Former USCG Law Specialist Is Upset Over New Rule.

Civilian and military legal experts are alarmed over a recently approved Pentagon directive that infringes upon the right of protected communications between military defense attorneys and their clients in uniform.

“The bar is very serious about keeping peoples’ secrets, and communications to and from clients,” said Eugene Fidell, a former Coast Guard Law Specialist and a Washington attorney and president of the National Institute of Military Justice.

“And in this day and age, a lot of that is done by e-mail — particularly in the military environment. And if you don’t have the kind of assurance that nobody’s peeking, that’s very disturbing," said Fidell.

According to the May 9 directive, use of a government computer grants the government permission to “inspect and seize data,” and states that “communications using, or data stored on, this [government information system] are not private, are subject to routine monitoring, interception, and search, and may be disclosed or used for any” government-authorized purpose.

The directive goes on to say that attorney, doctor and clergy communications and work product “are private and confidential,” and that use of a government computer does not constitute consent to investigative searching or monitoring of those communications for the purpose of personnel misconduct, law enforcement or counterintelligence investigations.

But the directive does allow all communications and data to be monitored “for purposes of network administration, operation, protection, or defense, or for communications security.”

Allowing any access to such communications concerns legal experts.
A retired Marine Corps judge also complained that the directive does not specifically bar the use of such information by prosecutors.

“What this is saying is that you can search and seize data on what should be a confidential defense lawyer’s computer and then use it for strategic purposes ... maybe to help the prosecution prepare for a particular witness, or a particular legal issue,” said retired Marine Corps Reserve Col. Jack Zimmerman, who practices law in Houston.

“If you’re my co-counsel, and you’re in California and I’m in Houston, and we’re discussing what our opening statement’s going to be, and the other side gets a copy of it ahead of time, what does ‘use’ mean?” he said.

In addition, Zimmerman said, all users of government computers — including military defense lawyers — must agree to a “Notice and Consent” banner upon signing on that lays out the new policy.

“You can’t check your e-mail without checking ‘OK,’” he said.
Any state bar surely would discipline a lawyer for signing a form that waives the attorney-client privilege — something only the client can do, he said.

Military lawyers, although allowed to practice in any military courtroom, must be licensed to practice law in at least one state.
“All of these lawyers who have to sign this forced consent form are putting their licenses in jeopardy,” Zimmerman said. “If a civilian lawyer agreed to this, and the client filed a grievance, that grievance would be upheld. It’s putting military lawyers between a rock and a hard place.”

The Executive Committee of the National Association of Criminal Justice Lawyers, which represents thousands of civilian and military attorneys, called upon Defense Secretary Robert Gates on May 30 to rescind the policy.
“The government has no right to intrude on confidential communications or work product without a search warrant from a neutral judicial officer, based on probable cause to believe that evidence of ongoing or future criminal conduct will be found,” said Zimmermann, one of the group’s members. “That’s the only exception to the privilege rule.”