Let's imagine that you are a businessman, an honest businessman accused of some illegal act. The FBI is investigating you and the Justice Department assigns an attorney to handle your case in court.
You hire an attorney to defend you. Your conversations with that attorney, the content of your conversations with that attorney are "privileged" which means that the Justice Department prosecutor cannot successfully require you or your attorney to divulge the contents of your conversations with your attorney in court.
Your attorney is supposed to gather evidence to support your defense. For example, he is entitled to seek out and talk to witnesses who will testify on your behalf. Your attorney also may talk to all kinds of people, experts, for example, experts on accounting or ballistics or whatever evidence may be relevant to your case. And your attorney may be seeking or talking to witnesses or others who actually witnessed whatever action(s) is the subject of your case.
Now let's imagine that the FBI can reach into a file that contains the records of all of your attorney's telephone calls. The date, time and length of the call are all available to the FBI. Normally, if an attorney wants a witness to testify, the attorney provides the information on the witness to the prosecutor (or opposing party in a civil case). But your attorney is not required to give all the numbers and contact information to the prosecutor that concern people whom he does not plan to call to testify at trial. Yet those individuals may be central sources of information that your attorney uses when he interviews, let's say the prosecution witnesses.
Each case might be different. But imagine how cautious an attorney representing criminals must be now that he knows that all of his call records can be pored through by the prosecution and FBI in your case. That really makes your defense a little harder, doesn't it?
Could this surveillance discourage your attorney from calling a source that he might otherwise call? Could it thwart the process of justice?
Do you think Obama cares?
Many will say that my hypothetical is far-fetched. And I would have to agree that most cases are much simpler than the one I describe. But then who would ever have believed that the government would want to acquire the lists of all the people we call. That's as far-fetched as it gives.
A conspiracy theory? Maybe. Maybe not. But these phone records could make the work of the prosecutors a lot easier -- a lot easier than the work of the defense attorneys. And where is justice? Where is the right to an attorney, the right to a defense? The right to confidentiality in your relationship with your attorney?
Very troubling.
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