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The American Bar Association: Since NSA Is Committed to the Rule of Law, It MUST Respect Attorney-Client Privilege

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It has taken the American Bar Association almost a week to respond to the reports that Mayer Brown’s communications with the government of Indonesia got collected by Australia’s SIGINT service.

In a rather stilted letter, it suggests that if the NSA is an agency that respects the rule of law than surely it must respect Attorney-Client privilege.

While we realize that, under U.S. law, NSA is prohibited from conducting surveillance against American citizens or U.S. based law firms or other organizations without a warrant, it is our understanding that NSA may be authorized, under certain circumstances, to intercept the communications of U.S. citizens and organizations if they are in contact with foreign intelligence targets abroad, subject to specific minimization rules designed to protect their privacy. We were encouraged by recent NSA statements indicating that as a general matter, the agency’s Office of General Counsel typically is consulted when issues of potential attorney – client privilege a rise and that it often recommends that certain steps be taken to protect the privileged information. Having you further clarify the principles and policies in this area would be extremely helpful to the legal community.

The ABA understands the critical role that NSA plays in gathering intelligence information and protecting our national security, and we acknowledge that during the course of these activities, it is inevitable that certain communications between U.S. law firms and their clients may be collected or otherwise obtained by the agency. However, irrespective of the accuracy of the recent press reports, we would like to work with NSA on this issue and urge the agency not to actively seek confidential communications between U.S. law firms and their clients. In addition , if NSA obtains such confidential information inadvertently — or such information is obtained by foreign intelligence services or others and then shared with NSA — we would expect NSA to respect the privilege and take all appropriate steps to ensure that any such privileged information is not further disseminated to other agencies or any other third parties.

We know that NSA, as a federal agency committed to the rule of law, recognizes the attorney – client privilege, and thus the agency should act in a manner consistent with the principles underlying the privilege. Therefore, we respectfully request that you clarify and explain NSA’s current policies and practices that are designed to protect the attorney – client privileged status of information that it collects or receives, and whether these policies and practices were followed with respect to the alleged interception of privileged communications between the U.S. law firm and its overseas client referenced above. [my emphasis]

One example of the stilted form of the letter is the way in which this organization of 400,000 lawyers could so badly overstate the protections NSA Vanee Vines described in the report.

An N.S.A. spokeswoman said the agency’s Office of the General Counsel was consulted when issues of potential attorney-client privilege arose and could recommend steps to protect such information.

“Such steps could include requesting that collection or reporting by a foreign partner be limited, that intelligence reports be written so as to limit the inclusion of privileged material and to exclude U.S. identities, and that dissemination of such reports be limited and subject to appropriate warnings or restrictions on their use,” said Vanee M. Vines, the spokeswoman.

Vines didn’t say NSA’s General Counsel “often recommends” additional minimization for attorney-client communications; she said only that it could.

Which leaves the nation’s lawyers essentially asking, pretty please, would the NSA not do what its own minimization procedures — and the recent history of several lawyers representing alleged terrorists — clearly show it is permitted to do, which is spy on Attorney-Client communications (targeted, of course, at the alleged terrorist).

Anyone surprised that it took allegations that a big corporate firm — and not just defense attorneys — got sucked into the dragnet, before ABA wrote a letter?

The NSA May Not “Target” Lawyers, But It Does “Spy” on Them

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Congratulations to Ben Wittes who, with this post, demonstrates how the NSA can “spy” on Americans without “targeting” them.

His piece consists of several steps. First, Wittes goes to great effort to show that Laura Poitras and James Risen have not shown that the American law firm representing the Indonesian government, Mayer Brown, was “targeted” (though he seems to think that means they weren’t spied on).

For starters, it is important to emphasize that the Times story does not involve NSA spying. It doesn’t involve any remotely-plausible suggestion of illegality. It doesn’t involve any targeting of Americans. And it doesn’t involve any targeting of lawyers either.

The facts the story reports are these:

  • The surveillance in question was conducted by the Australian Signals Directorate (ASD), not NSA.
  • The surveillance targeted Indonesian government officials engaged in trade talks with the United States.
  • The surveillance apparently took place overseas. (There is no suggestion in the story that the surveillance took place inside the United States.)

In other words, a foreign intelligence service was conducting surveillance against another foreign government, which was in communication with a U.S. law firm. [my emphasis]

This is a flimsy use of NSA’s own euphemism, “targeting,” given that NYT never uses the word in the context of the law firm (they do use it to discuss the law and make it clear ASD discovered they were spying on an American who was working for the USG). The verbs they use include “entangled,” “caught up,” “monitored,” “ensnared,” and “compromised.” All verbs that describe what happens when someone talks to a targeted entity.

From there, Wittes takes a hypothetical quote offered by the NSA spokesperson, explaining that NSA sometimes does ask Five Eyes partners to take special precautions, to suggest the NSA did ask Australia’s ASD to protect the US lawyers involved.

An N.S.A. spokeswoman said the agency’s Office of the General Counsel was consulted when issues of potential attorney-client privilege arose and could recommend steps to protect such information.

“Such steps could include requesting that collection or reporting by a foreign partner be limited, that intelligence reports be written so as to limit the inclusion of privileged material and to exclude U.S. identities, and that dissemination of such reports be limited and subject to appropriate warnings or restrictions on their use,” said Vanee M. Vines, the spokeswoman.

But doesn’t quote the bit that makes it clear NSA would not — and was not — commenting on this case.

The N.S.A. declined to answer questions about the reported surveillance, including whether information involving the American law firm was shared with United States trade officials or negotiators.

Then Wittes shows the ambiguity about what happened when the ASD told the US an American law firm had gotten caught in its surveillance, quoting from the text.

Here’s the direct quote from the document in question.

(TS//SI//REL) SUSLOC Facilitates Sensitive DSD Reporting on Trade Talks: According to SIGINT information obtained by DSD, the Indonesian Government has employed a US law firm to represent its interests in trade talks with the US. On DSD’s behalf, SUSLOC sought NSA OGC guidance regarding continued reporting on the Indonesian government communications, taking into account that information covered by attorney-client privilege may be included. OGC provided clear guidance and DSD has been able to continue to cover the talks, providing highly useful intelligence for interested US customers.

Now, I agree this passage is not crystal clear (though it is less ambiguous than the text itself). What is clear is DSD (the name of which has subsequently been changed to ASD) continued spying on the Indonesian government — and sharing that spying with US “customers” — after SUSLOC consulted (on its behalf) with NSA’s lawyers.

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