In a recent Nation article, Nicholas Niarchos tells the story of Ron Kuby, a lawyer who was representing a man charged with providing material support to the plotters of the foiled 2009 New York subway bombing. Kuby was summoned to a Joint Terrorism Task Force office in New York City and led to a conference room where, accompanied by law enforcement agents, he listened to recordings of three conversations between him and his client. Apparently, when the client called Kuby for legal advice, the government had been listening in.
Government surveillance of communications should come as no surprise at this point, but Kuby's story and the others that Niarchos touches on reveal yet another breach of law instigated by the NSA's surveillance programs-- that of attorney-client privilege. The American Bar Association writes that attorney-client privilege is "meant to ensure full and open communication, candor, and confidentiality between the lawyer and the client." Except in cases where there is reason to suspect that the attorney and client are conspiring to commit a crime or fraud, their communications are protected, even from government monitoring.
However, documents leaked to the Guardian last summer uncovered a loophole that allows the NSA to record conversations between attorneys and their clients, thus violating the legal principle of attorney-client privilege. Kuby could not confirm what legal authority permitted his conversations to be recorded, but according to Niarchos, "he explained, 'the only act that would authorize it is the act that must not be named'—FISA."
The Foreign Intelligence Surveillance Act (FISA) establishes the rules for conducting wiretaps, which the NSA must adhere to. One of the leaked documents contains guidelines for applying FISA wiretaps and includes a section on attorney-client privilege. The document states, "As soon as it becomes apparent that a communication is between a person who is known to be under criminal indictment in the United States and an attorney who represents that individual.... monitoring of that communication will cease." This definition contains the strange caveat that communication between a client and attorney is only protected if the client has been indicted for a crime. That exception means that a client's conversations with an attorney before indictment is fair game for a wiretap.
Although attorney-client conversations cannot be used as evidence in a criminal case, the power to record or identify calls between a client and attorney can still be damaging. Kuby told Niarchos that he had been planning a press conference with his client on a Sunday and that due to the wiretap on their conversations, "The FBI chose to preëmpt that conference by arresting him on Saturday evening.”
This story and the others detailed by Niarchos showing the NSA's intrusion on the communications of attorneys and their clients pertain to high level criminal and terrorist cases, not exactly within the everyday domain of most Americans. But Americans should be concerned about this violation of privacy and the ever-greater erosion of rights at the hands of the NSA and other intelligence agencies. Except in extreme situations, your communication with your lawyer should be private so that you have the full ability to exercise your constitutional rights. Robert Gottleib, another lawyer whose conversations with a client had been wiretapped, reminds us
Everybody is harmed when government ignores law because that weakens the foundation of law that ultimately must and should be applied fairly and strictly in every situation to every individual. So if you are willing to chip away and to weaken the law when it suits your governmental purpose, then everyone in the future is victimized by government violations of law.
So don't let the government violate the law anymore. Join BORDC and a coalition of organizations for The Day We Fight Back on February 11. Use this day to say no to illegal mass surveillance and tell your legislators that we want our constitutional rights, whether we choose to exercise them online or in our private conversations.
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