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Justice to monitor some attorney-client communications

Limited to federal detainees suspected of plotting terror

WASHINGTON (CNN) -- As part of its broad investigation into terrorism, the Department of Justice has decided to monitor communications between some federal detainees and their attorneys.

VIDEO A new directive gives the government the right to eavesdrop on attorney-client conversations. CNN's Susan Candiotti reports (November 9) Play video (QuickTime, Real or Windows Media)   RESOURCES Proposed rule  on monitoring attorney-client communication (pdf format)

That move -- which critics say is at odds with the long-recognized attorney-client privilege -- is necessary to help "prevent further terrorist acts," the department said in a statement released Friday.

The statement stressed there are restrictions on the monitoring of such communications, which includes phone calls and mail. Among them are that the inmates being held must be told of the monitoring, that the monitoring team cannot have a connection to any "ongoing prosecution" and that the monitoring must be limited to inmates subject to a "special administrative measure."

"In order to be subject to a special administrative measure the attorney general has to have a certification from the head of a law enforcement or intelligence agency that reasonable suspicion exists to believe that a particular inmate may use communication with attorneys or their agents to further or facilitate acts of terrorism," the statement said.

The Justice Department said the attorney-client privilege is limited in such monitoring cases.

"No information that is protected by attorney-client privilege may be used for prosecution," the statement said. "There is not protection however, for communications related to the client's ongoing or contemplated illegal acts."

The Justice Department said less than one-tenth of 1 percent of federal inmates are subject to the provision that allows such monitoring. It pointed out most inmates subject to special administrative measure have no relation to the terrorism investigation, spawned by the deadly September 11 hijackings and attacks.

"The vast majority of inmates currently under special administrative measure were taken into custody prior to September 11, 2001," the statement said.

More than 1,000 people have been detained in connection with the terrorism investigation.

The department described the move as an expansion of an existing regulation. Such monitoring, the statement said, has been allowed in the past through court order.