One of the many components of the Patriot Act, passed by Congress after the 9/11 attacks, includes amendments to attorney/client privilege. Prior to the Patriot Act, conversations between attorneys and their clients were strictly confidential. Attorney/client privilege dictates what is and what is not admissible in court. After the Patriot Act was passed, however, the Department of Justice is allowed to listen in on conversations between clients and their attorneys when there is “reasonable suspicion” that the client may reveal terrorist threats to the nation. Should this very old and important civil right be compromised on the chance that something heard might make the nation safer?
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A strong case can be made for the Patriot Act being unconstitutional to begin with. Therefore the Bill of Rights and other liberties it impinges upon are also unconstitutional. In particular, the attorney-client privilege is being unconstitutionally impinged upon by Department of Justice wire-tapping for "reasonable suspicion." This is especially true given that, as tamarakh points out, mandatory reporting of impending criminal or fraudulent activity is already embedded within the definition of attorney-client privilege. In other words, there is no need to violate that liberty because the attorney is already bound to report any "suspicious" disclosures of anticipated crimes, and terrorism certainly falls within that stricture.
It seems to me that none of our rights are intact in the Patriot Act. Since we don't have the right to even know we are investigated, I doubt attorney-client privilege would stand up. Under the patriot act, you can be searched with a secret warrant issued by a secret court. Your attorney will be as clueless as you are.
To me the key to this argument is "reasonable suspicion". In principle, I agree with the idea that if a person is a threat to the security of our nation then all means necessary should be enacted to ensure our domestic safety. The sticking point is "reasonable".
Many times throughout history "reasonable" suspicion was used to curtail the freedoms of innocent people. During the time before the American Revolution, the British used writs of assistance in an effort to stop smuggling. These were unspecific, undated documents that turned into de facto blank search warrants. The abuses of British customs officials through these writs laid the foundation for the inclusion of the fourth amendment to the US Constitution.
I fear the suspension of attorney/client privilege could turn into the same type of situation without the proper safeguards. In the end, I would be in favor of the loss of attorney/client privilege in times of extreme threat to national security. I do believe that proper safeguards and procedures would have to be put into place first to ensure that this action isn't taken lightly and that people are secure in their civil liberties.
The Bill of Rights Defense Committee has argued that many articles found in the US Patriot Act threaten civil liberties protected by the Bill of Rights. The committee argues that allowing federal agents to breach attorney-client privileges by eavesdropping on attorney-client conversations when clients are in federal custody is one of the articles that breaches civil liberties. By Constitution, we are granted the right to legal representation, to a fair trial, and are innocent until proved guilty. Eavesdropping can allow federal agents to twist any piece of information that they wish to serve their needs thereby breaching mankind's civil right to a fair trial.
Furthermore,according to attorney-client privilege, it is already unlawful for a lawyer to retain any information a client gives about a crime or fraud that is about to be committed; therefore, breaching attorney-client privilege certainly cannot assist in preventing future acts of terrorism thereby making the nation safer because lawyers are already by law supposed to report such information anyway.
I agree with the Bill of Rights Defense Committee and argue that many articles in the US Patriot Act allow for the government to threaten civil liberties.
Right after 9/11/01 I probably would have supported this part of the Patriot Act. Now I'm against it. I'd prefer to keep our important freedoms intact. However, I'm pragmatic enough to consider changing my mind if conditions changed significantly.
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