Under the Constitution in IL, NH or MA, no way this could be done. I can't speak for other states. The only way it might work was if it was very narrowly drawn to appply only to terrorism, clearly defined, and in such a way that the gov't had a high burden of proof in invoking the right to eavesdrop.... but that would kind of defeat the purpose......
Notch up one more area of agreement between us. Though looking at the summary, it's welllll beyond my skill Constitutional law. On the surface the summary of the rule is plausible, but the rule can so easily be abused it's disconcerting.
Below are, I think, the most relevent words from the summary in the Federal Registry.
The attorney-client privilege protects confidential communications regarding legal matters, but the law is clear that there is no protection for communications that are in furtherance of the client's ongoing or contemplated illegal acts. Clark v. United States, 289 U.S. 1, 15 (1933) (such a client ``will have no help from the law''); United
States v. Gordon-Nikkar, 518 F. 2d 972, 975 (5th Cir. 1975) (``it is beyond dispute that the attorney-client privilege does not extend to communications regarding an intended crime''). The crime/fraud exception to the attorney-client privilege applies even if the attorney is unaware that his professional service is being sought in furtherance
of an improper purpose, United States v. Soudan, 812 F.2d 920, 927 (5th Cir. 1986), and the attorney takes no action to assist the client, In re Grand Jury Proceedings, 87 F. 3d 377, 382 (9th Cir. 1996).
This rule provides specific authority for the monitoring of communications between an inmate and his or her attorneys or their agents, where there has been a specific determination that such actions are reasonably necessary in order to deter future acts of violence or
terrorism, and upon a specific notification to the inmate and the attorneys involved. The rule provides for (1) protection of the inmate's right to counsel; (2) the use of a special ``privilege team'' to contemporaneously monitor an inmate's communications with counsel, pursuant to established firewall procedures, when there is a sufficient
justification of need to deter future acts of violence or terrorism; (3) a procedure for federal court approval prior to the release or dissemination of information gleaned by the privilege team while monitoring the inmate's communications with counsel; and (4) an emergency procedure for immediate dissemination of information pertaining to future acts of violence or terrorism where those acts are
determined to be imminent.
The Supreme Court has held that the presence of a government informant during conversations between a defendant and his or her attorney may, but need not, impair the defendant's Sixth Amendment right to effective assistance of counsel. See Weatherford v. Bursey,
429 U.S. 545, 552-54 (1977). When the government possesses a legitimate law enforcement interest in monitoring such conversations, cf. Massiah v. United States, 377 U.S. 201, 207 (1964), no Sixth Amendment violation occurs so long as privileged communications are protected from disclosure and no information recovered through monitoring is used
by the government in a way that deprives the defendant of a fair trial.
The procedures established in this new rule are designed to ensure that defendants' Sixth Amendment rights are scrupulously protected. The circumstances in which monitoring will be permitted are defined narrowly and in a way that reflects a very important law enforcement interest: the prevention of acts of violence or terrorism. The monitoring is not surreptitious; on the contrary, the defendant and his or her attorney are required to be given notice of the government's listening activities. The rule requires that privileged information not be retained by the government monitors and that, apart from disclosures necessary to thwart an imminent act of violence or terrorism, any disclosures to investigators or prosecutors must be approved by a federal judge.
jttmab |
