2001-11-11 - 7:57 a.m.
I have now been declared an enemy of the people. I used to be an officer of the court, however reluctantly that position was recognized, but Iíve been demoted. Oh, Ashcroft didnít come right out and say it. He didnít have to. He and I both know what he meant. Strangely, I donít feel any different.
Prosecutors have had an odd relationship with defense attorneys probably for as long as there have been prosecutors and defense attorneys. No one likes having someone whose job is to stand between him and victory. On the other hand, where is the glory in defeating No-Name Fighter? Why do that when you might be able to defeat Muhammad Ali in his prime? The best prosecutors simply have a love-hate relationship with defense attorneys and consider them necessary to justice. Lesser prosecutors hate defense attorneys and they need them, whether to assuage their conscience or stroke their egos. They hate the defense attorneys and they hate their own need.
Larger society too has a love-hate relationship with defense attorneys. The hate part is easy to hear. You hear it every time a person asks, ďHow can you represent those people?Ē The love part is harder to see but itís there. You read it in mystery novels whose attorney heroes are defense attorneys, never prosecutors. You see it in the folk status accorded to Clarence Darrow and F. Lee Bailey. You see it in the eyes of those accused and their relatives who come looking for the best they can afford.
Ashcroft, however, has a greater reason for hating defense attorneys. Defense attorneys, not prosecutors, were and have been the warriors of the civil rights movement. Defense attorneys, not prosecutors, have stood between the governmentís desire for power and order and the American need for freedom and autonomy. Ashcroft doesnít want to win in the fight for freedom. Ashcroft wants to define freedom as the freedom to do things his wayóand heís using fear to achieve it. Why keep announcing that America is at risk but we donít know how and where unless you want to sell the notion of safety at any price?
And now, without legislation or discussion, heís moving against defense attorneys and the well-established rules about their role in the system. He has decided, single-handedly, to dispense with attorney-client privilege whenever he or other prosecutors decide, unchecked and unsupervised, that it is in their way. Never mind that attorney-client privilege is intended to create a fair system in which a person can defend himself against charges without fear of explaining the embarrassing or criminal to the only person who stands with him against the power of the state. Never mind that attorney-client privilege does not cover telling your attorney that you are about to commit a crime. Never mind that defense attorneys are officers of the court and ethically bound to report if given information about future crimes.
No, Ashcroft considers attorney-client privilege an inconvenience and he wants it gone. Heís ordered it gone. He gets to decide who might try to get his attorney to help him commit a future terrorist act and his own decision, unevaluated by others, is all he needs. He doesnít need to believe that the particular defense attorney is at all likely to do anything untoward. He doesnít need to believe that the particular defense attorney will act as anything less than the officer of the court he or she is.
Why doesnít he need to suspect anything of the particular defense attorney? The only reason he can give that makes any sense (other than a power grab) is that he believes that defense attorneys are inherently suspect. Heís conveniently latched on to the libel that equates defense attorneys with their clients. He doesnít need individualized suspicion because we are all suspicious.
And so, because I am inconvenient and because I am in the way of Ashcroft, I am now an enemy of the people. Perhaps itís not personal but I take it very personally. If Ashcroft is giving the label, Iíll wear it proudly. I think Iíll put it on a button. No, on second thought, Iíll handle this with style. Iíll be a Martha Stewart subversive and work it in cross-stitch on the lapel of a lovely blue suit. Or better yet, write it on a cakeĖin frosting, not powdered sugar.
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