WOIFM

The Few Privileged

When I first read this, I thought, "WTF?!?!?!" Then I thought about it a little more and calmed down. The Justice Department has decided to listen in on calls between those in prison and their attorneys, in order to prevent detainees from using their lawyers to further acts of terrorism. Liberals have assailed this as a violation of constitutional rights and a revocation of the attorney client privilege. The plan is neither, although it is certainly unsavory.

Lesson one: Attorney-client privilege is not a constituional right; it is a rule of evidence excluding those conversations from court. In order to apply, the attorney and the client must have a reasonable expectation that their conversation is confidential. No one can seriously tell me that anyone has a reasonable expectation of privacy on a prison phone. First of all, every other call made from a prison phone is monitored, and lawyers know that. Second, any phone which is in a place where others can hear either end of the conversation - other inmates, guards, etc. - is by its very nature not a private phone. With no reasonable expectation of privacy, no privilege attaches. Even if there were a reasonable expectation of privacy, the attorney-client privilege does not prevent other people from attempting to listen in - it merely prevents anyone from admitting the contents of the conversation into court. So, to those who say that the Justice Department has "revoked" the attorney client privilege, you're flat-out wrong.

Does this new rule implicate the constitutional right to counsel? Only if you think the constitution guarantees you the right to speak to your lawyer on the phone as opposed to in person. As long as one has the opportunity to retain a lawyer (or be represented by a public defender) and confer with them in person from time to time, the right to counsel has been fulfilled.

So... most of what you'll hear from the liberal left is simply hysteria. Sure, it may be a bad political move, but there's nothing illegal or unethical about the new rule.