The United States can maintain the freedoms that are the defining characteristics of American life while ensuring the safety of its citizens, American Bar Association President Robert E. Hirshon told delegates at the Ensuring Homeland Security General Session during the Congress of Cities in Atlanta.
Hirshon said Bush Administration proposals to eavesdrop on traditionally privileged attorney-client conversations and prosecute suspected terrorists in military tribunals threaten due process rights.
While it has become commonplace to say that everything has changed since the September 11 terrorist attacks, he said, America's top law enforcers should have more faith in our established system of justice, and the Constitution and Bill of Rights must guide national security prosecutions.
Hirshon also encouraged local officials to sponsor public dialogues in their communities as part of an ABA initiative to address the new challenges to the nation's legal system.
"Somehow an important point has been lost in the rancorous discussion that [administration] comments and proposals have produced: the due process rights our Founding Fathers guaranteed -- the due process rights that so many brave men and women have died to protect -- the due process rights which are the source of liberty and stand as a beacon for the rest of the world," he said.
Criminal defendants are guaranteed the assistance of counsel under the Sixth Amendment, but such counsel is only effective if clients can communicate privately with their lawyers.
Hirshon called Justice Department plans to monitor conversations between lawyers and clients who have not been charged with any crime -- on no grounds other than reasonable suspicion -- an extraordinary step. DOJ can obtain judicial approval to breach the attorney-client privilege if it can show probable cause to believe that an attorney and/or detainee plans to discuss terrorist acts or engage in a conspiracy to commit terrorism.
"The manner in which this and other legal responses to the current terrorist threat are being handled creates an unnecessary choice: constitutional rights or national safety and security," Hirshon said.
"This is a false choice which confuses and divides us. And in the end, this stark dichotomy, rather than inhibiting the conduct of alleged terrorists, may have a far more damaging and lasting result of denying the Constitutional right to effective counsel of several hundred detainees who are not terrorists, many of whom may be innocent of any wrongdoing."
Hirshon said the president's military order permitting secret military tribunals, where obtaining convictions will be far easier, needs to be carefully considered.
"But of course, trials are about more than reaching a result; they are about reaching justice. Equally as important, a free and open judicial system is what our country is all about. The Taliban established Star Chambers, they held …