Protecting Attorney-Client Privilege in the Context of U.S. National Security
0
조회
0
다운로드
0
인용
0
참고문헌
키워드
초록
In the past five years, the American Bar Association has twice had to request the U.S. government to respect attorney-client privilege. The first instance concerned the representation of detainees at Guantanamo Bay, and the second addressed the National Security Agency's mass surveillance of online communications. This article essentially asks under what legal authority the U.S. government can monitor attorney-client communications. This article first explains the basis of the attorney-client privilege in common law and the professional code of ethics regulating the legal profession. It then reviews the exceptions to this privilege, including the crime-fraud exception and the laws allowing monitoring of attorney-client communications, such as Title III of the Omnibus Crime Control and Safe Streets Act of 1968, the Foreign Intelligence Surveillance Act, and special administrative measures implemented in federal prisons. It analyzes whether legal authority exists for U.S. government surveillance of attorney-client communications relating to the representation of Guantanamo detainees and mass online surveillance. This article's purpose is to explain the legal framework for protecting or exempting attorney-client privilege from government surveillance so that it may serve as an instructive reference for Korean institutional and legal actors deliberating the balance of national security and civil liberties.
Abstract
In the past five years, the American Bar Association has twice had to request the U.S. government to respect attorney-client privilege. The first instance concerned the representation of detainees at Guantanamo Bay, and the second addressed the National Security Agency's mass surveillance of online communications. This article essentially asks under what legal authority the U.S. government can monitor attorney-client communications. This article first explains the basis of the attorney-client privilege in common law and the professional code of ethics regulating the legal profession. It then reviews the exceptions to this privilege, including the crime-fraud exception and the laws allowing monitoring of attorney-client communications, such as Title III of the Omnibus Crime Control and Safe Streets Act of 1968, the Foreign Intelligence Surveillance Act, and special administrative measures implemented in federal prisons. It analyzes whether legal authority exists for U.S. government surveillance of attorney-client communications relating to the representation of Guantanamo detainees and mass online surveillance. This article's purpose is to explain the legal framework for protecting or exempting attorney-client privilege from government surveillance so that it may serve as an instructive reference for Korean institutional and legal actors deliberating the balance of national security and civil liberties.
참고문헌 (30)
- "ABA Canons of Professional Ethics", ~ (1908)
- "ABA Model Code of Professional Responsibility", ~ (1969)
- "ABA Model Rules of Professional Conduct", ~ (1983)
- "ABA Resolution and Report 301 (Task Force on Enemy Combatants, CJS, IR&R, et c.)" (2003)[URL]
- "ABA Resolution and Report 118" (2013)[URL]
- Birckhead, Tamar R., "The Conviction of Lynne Stewart and the Uncertain Future of the Right to Defend", Am. Crim. L. Rev, 43, pp.1~ (2006)
- Cohn, Marjorie, "The Evisceration of the Attorney-Client Privilege in the Wake of September 11, 2001", Fordham L. Rev, 71, pp.1233~ (2003)
- Cover, Avidan Y., "Note, A Rule Unfit for All Seasons: Monitoring Attorney-Client Communications Violates Privilege and the Sixth Amendment", Cornell L. Rev, 87, pp.1233~ (2002)
- Denbeaux, Mark, "The Attorney-Client Relationship in Guantanamo Bay", Fordham Int'l L. J, 30, pp.491~ (2006)
- Denbeaux, Mark, "The Guantanamo Lawyers: Inside a Prison Outside the Law" (2009)
- "Order Governi ng Written Communications Management for Detainees Involved in Military Commissions" (2011)[URL]
- "Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders", Basic Principles on the Role of Lawyers, Para. 22, U.N. Doc. A, 28, pp.1990, ~
- Hazard, Geoffrey C. Jr, "An Historical Perspective on the Attorney-Client Privilege", Cal. L. Rev, 66, pp.1061~ (1978)
- Jeffrey, Sharon, "An Act of Patriotism? Infringing on the Individual's Sixth Amendment Right to Effective Counsel", Sw. U. L. Rev, 33, pp.165~ (2004)
- "Letter from Wm. T. (Bill) Robinson III, American Bar Association President, to Leon Panetta, U.S. Secretary of Defense" (2011)[URL]
- "Letter from James R. Silkenat, American Bar Association President, to Gen. Keith B. Alexander, Director, National Security Agency, and Rajesh Raj De, General Counsel, National Security Agency" (2014)[URL]
- "Letter from Gen. Keith B. Alexander, Director, National Security Agency, to James R. Silkenat, American Bar Association President" (2014)[URL]
- Liptak, Adam, "Justices Turn Back Challenge to Broader U.S. Eavesdropping", N.Y. Times, ~ (2013)
- Luban, David, "Lawfare and Legal Ethics in Guantanamo", Stan. L. Rev, 60, pp.1981~ (2008)
- "Confidentiality, Privilege: A Basic Value in Two Different Appli cations" (2007)[URL]
- "Lawyer Sues Over New Gitmo Policy Requiring Review of Attorney Mail to Detainees" (2012)[URL]
- Report: U.S. Lawyers Fear NSA Spying, "Nelson, Steven", U.S. News & World Report, ~ (2014)
- "Has the NSA Wiretapping Violated Attorney-Client Privilege?" (2014)[URL]
- "Listening In, Foreign Policy" (2013)[URL]
- Podgor, Ellen S., "Government Surveillance of Attorney-Client Communications: Invoked in the Name of Fighting Terrorism", Geo. J. Legal Ethics, 17, pp.145~ (2003)
- James Risen, "Spying by NSA Ally Entangled US Law Firm", N. Y. Times, ~ (2014)
- "The Attorney-Client Privilege and the Amended Federal Discovery Rules in Law Practice Today" (2006)[URL]
- Rosenberg, Carol, "Secret program at secret Guantanamo prison hears everything", Miami Herald, ~ (2015)
- "How US Government Surveillance Threatens Attorney-Client Privilege" (2014)[URL]
- "Statement of Robert A. Hirshon, President, American Bar Association" (2001)[URL]