How Is Rick Renzi Like a Gitmo Detainee?

A tiny bit of me (okay, miniscule) wishes that Rick Renzi were sticking around as a Congressman. That’s because, now that the government has tried to use wiretaps of conversations between him and his attorneys in his trial, Renzi might be motivated to champion legislation reaffirming the importance of attorney-client privilege.

Attorneys for Rep. Rick Renzi (R-Ariz.), who has been indicted on 35 federal corruption charges, filed a motion today asking a federal judge to exclude from trial a series of "at least 50" cell phone calls by Renzi that were recorded by FBI agents.

Renzi’s legal teams says that the calls should be privileged under attorney-client privilege, as well as the Speech or Debate Clause, a constitutional privilege that protects lawmakers and aides from legal action for legislative activities. Renzi is not raising a Speech or Debate claim on these intercepted calls yet.

"These privileged calls include conversations between Congressman Renzi and his criminal defense counsel and an attorney representing him in a Federal Election Commission (‘FEC’) proceeding. The privileged calls reflect discussions regarding legal strategy and core work product, including the direction of the investigation, witness interviews, DOJ strategy, Congressman Renzi’s recollection of relevant issues, and legal advice regarding theories of prosecution and applicable defenses," Renzi’s lawyers wrote. They are asking that the audio files and transcripts of the calls should be returned to Renzi’s control and a protective order should be granted to prevent prosecutors or anyone else from reviewing the calls.

It’s a problem that extends beyond corrupt Congressmen. Many of the lawyers defending detainees at Gitmo believe they are being wiretapped.

One lawyer for Guantánamo detainees said he replaced his office telephone in Washington because of sounds that convinced him it had been bugged. Another lawyer who represents detainees said he sometimes had other lawyers call his corporate clients to foil any government eavesdroppers.

In interviews and a court filing Tuesday, lawyers for detainees at Guantánamo said they believed government agents had monitored their conversations. The assertions are the most specific to date by Guantánamo lawyers that officials may be violating legal principles that have generally kept government agents from eavesdropping on lawyers.

“I think they are listening to my telephone calls all the time,” said John A. Chandler, a prominent lawyer in Atlanta and Army veteran who represents six Guantánamo detainees.


Justice Department officials have said in the past that they had not used their terrorist surveillance powers to single out lawyers but that telephone “calls involving such persons would not be categorically excluded.

And the lawyers representing the al-Haramain charity know their conversations with their clients were being wiretapped via the warrantless wiretap program. But they can’t tell you about it, or they’d have to kill you … or something like that.

There’s a parable here somewhere. It goes something like, "First they took attorney-client privilege away from the alleged Islamic terrorists. And then they took attorney-client privilege away from crooked Congressmen. And then they took attorney-client privilege from vegans…."

I’ve got a deal to propose. If the Administration is so anxious to do away with attorney-client privilege, then they need to give up, at the same time, executive privilege. Deal?

53 replies
  1. behindthefall says:

    How’d I get over here? Zed?

    These people are going to be bitten by their own worm. Heh.

  2. perris says:

    I’ve got a deal to propose. If the Administration is so anxious to do away with attorney-client privilege, then they need to give up, at the same time, executive privilege. Deal?

    no deal

    they don’t have the executive privilge they claim congress simply let’s them get away with claiming it

    their power eminates from congress not from themselves and congress will let them continue breaking the law no matter what they gave up

    so no deal

  3. phred says:

    Nope EW, executive privilege is not enough. Since the government is now in the business of scooping up every last bit of personal information about us (hence we have no secrets from them), then the only fair thing is to turn the tables and abolish all forms of classification. No more secrets, all the way around. Complete total transparency. I’m sure BushCo would support that. Although, I draw the line at shower curtains, there can at times be too much transparency ; )

  4. Synoia says:

    Executive privilege needs challenging.
    Yes it would go to the supremes, but it needs limits.

    • perris says:

      the supremes couldn’t do anything about congress’s power to limit executive privilege

      his power eminates from them not from himself, they should simply say;

      “bull crap, you comply or you are gone”

  5. freepatriot says:

    I got an idea

    lets let the JURY decide

    you’re either right, or you’re guilty beyond a reasonable doubt and to a moral certainty

    works for me

    as long as we’re using Black’s Legal Dictionary to define all the words

    why do the repuglitards hate the American Justice System ???

  6. freepatriot says:

    if a jury decides that bugging a man’s attorney is a violation of the man’s civil right, then the person who bugged the conversation is guilty of violating the civil rights of a citizen of the United States

    I believe that such a charge is a felony, involving a penalty of 5 years in prision (IIRC)

    so if the administration admits to information they shouldn’t have, they should explain how they obtained the information under penalty of law for any crimes they might have committed to obtain the informantion

    how does that affect tott liability ???

    it’s how the system is supposed to work, aint it ???

  7. freepatriot says:

    the truth will set us free

    might result in a LOT of repuglitards being locked up, but We The People of the United States will be free

  8. FrankProbst says:

    Hmmm. Slightly different take on this. If he was using his personal phone to talk to his lawyers, then I agree that this falls under attorney-client privilege. On the other hand, if he was using the phones in his Congressional offices (i.e. phones that We The People are paying for) AND the FBI had valid wiretap warrant, then I think these recordings are fair game. If you want to talk to your defense lawyer, do on it on your own damn phone.

  9. Hmmm says:

    OT — Odd FAA coincidence, probably nothing, but the automated system that send pilots info on flight hazards (including but not limited to missile launches), which seems run by SAIC and EDS, has been down for at least 13 hours now, longer than ever before. And the FAA has restricted flights in the airspace around the Kennedy compound for unstated reasons.

    • bmaz says:

      Weird. I just had to take someone to the airport here, and there are police and unmarked vehicles in weird places on the perimeter, and a lot of them. I wonder if there is some real alert, you know, the kind they wouldn’t warn us about publicly. Not saying that at all, but I really was struck by what i described at Sky Harbor.

  10. JThomason says:

    But my point is that the republicans resent the financial aspects of tort liability, especially class action liability and product liability. Its the motive underlying the campaign against trial lawyers so championed by 41 and deeply instilled in Republican culture. This is why they have been so set on removing the judicial function to the executive branch. By doing this they feel like they can avoid the regulatory features of law. And you are right FP at this stage it exceeds the mere resentment of the financial consequences of tort law, but I do think its tort law from which the resentment initially stems.

    And I say all this recognizing that it probably is an oversimplification but OSHA and environmental regulation which also place additional cost on business arise of the recognition of harm which it the wrong against which tort law initially arose to protect against.

    Your question was probably rhetorical, still the republicans resent bearing the risk of loss for harm that arises out of their business practices.

    • JohnJ says:

      Thanks! This guy single handedly knocks Yoo out of the water!

      I don’t usually read all of the comments at TPMM so I missed that one.
      Just one point from “testing”:

      Evenif (sic) FISA does not apply, Yoo fails to address the Constitution Violations or Constrain Other Programs

      Yoo’s argument has not adequately addressed the implications of his argument: Once FISA is ignored, or does not apply, or Congress did not expressly say it applied to a narrow situation — the President is only left with the Constitution which prohibits all warrantless surveillance. Yoo’s asked us to believe the law does not apply; but fails to explain why the President, as a creature of the Constitution, has any authority from the document Yoo also says does not apply.

      d’ya think we can get his tenure revoked yet for just plain incompetence? A lawyer who’s argument makes it’s own argument against itself?

      In my field, at least Rube Goldberg’s stuff accomplished what it set out to do…

      • Hmmm says:

        You’re welcome. Once past the law, I think Yoo explicitly tries to hang the whole thing on his (most likely wholly specious) Fourth Amendment interpretation, hinging on the meaning of the word “unreasonable”. However ‘testing’ knocks that one out of park as well:

        DoJ OLC Separates 4th Amendment

        Part 1 of 4th Amendment

        The problem with the 4th Amendment, in light of DOJ OLC memos, is that they look at the 4th Amendment as two separate clauses. DoJ OLC views electronic surveillance as reasonable during wartime:

        “”The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,
        Part 2 of 4th Amendment”"

        DoJ OLC argues that warrants are not always required. When they are required, the standard is probable cause:

        “”and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”"

        By splitting the 4th Amendment into two, DOJ OLC is arguing the President-DOJ OLC-AG alone, outside the court, can determine that Presidential power is not constrained by the Warrant requirement. They’ve invented a new exceptions to the Constitution: The President, his decisions, and any action taken in the name of a nebulous objective.

        This is the definition of tyranny


  11. earlofhuntingdon says:

    O/T, but from the FDL news box we have word that the WaPoo will cut its newsroom staff 10%. “Dean” Broder took early retirement as part of a mass buyout of over 100 staff, but, sadly, his column will continue to appear on a “contract basis”. The blurb didn’t reveal whether Debbie Howell will leave. I’ll be on pins and needles until I found out.

    It’s been obvious for years that Fred Hiatt doesn’t read his own paper’s reporting. I guess he finally decided he shouldn’t pay for it even if others do. I wonder when the Rev. Moon or Rupert the Cannibal will finally acquire Ms. Graham’s once glorious newspaper?

  12. earlofhuntingdon says:

    I suspect Pastor Martin Niemoeller would agree with your paraphrase. And I like the exchange of executive for attorney-client privilege, but only on a transactional basis. The GOP’s leadership, of course, may soon find both privileges extraordinarily important to their ability to take a shower without fear of dropping the soap.

  13. Jim Clausen says:

    Congrats to Marcy. From Froomkin today.

    “Blogger emptywheel (Marcy Wheeler) wrote about this on Wednesday, noting that after the sentence was declassified, Brian A. Benczkowski, principal deputy assistant attorney general in the Office of Legislative Affairs, sent a letter to Whitehouse and Feinstein, “trying to claim that Yoo’s opinion is unremarkable.”

    From the Benczkowski letter: “The general proposition (of which the November 2001 statement is a particular example) that statutes will be interpreted whenever reasonably possible not to conflict with the President’s constitutional authorities is unremarkable and fully consistent with the longstanding precedents of OLC, issued under Administrations of both parties.”

  14. freepatriot says:

    instead of trading attorney/client privilege for executive privilege (abolishing both, I presume), why don’t we just apply sunlight and precedent to the claims of george bush and his crooked brethern ???

    renzi might win a few points on his A/C claims, but the whole repuglitard party is gonna be destroyed when deadeye dick’s “unitary executive” theory gets toss out

    ever heard the phrase “We Got Bigger Fish To Fry” ???

  15. Jim Clausen says:

    IANAL, any Statute of Limitations to those torts both as to civil rights or Constitutional torts?

    • JThomason says:

      At the very least I believe its 2 years, but there are exceptions and times when longer state established statutes will apply.

    • JThomason says:

      What we really are talking about is Republican resentment at general tort claims brought against businesses.

    • bmaz says:

      LHP is likely right (the ways around it are too byzantine, obtuse and unlikely to even bother discussing); however Jim it is a two year statute. As an aside, the question made me wonder if there will not be some better openings on straight 1983, 1985 type of actions on some of this stuff because of the wholesale outsourcing of things the federal government has been implementing. Not applicable here I imagine, but an interesting thought….

        • bmaz says:

          Most every Federal judge I have seen is; and I have seen a lot on this issue, it is what I used to do. My experience is they will literally bend over backwards and contort themselves to give the benefit to the government, even liberal judges.

        • looseheadprop says:

          they will literally bend over backwards and contort themselves to give the benefit to the government, even liberal judges.

          I don’t lose very often, but I have NEVER won or even gotten to trial an a Bivens claim, even when I had EVERY element needed to get out from under qualified immunity.

          The gov’t will often ADMIT all the the things you need to get around qualified immunity, os it’s not even an issue of fact that could be potentially decided inthe gov’t’s favor.

          And then you see these crazy assed decsisons the read like Yoo memos.

        • JThomason says:

          I don’t have the citations for the Altio holdings at hand. I just know the one time I brought a 1983 action I was really disappointed at how discouraged by the “sage” bar I was from brining an action against a governmental entity.

          While in that case it was established that the illegal enforcement of a garnishment by an employer was not action under “color of law” we did not get to the qualified immunity issues as to the governmental parties because we settled. I see no harm, especially in todays environment, to continue to question any judicial tendency to be liberal in construing the scope of qualified immunity. I just am not so much a legal positivist.

          I don’t mean to discount your experience or that of LHP. My main point about the resentment of Republicans because of the regulatory features of tort law was rejoined by FP opining that there were probably criminal civil rights violations in the Renzi phone taps or illegal phone tapping in general. This is how we got onto the entire topic of civil rights torts. The larger point is the development of corporate strategies of non-accountability to evade civil processes in tort litigation carried over into the procedural strategies of the current administration as an attitude holding the nature of law is nothing but personal fiat and that consequences can be avoided by rolling obfuscation and delay. And we see this shift away from the just standing of individual citizens in the bankruptcy legislation, the establishment of national jurisdiction in the credit industry and the restricting the venues of class actions. These shifts in the law are all driven by considerations of corporate economic advantage.

          That so much of the private corporate sector is now conflated with governmental interests is a shame but that is how we have evolved. We shall see if there is any viability left in free market ideas if we are able to move on from the petroleum economy toward electrical transportation as rapidly as our ancestors made the change for horse and buggy to the automobile. My fear is that the allure of power will dampen the economic benefits of the free society apportioning the cost of economic harm upon those who suffer rather than upon those who create the risk.

          This idea, the idea of responsibility for harm done, is a critical feature of the development of tort law including notions of strict liability which really gets to my principle gripe concerning the Republicans and their weltanschauung of pre-emptive war which is so consummate with their predatory economic notions

          This point is that all know that war is an inherently dangerous activity that will certainly lead to collateral casualties and death but there is no strong public argument being made assigning this responsibility to GWB in any kind of way that insists on accountability for these losses. This may be fine imperial law. But economically, in a global economy, we are operating a long way from the need for imperial underpinnings. This is why the lack of public debate leading to any authorization of military action in Iraq is so shameful. There was no public political sense prudently insisting upon an acknowledgment of the obvious costs that would be incurred, or a question of who would be accountable for these. We were treated only to a sense of entitlement, marketing violence and trickery to avoid legal accountability as a consequences of actions taken. And this is the attitude the current Republican administration has to legal accountability. Accountability should be at the heart of civil justice as a regulation of selfish, thoughtless, and shortsighted actions. Those who prefer to act arbitrarily solely for personal private gain at the expense of the public are those people who tend to resent the cost of paying the price associated with traditional notions of justice and fair play. They work at developing tactics and influence, that have the color of some kind of legitimacy, to shield their risks. Still the private accumulation of capital, though perhaps an underpinning to a greater or lesser degree, is not at the heart of the Constitutional order designed to check and balance earthly powers as they may arise in the context of the Republic.

        • bmaz says:

          I agree with most of that. You know, in a way, you are describing the application of qualified immunity to common interests and claims. It is the gradual (recently shockingly rapid actually) dismantling of the entire tort system. Back to Bivens, 1983 etc., I have never had any problem with the concept of qualified immunity for the agencies and actors of the sovereign; the problem is the breadth to which it is extended, and not occasionally, but always. It should not maintain where there is intentional, willful and/or wanton conduct far outside of the course and scope to cover the malfeasants as individuals, nor where the agency actively encourages or demands the same. It should be to protect normal government function, not the wholesale corruption and bastardization of the same. Yet just about anything and everything is place under it’s penumbra. I refer people here often to the Plame-Wilson decision, because it is well known, interesting and understandable. It is horrid contortion of what ought to be; but it is not even close to being among the worst instances I have seen, and it was predictable as clockwork ahead of time.

  16. rosalind says:

    “can bush’s lawyers be tried for war crimes?”

    for your listening pleasure, phillipe sands smacks down former OLC toadie noel francisco on today’s “to the point” radio show hosted by local l.a. treasure warren olney.

    other guests jamal davis former prison guard at abu ghraib and tom malinowski of human rights watch.….._trials_fo

  17. Hmmm says:

    McCain Campaign: Telecom Amnesty Requires Hearings and Apologies for Spying

    “First, we need to be explicit we are not talking about granting indulgences,” Fish said, clarifying that he meant forgiveness must be matched with repentance.

    Well, I guess that if a corporation is the same as a person, then sure, a corporation should be capable of sincere apology, and repentance. Maybe if we hold out for contrition, regret, and self-loathing, and suicidal tendencies, we can work out a deal. /s

    • JohnJ says:

      Don’t I remember something about the Catholic Church selling absolution (and pissing off Martin Luther) at one time?

      How’d that work out for them?

  18. masaccio says:

    Destruction of support of the tort system is the first of the horrid business repubs. Second step is installation of business-friendly judges from the Federalist society. Third step is replacement of the system of regulation of business with a system of caveat emptor.

    All of this is motivated by the demand of huge capital for huge returns. Real returns of 8% aren’t enough for the pigs on wall street and the money masters they serve. They want 15% or 25%, and there is literally nothing they won’t do to get that return. Drive up the price of commodities? Sure. Crush anyone damaged at a nursing home? Who cares? The old folks are going to die soon. Allow retreat mining that kills people? Let’s use the Iraq solution and give the survivors a check for $25K.

    Hey, as long as hedge fund investors get their 20%, it’s all good.

    • bmaz says:

      Yeah, it’s all about “the shareholders”. Except that is a freaking ruse too, because they are emaciating shareholder rights and privileges too. It is all about the executive, director and uber-rich investor class. The robber barons are back; rested, ready, bigger and badder than ever.

  19. bmaz says:

    Speaking of Gitmo torture, who will stand and defend the poor helpless torture lawyers? Funny you should ask. Lara Jakes Jordan has the answer: Mukasey

    Attorney General Michael Mukasey is defending former government lawyers who drew up the legal basis of the Bush administration’s use of harsh interrogation methods against terror suspects.
    Mukasey told Boston College Law School graduates Friday that lawyers doing their part to protect the country in the aftermath of the Sept. 11 attacks should not now be held liable or face criminal charges for doing so.

    At the Friday ceremony, Mukasey lambasted critics seeking to bring lawsuits or charges against the lawyers. “The rhetoric of these discussions is hostile and unforgiving,” Mukasey said in his prepared remarks.

    • JThomason says:

      See how easy it is to turn to a “situational ethics” approach when circumstances so dictate.

    • freepatriot says:

      “The rhetoric of these discussions is hostile and unforgiving,” Mukasey said in his prepared remarks.

      well, when we’re forced to discuss war crimes, and crimes against humanity, we can tend to be a bit hostile and unforgiving

      if that ain’t the time to be hostile and unforgiving, I don’t know when is the time …

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