Abortion arguments classically play off the "rights" of the mother against the "rights" of the unborn child, when the real issue is who decides mediation of the values involved, the mother or a judge.
In the case of attorney-client privilege, we are in the realm of complete proceduralism. As long as the information was never misused by prosecutors, there would be little real harm to complain of from violating such a "right." However, it is precisely because we don't trust prosecutors to act fairly that we take procedural control over deciding whether to breach that "right" from them.
Increasingly, the attorney of a client has been given the procedural ability to violate the right of his or her client and in some states has been mandated to do so in certain cases (such as the imminent harm of another). This is another way of saying that society thinks the client's lawyer is probably more likely to balance the needs of the client versus the social needs of society in violating that attorney-client privilege.
The recent directive is trying to set up an alterantive group of procedural decision-makers, not prosecutors but a separate branch of foreign-policy oriented actors who would decide what information could be publicly revealed and what could not. If you feel that the CIA et al are inherently trustworthy, such a scheme could be a valid alternative approach. I don't think they are likely to be trustworthy, but then neither are attorneys in general.
-- Nathan Newman
----- Original Message ----- From: "Ian Murray" <seamus2001 at home.com> To: "Lbo-Talk at Lists. Panix. Com" <lbo-talk at lists.panix.com> Sent: Monday, November 12, 2001 4:09 PM Subject: are violations of rights ever right?
[Here's the link for the Federal Register's announcement on attorney-client privileges; a presumptive example of violation minimization, an explication of which can be found in "Ethics for Adversaries" by Arthur Applbaum ]
< http://news.findlaw.com/cnn/docs/doj/dojbop66fr55062.pdf >