WHEREAS the Executive Committee of the National Association of Criminal Defense Lawyers is aware that on May 9, 2008 the Department of Defense promulgated a directive, titled, "Policy on Use of Department of Defense (DoD) Information Systems - Standard Consent Banner and User Agreement," andWe have previously discussed this issue, including here, here, here, and (somewhat tangentially) here.
WHEREAS this directive requires military defense counsel, as a precondition to being able to log onto a government-provided computer, to consent to the interception, monitoring, and searching by law enforcement governmental authorities of attorney-client privileged information stored on government-provided computers, and
WHEREAS prohibiting the "use" of such intercepted privileged material does not cure the forced violation of the attorney-client privilege and attorney work-product privilege by the government’s improper interception, monitoring, or searching, and
WHEREAS this directive strikes at the core of the American adversary system of criminal justice by hampering and chilling military defense counsel in the effective performance of their duty, and denies their clients the right to effective assistance of counsel, and
WHEREAS this directive destroys any confidence among all of our military personnel accused of crime that their communications with counsel and the work product of counsel are protected from warrantless intrusion by governmental authorities, including prosecutors and law enforcement,
THEREFORE BE IT RESOLVED that the National Association of Criminal Defense Lawyers calls on the Secretary of Defense to rescind the May 9, 2008 directive and provide a revised directive policy that prohibits the warrantless monitoring or searching of all government-provided computers of military defense counsel, and prohibits the interception and seizure of all attorney-client privileged information, as well as the use of such information, in the military justice system or for any adverse administrative or personnel actions.
Saturday, May 31, 2008
NIMJ's web site reports that the "Executive Committee of the National Association of Criminal Defense Lawyers has [unanimously] adopted a resolution calling on the Secretary of Defense to rescind the Department's May 9, 2008 policy on use of DoD information systems (Standard Consent Banner and User Agreement)." The full report and resolution are available on NIMJ's web site here. Here's the resolution in full:
Posted by Dwight Sullivan at 10:04 PM