CCR Fights to Uphold Attorney-Client Privilege

So al-Haramain, at least for the moment, has won its case against the government. But there’s an aspect of the case that often gets forgotten: al-Haramain argued not just that some of its employees were wiretapped, but that lawyers working for al-Haramain, Wendell Belew and Asim Ghafoor, were wiretapped. We seem to have forgotten that this country once believed that attorney-client conversations should be protected to ensure the legal process.

The Center for Constitutional Rights hasn’t forgotten. They, too, had a suit arguing that the government wiretapped attorney-client conversations (though unlike al-Haramain, they never got a wiretap log reflecting those conversations, nor were they able to make a prima facie case they were wiretapped). Last night, they appealed their suit to the Supreme Court. From their press release:

Last night, the Center for Constitutional Rights (CCR) asked the Supreme Court to take up its warrantless surveillance case, Wilner v. National Security Agency (NSA). CCR and co-counsel argue that the Executive Branch must disclose whether or not it has records related to the wiretapping of privileged attorney-client conversations without a warrant. Lawyers for the Guantánamo detainees fit the officially acknowledged profile of those subject to surveillance under the former administration’s program, and the Executive Branch has argued in the past that it has a right to target them.

The plaintiffs in the case are 23 attorneys who have represented Guantánamo detainees. They filed a Freedom of Information Act (FOIA) request seeking records of any surveillance of their communications under the NSA’s warrantless surveillance program, which began after 9/11 but was only disclosed to the public in December 2005. The government refused to either confirm or deny whether such records existed, and the lower courts refused to order the government to confirm whether it had eavesdropped on attorney-client communications. The question before the Supreme Court is whether the government can refuse to confirm or deny whether records of such surveillance exist, even though any such surveillance would necessarily be unconstitutional and illegal.

“Illegal surveillance of attorney-client communications makes it nearly impossible to challenge other illegal behavior by the government,” said Shayana Kadidal, Senior Managing Attorney of the CCR Guantánamo Global Justice Initiative. “The new administration has no legal basis for refusing to come clean about any violations of attorney-client privilege by the NSA.”

The petition filed last night includes declarations from the Guantánamo attorneys detailing how the threat of illegal surveillance by the NSA has made it harder for them to gather evidence in their cases from witnesses overseas, including family members of detainees, who are often unwilling to speak freely on the phone given the threat that the government may be listening in.

I’m in the process of writing a post on why I think the government will not appeal Judge Walker’s ruling in al-Haramain. But who knows–SCOTUS might get a warrantless wiretap case sooner rather than later.

Update: Here’s their petition. I’ll have some comment on that later.

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18 replies
  1. SmileySam says:

    I wrote months ago that if Walker granted summary judgment that the Gov. would probably rather pay the fine than let this go any farther. At the time I didn’t really think it would come to that but now… I wonder if your thinking is running the same way ?

  2. BoxTurtle says:

    I agree, the government will not appeal the Al-H ruling, though they will publically say they disagree with every word. This gives Obama nearly everything he wants and all he has to do is pay up. He can continue looking forward.

    The supremes aren’t likely to look with favor on CCR’s filing. They’re asking for classified information that may or may not exist, while Al-H was able to prove their case without classified info. I see four solid votes against CCR (Thomas, Scalia, Alito, Roberts) and three votes that could go eiher way (Sotomeyer, Kennedy, Ginsberg). I think they’ll hear the case, but rule against CCR.

    Boxturtle (Think of all the convictions we could get if we could listen in on the lawyers!)

  3. MadDog says:

    So what’s the betting line whether the Supremos will accept cert on this case?

    5 to 4 against? 5 to 4 in favor?

    And would the composition of SCOTUS play a role in EW’s soon-to-be published post on why the government won’t appeal the al-Haramain ruling?

    I’m patient. I can wait. *g*

    • BoxTurtle says:

      I’d be willing to bet on a 9-0 vote for cert. I think regardless of their individual politics, all will agree that this is something the court should hear.

      Boxturtle (But I bet they announce cert without giving a vote count)

      • MadDog says:

        On CCR or al-Haramain?

        The issues when viewed from a SCOTUS perspective are substantially different.

        In CCR’s case, they got bonked before they even ever got out of the starting gate by SSP.

        In al-Haramain, the government got bonked by FISA trumping SSP.

        • BoxTurtle says:

          CCR. Al-H has to go through the 9th first. And I don’t think the government will push Al-H. They’ll write the check from the taxpayers and scuttle off, thankful that their lawyers didn’t get sanctioned.

          The supreme court denies cert primarly for two reasons: They feel they’ve already settled the issue or there’s no constitutional issue to argue. Yeah, there are other reasons but if you’ve followed the rules those are the two you have to worry about. CCR I think has alleged sufficient constitutional issues and it’s clear the matter ain’t been settled. So they get cert.

          Boxturtle (Not at all sure CCR would win with the supremes)

          • MadDog says:

            …And I don’t think the government will push Al-H…

            I’ll be patient in waiting to see EW’s post on this tack.

            It will be interesting whether she argues merely from a contrarian view or whether she believes the argument.

            • emptywheel says:

              Just did a post on it.

              As to your comment at 6, suffice it to say that I’ve been aware of that footnote since the document was first released. I first alerted the government to it around about February 21.

    • bmaz says:

      No, if al-Haramain gets petitioned for cert. by the government, it will get accepted and any current potential flux in the composition of the court likely would not affect that in the least. Caveat, this is just my opinion.

      • MadDog says:

        Ahh, but the question is whether the CCR appeal will be accepted.

        I agree that if the 9th stands firm with Walker on al-Haramain, the Supremos would likely accept it on appeal.

        If however, the 9th reverses Walker on al-Haramain and declares SSP trumps FISA, I’d bet EFF would have a tough row to hoe to get SCOTUS to accept their appeal.

  4. MadDog says:

    And totally OT – another interesting Jane Mayer post on her New Yorker blog:

    Who Killed Gul Rahman?

    In it she mentions this nice takeaway:

    …In an apparent oversight, however, the identity of the manager of the Salt Pit at the time of Rahman’s death appeared recently in a public document. The officer, who continues to work for the C.I.A., is mentioned by name in a footnote in the October, 2009, legal response to allegations of unprofessional conduct filed by lawyers for Jay Bybee, the former head of the Office of Legal Counsel…

    That CIA officer’s name is Z—– as documented in Footnote 28 on page 33 of burnt’s searchable version of the Bybee Response to OPR Final Draft entitled “BybeeRespons090729searchable.pdf” (it seems it is no longer on burnt’s site, but I downloaded my own copy).

    The original Bybee Response to OPR Final Draft on EW’s post has that CIA Officer’s name redacted, and the HJC page does not list Bybee’s 2nd response.

    Based on the timeline, it would seem the CIA went back and redacted Z—–‘s name after burnt had helped us all by making a searchable copy of “BybeeRespons090729searchable.pdf”.

    But then, how does that square with the fact that EW’s version is redacted, and EW was her typical “first out of the gate” self in breaking the news?

    If other commenters are confused, welcome to the club. *g*

      • MadDog says:

        Thanks for the edit.

        Isn’t the fact that the government itself made this info public a defense? (No, see al-Haramain *g*).

        Should I now be personally looking for a good defense attorney?

        • bmaz says:

          Better safe than sorry. And it is always a good thing to pay criminal defense attorneys! However you need not do so yet……

          • MadDog says:

            What? Pay?

            But to hear Glenn Beck, we now live in a Socialist paradise where everything was “free”. *g*

            Note to Self: Self, everything Glenn Beck says is true except the part about it being free.

            • burnt says:

              Gee, a guy goes away for a few hours to play bridge with his mom and returns to this.

              Well, since the cat is out of the bag, MadDog, I took the searchable Bybee Two memo down at EW’s request. If it had been anyone but EW or bmaz doing the asking it would have stayed up and a copy sent off to Wiki Leaks. My youthful self would have published it in the student newspaper and faxed copies to the papers of record.

              I’m no longer my youthful self but I am deeply troubled by this. We have a guy who didn’t have specific intent to kill Gul Rahman as determined by the whitewash board. Does the CIA hire only (insert politically incorrect Rahm Emanuel phrase here)? This guy you briefly outed suspected (or knew) Rahman was going to die. (edit, hmm, hit post prematurely, but whatever. Perhaps his anonymity is worth preserving but I feel dirty, frankly)

              And if you are curious MadDog, Judging by the number of bytes going through my account back then I’d guesstimate several dozen people bothered to download Bybee Two.

        • emptywheel says:

          As far as defense, I’m sure you’re fine (and I base that on my long experience as a defense … um, never mind.

          But a blog that spent 3 years talking about Valerie Plame has little business making that name public. He may be a murderous bastard. But we work here to hold murderous bastards accountable via legal means, not to make it easier to have extremists kill the murderous bastard via extralegal means.

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