous legal advocacy, Stewart was
also a prime target for the Attorney General, who needed
desperately to show that the Justice Department was actively
fighting terrorism.
Having arrested only one person since
September 11—John Walker Lindh—the Department’s choice of
Lynne Stewart as a highly visible indictee spoke volumes.136 Her
clients were well-known to the general public; their beliefs were
vilified by the government; in short, they fit into the rubric of the
Bush administration’s “axis of evil” rhetoric. By indicting Stewart,
Ashcroft effectively sent the dual message that he could indict other
lawyers who represented clients with unpopular beliefs and that
such clients do not deserve defense.137

Although the communications between Stewart and her client were
ongoing before September 11, 2001, she was indicted in April, 2002.
As Stewart noted at the Socialist Scholars Conference in New York:
“Usually if one breaks a Bureau of Prisons . . . edict, one is told one
can’t visit the prison again, or one gets some sort of administrative
slap on the wrist of some kind. One does not usually get indicted for
aiding a terrorist organization.”138
The government’s monitoring of Lynne Stewart’s conversations
with her client, communications which should have been protected,
poses a threat to the vitality of the attorney-client privilege and the
principles that undergird it. Her indictment will, and in all likelihood
was designed to, deter lawyers from representing unpopular clients,
which imperils the very fabric of our constitutional system of criminal
justice.
CONCLUSION
Whether the rationale for the attorney-client privilege rests upon
professional ethics, the right to privacy or the need to encourage
clients to confide fully in their attorneys, the privilege is a crucial
fixture of the American criminal justice system. Indeed, the Supreme
Court recently ruled that the attorney-client privilege is so strong, it
survives the death of the client.139 Even a client who thinks she is
136. See Jordan Elgrably, The Government’s Attack on Attorney-Client Privilege,
Criminal Defense Weekly, Sept. 15-30, 2002.
137. Heidi Boghosian, Taint Teams and Firewalls: Thin Armor for Attorney-Client
Privilege, 1 Cardozo Pub. L., Pol. & Ethics J. (forthcoming 2003).
138. Civil Liberties After September 11: A Panel at the Socialist Scholars Conference
2002, transcript published by National Lawyers Guild, 2002 (on file with author); see
www.nlg.org.
139. Swidler & Berlin v. United States, 524 U.S. 399, 410 (1998).
Knowing that communications will remain confidential even after death
encourages the client to communicate fully and frankly with counsel. While
the fear of disclosure, and the consequent withholding of information from

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guilty may have a legal defense, which becomes apparent only after
full and frank disclosure of the facts to her attorney. The societal
policy promoting the settlement of cases will be furthered by
protecting the confidentiality of attorney-client communications.
Moreover, weakening or abolishing the privilege would encourage
lawyers to lie to protect their clients or risk contempt for a failure to
betray their confidences.
Attorney General John Ashcroft’s consistent pattern of
emasculating civil liberties in the period since September 11, 2001, is
disturbing and dangerous to a democracy. His amended Bureau of
Prisons regulation provides no judicial protection for privileged
communications, and will fatally infect the attorney-client
relationship. Ashcroft’s security concerns are adequately addressed
by FISA and the crime-fraud exception to the privilege, which must
be ruled on by a judge.
Likewise, Ashcroft’s indictment of Lynne Stewart, based upon her
alleged violation of special administrative measures she was forced to
sign in order to communicate with her client, will have a chilling effect
on attorneys who may otherwise represent people facing political
crimes in this emotionally-charged historical period.
In the words of Nancy Chang: “The issuance of the interim rule,
combined with the cautionary tale to be found in the prosecution of
Lynne Stewart, sends the clear message that attorneys who represent
individuals charged with terrorist crimes now run the risk of landing in
jail alongside their clients and having their client files seized by FBI
agents.”140
It is essential that people feel safe and secure in these perilous
times. But, as Supreme Court Justice Sandra Day O’Connor wrote in
Vernonia v. Acton: “It cannot be too often stated that the greatest
threats to our constitutional freedoms come in times of crisis.”141 The
confidential relationship between attorney and client sits at the heart
of our criminal justice system. It must be zealously guarded or we will
find ourselves in the midst of a police state.

counsel, may be reduced if disclosure is limited to posthumous disclosure in
a criminal context, it seems unreasonable to assume that it vanishes
altogether.
Id. at 407.
140. Chang, supra note 61, at 91.
141. Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 686 (1995) (O’Connor, J.,
dissenting).

 

 

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