The Attorney-Client Privilege: Repairing the Damage July 29, 2008

Host: The Heritage Foundation. The centuries-old protections of the attorney-client privilege are at the heart of any citizen’s relationship with his lawyer and, thus, at the heart of the Sixth Amendment right to counsel. Attorney General Mukasey has acknowledged, “Absent privilege, the right to counsel is nearly meaningless.” Nonetheless, for almost a decade the Department of Justice has been issuing repeated policies undermining the privilege and the attorney-client relationship. Ostensibly to “fix” these problems, the Justice Department now proposes its fifth major policy in less than ten years. But things have gone too far for an internal solution. The Department’s decade of varying coercive policies and practices has spawned similar policies throughout the federal government. Thus, even if the Department’s next policy were to hold privilege protections sacrosanct, its reform would do nothing to the policies of other federal agencies–or to bind the Department’s policies during the next presidential administration. A lasting solution is needed. Legislation can fix the damage that the Department has caused to these essential protections. Senator Arlen Specter’s Attorney-Client Privilege Protection Act passed the House unanimously with broad bipartisan support but has not moved in the Senate Judiciary Committee. Conservatives and liberals alike should consider the intrusion of government into yet another bedrock liberty and whether legislation is now necessary.

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