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Attorney-client privilege is often called one of the most “ancient” principles of US law, and lawyers view it as one of the most sacred. “It’s one of the oldest principles underlying our system of justice,” says Ellen Yaroshefsky, the director of the Jacob Burns Center for Ethics in the Practice of Law at Cardozo School of Law in New York City. “Without it you can’t allow a lawyer to do their job in providing their client with adequate and serious representation.”
Alexander Abdo, a lawyer with the American Civil Liberties Union (ACLU), insisted in a telephone interview that the bond between lawyer and client had to be protected. “It really comes down to trust—clients need to trust their lawyers. If they can’t trust their lawyers, they can’t do their job,” he said.
There are exceptions to the rule. Attorney-client communications may be monitored in the case that authorities believe the attorney and client are engaging in crime or fraud. Lawyers doing dirty work for mob bosses were famously wiretapped in the 1990s. More recently, a FISA warrant was used to reveal that Lynne Stewart, a human rights lawyer, was passing messages on behalf of a client convicted of terrorism. In 2005, a court found she was doing so in violation of special administrative measures (SAMs) imposed by court order upon her client and sentenced her to twenty-eight months in prison. In 2010, an appeals court ruled that her previous sentence was too light and resentenced Stewart to another ten years.
Under a standard Title III wiretap, used in domestic cases, minimization must be used on all privileged calls—pre- and post-indictment—unless there is the suspicion of criminal activity. Non-pertinent information should also be minimized—and destroyed. But as Marjorie Cohn, a former president of the National Lawyers Guild and a professor at the Thomas Jefferson School of Law in San Diego, told me, even this stipulation is stretched by federal agencies. “As long as it’s reasonable not to minimize, they don’t have to minimize.”
That said, defenders of the policies argue that wiretaps can be an essential tool to catch terrorists. Najibullah Zazi, the man who fronted the subway-bombing plot that involved Medunjanin, was caught because his emails to handlers in Pakistan were intercepted by federal agents. Norm Abrams, an emeritus professor of law at the University of California, Los Angeles told me that it was a complicated balancing act. “I think that it’s important to give Government special tools,” he said. “But we don’t want to lose our civil liberties.”
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