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Prosecuting the War on Terrorism: The Government's Position on Attorney-Client Monitoring, Detainees, and Military Tribunals

NCJ Number
Criminal Justice Volume: 17 Issue: 2 Dated: Summer 2002 Pages: 30-35,51
John P. Elwood
Date Published
7 pages
As one of the lawyers who helped draft criminal provisions of the USA PATRIOT Act, the author reviews three of the most controversial elements of the law, explaining why they are needed.
In October 2001, the U.S. Department of Justice amended existing 1996 Bureau of Prisons regulations that permit administrators to monitor the communications of particularly dangerous inmates under certain circumstances. This amendment permits the monitoring of attorney-client communications for this very small group of inmates only if the attorney general makes an additional finding that reasonable suspicion exists that a particular detainee may use communications with attorneys to further or facilitate acts of terrorism. In the rare cases in which monitoring occurs, it should not chill legitimate communication about the client's case. Given the protections that are in place, detainees should understand that they are free to discuss legitimately privileged matters with their counsel without fear of disclosure. Another subject of debate pertains to individuals detained as a result of the ongoing terrorism investigation. The controversy stems, in large measure, from descriptions in popular accounts that erroneously suggest far greater numbers of detainees are being held for far lengthier periods than is actually the case. Every detention that is part of an investigation has been, and continues to be, fully consistent with established constitutional and statutory authority. Further, the actual number of detainees is far lower than is routinely reported. Also, each detainee has a right to counsel. On November 13, 2001, President Bush signed an executive order that authorizes the use of military commissions to try foreign terrorists for war crimes. The use of military commissions is not only legally proper, there are sound policy reasons for the use of such commissions in individual cases. Proceedings before military commissions may be required to safeguard classified information at the trial of al-Qaeda members. Also, military commissions are equipped to deal with the significant security concerns that can arise from a trial of a terrorist. Further, given the nature of and participants in the September 11th attacks, efforts to bring participants to justice constitute an act of self-defense against an external threat to the Nation's collective safety. It is appropriate and reasonable to try war crimes of this sort before military commissions.