Audio of Attorney-Detainee Interviews Called Illegal

By Dan Eggen
Washington Post Staff Writer
Saturday, December 20, 2003; Page A02

Employees at a federal detention center clearly violated prison rules and federal law by recording the private conversations of attorneys and their clients, who had been arrested as part of an immigration dragnet in the weeks after the Sept. 11, 2001, attacks, according to legal experts and a government investigation.

Many defense attorneys and civil liberties advocates also said yesterday that the recordings appeared to be part of a larger effort by the Justice Department to limit or even eliminate the ability of lawyers to adequately defend foreign nationals with alleged connections to terrorism investigations.

"The Justice Department has had a very conscious policy since 9/11 of denying access to lawyers and, when they allow access, undercutting the detainees' right to counsel," said Anthony D. Romero, executive director of the American Civil Liberties Union. "It has been a clear and distinct policy of trying to limit attorneys at every turn."

A report released Thursday by Inspector General Glenn A. Fine of the Justice Department found that on more than 40 occasions, guards and other employees at the federal Metropolitan Detention Center (MDC) in Brooklyn, N.Y., intentionally made videotapes of attorney-client meetings that included prohibited audio recordings.

The report also found that as many as 20 guards at the MDC physically and verbally abused post-Sept. 11 detainees, who were being held on immigration charges while authorities sought to determine whether they were connected to terrorism; none was ever charged with a terrorist crime. Many of the incidents of abuse were confirmed through videotapes discovered by investigators that prison officials had previously claimed had been destroyed.

On some of the tapes reviewed by Fine's investigators, conversations between detainees and their attorneys were clearly audible, and Fine said the audio recordings were purposely made by setting up cameras on tripods outside attorney visiting rooms. Some detainees were told to stop speaking Arabic or to speak English because they were being taped, and officers frequently lingered outside to eavesdrop on the conversations.

The audio recordings of attorney conversations "violated the law and interfered with the detainees' effective access to legal counsel," the report said. Many legal experts also said the tapes constitute a clear breach of centuries-old laws and regulations that treat attorney-client conversations as sacrosanct except in limited circumstances.

"While jails are notoriously not private, there is usually an obligation to ensure that those meetings are held in an environment that is confidential," said Thomas D. Morgan, a law professor at George Washington University. "It's been a long-standing position that communication between an attorney and their client is private and [disclosure] cannot even be compelled by a court."

One exception to this general prohibition was implemented in October 2001 by Attorney General John D. Ashcroft, who issued a directive permitting the monitoring of attorney-inmate meetings in the case of a threat to national security. Such monitoring requires the approval of the attorney general and notice to the inmate and the inmate's lawyer.

But Fine's report notes that, according to attorneys for the federal prison system, that authority was never used at the Brooklyn facility. In addition, a December 2001 memo to wardens of federal prisons in the Northeast region said that "visits from attorneys may . . . be visually recorded, but not voice recorded," according to the inspector general's report.

Robert S. Litt, a Justice Department official in the Clinton administration, said: "The fact that they could have done this through these administrative procedures, and didn't, seems to take away any argument that there was cause for this."

"It's clearly improper, and I doubt that anyone at the Department of Justice would contend it wasn't," Litt said. "But I also assume they would say that since these tapes were not used in any way, there is no real harm."

The Bureau of Prisons has referred all questions about the report to the Justice Department, which has said that all the allegations are under review by prosecutors for possible criminal charges.

Whether such recordings are unconstitutional is a matter of legal debate, experts said. Many defense attorneys argue that breaching the privilege violates the constitutional right to effective counsel and against self-incrimination, but the courts have yet to settle the matter definitively, attorneys said.

"The argument is that you can't have an attorney-client relationship if you have to say, 'Tell me whatever you want but understand that you're being recorded,' " said George Washington University law professor Jonathan Turley. "It produces a chilling effect."

Thursday's findings were a follow-up to a June report by Fine focused on 762 foreign nationals who were detained on immigration violations in connection with the Sept. 11 investigation, including 84 held at the MDC. The earlier report found "a pattern of physical and verbal abuse" at the Brooklyn facility and said detainees throughout the system faced delays and roadblocks in attempting to get attorneys or find out information about their cases.

An Ashcroft memorandum six days after the attacks declared that "federal law enforcement agencies and the United States Attorneys' Offices will use every available law enforcement tool to incapacitate" individuals suspected of connections to terrorist groups.

The Justice Department implemented a "no bond" policy for all the detainees -- despite questions about the legality of such a move -- and immigration authorities established a "communications blackout" that severely limited detainees' ability to contact relatives or their attorneys, the June report said.