"This standard constitutes a low threshold for allowing the government to interfere with an individual''s Constitutional right to counsel," said Senators Collins and Specter.
The privacy of attorney-client communications is an integral component of the effective representation necessary for a fair trial consistent with the United States Constitution. The rational for the attorney-client privilege is that a lawyer can provide professional legal advice only when all relevant information is conveyed by the client to the attorney. If a client is concerned that what the attorney learns can someday be used adversely, the inevitable result will be that some clients will be unwilling to provide all the information necessary for effective, meaningful representation. Ultimately, justice is not served if citizens are fearful about seeking legal advice.
The monitoring of such conversations diminishes these detainees'' attorney-client privilege (the scope of the regulation is so broad that even those not charged with any crime are subject to its provisions). Although the regulations concern certain fire walls that attempt to ensure that only non-privileged information is ever disclosed, we believe the monitoring regime set forth in the regulations could have a chilling effect and diminish the effectiveness of these detainees'' representation.
"The legal principles involved – the attorney-client privilege and the right to counsel – are among the most important in American jurisprudence," the Senators said. "While we recognize the need for enhanced law enforcement measures in these times, we have faith in our Constitution that the necessary tools can be found clearly within its parameters."