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

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?

6 replies
  1. ArizonaBumblebee says:

    Is it just me, or am I the only one who is getting tired of the sophistry and double-talk that is showered on the general public whenever government officials opine on these national security issues? Let me be direct. The NSA has certain procedures that don’t allow them to do certain things, particularly when they relate to American citizens. To get around these limitations, the NSA farms out these tasks to third parties, such as the so-called Five Eyes. Unless Congress gets off its butt and does something to stop the practice, the NSA will continue to play this game. I’ve figured it out; the NSA and DOJ can stop telling the public and me a load of gobbledygook every time they need to explain away why they did something they shouldn’t have.

  2. Frank33 says:


    No, it is not just you. True American Patriots are horrified by the goons and thugs and assassins of the Secret Government. However the Secret Government have given themselves super powers to lie, steal, cheat and murder, and profit from their lies, cheating, stealing and murder. These treasonous bastards are assisted by their Mockingbirds, who pretend to be journalists as they spread the poisonous deceptions of a Phony War on terror.

    All the Five Eyes are terrorists. They help each other create a world wide dictatorship. They are willing tools of the Billionaire parasites who are poisoning the planet for fun and profit. The rest of us are merely useless feeders to them.

  3. orionATL says:

    what a mealy-mouthed, obsequious response by a national association of lawyers.

    it must have been corporate lawyers and would-be judges who wrote this crap.

    they might as well be psychologists; they behave with all of that tribe’s courage.

    do we and our lawyer profession value, uphold, and punish intrusion upon, attorney-client privalege (as we should have and should allow unspyedupon at, e.g., guantanamo), or do we not.

    does the aba not realize that the fundamental raison d’etre of nsa spying is to illicitly gain information that will give the american government lawyers and investigators an enormous advantage in any legal confrontation or negotiation?

    and that preventing that leg-up is precisely the reason attorney-client privilege is implemented and protected.

    the nsa spying is, after all, the u.s. government’s fifth ace in any legal or negotiating venue. in other words, the u.s. government massively cheats whenever and however it can.

    when we analyze the rationales for nsa’s congressional and presidential authorities, we are primarily analyzing the consequences of the human emotions of competition.

    it follows there is much irrational behavior in the nsa’s institutional behavior and in the authorizations and political support the nsa receives.

  4. rogerB says:

    The latest heavily redacted filing in USA v Tsarnaev shows the defendant’s attorneys complaining that the FBI are monitoring their communications with their client and this is affecting their defence.

    They also want a taint team to be put together so they can show documents without having Bureau of Prisons screen documents they take to show their client.

  5. C says:

    Having been involved in getting much smaller organizations to take a stand on even simpler issues I have to say that I am not as negative about this letter.

    For an organization of this size to respond in a week is amazing and is telling in and of itself. Clearly the issue has penetrated the consciousness of the American legal community already. More importantly, while the letter does place more trust in the NSA’s statements they deserve it has to reflect the viewpoints of the ABA’s many pro-National Security Community members. The fact that it got written at all means that they too don’t fully trust the NSA and believe that it needs to be reminded of basic law. In many respects though the letter is mealy-mouthed it is stronger than it appears.

    I agree that the fact that big corporate lawyers were finally hit is what drove it. The ABA, like the APA seems to believe that what happens at Gitmo stays at Gitmo. This is progress nonetheless.

  6. orionATL says:


    a wise comment and very likely on the mark.

    still, my intuitive response is more like “grrrrr” than “glad you guys could get something together”.

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