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Monday, April 28, 2008

Big Brother is watching.

There is a story in today’s New York Times about how criminal defense lawyers involved in terrorism cases are concerned that the government is secretly monitoring their communications with their clients. Philip Shenon describes an Oregon attorney who flies to the Middle East every few weeks to speak to his client. He says this is the only way he can communicate with his client, because he is afraid that his email and telephone conversations are being monitored by the government under the powers it granted itself after 9/11 to conduct secret, warrantless eavesdropping, even of privileged attorney-client communications. Evidence of such surveillance ended up in the hands of defense lawyers in 2004 when the government mistakenly gave them a log stamped “Top Secret” that contained entries of interceptions under the National Security Agency’s warrantless wiretapping program. The government demanded that the lawyers return the log to the FBI and threatened them with prosecution if the contents of the book were released.

The Bush administration is pressing Congress to permanently ease restrictions on secret domestic wiretapping. Justice Department officials, speaking on the condition of anonymity, claimed that there was no effort to undermine the attorney-client privilege. “If a terrorist suspect living in a foreign country is calling into the United States and all of his calls are being monitored, the calls to his lawyers here might be intercepted, as well,” one of the officials said. “It’s not as if we’re targeting the lawyer for surveillance. It’s not like we’re eager to violate lawyer-client privilege. The lawyer is just one of the people whose calls from the suspect are being swept up.”

This is yet another outrageous example of a difficult situation justifying the erosion of basic, bedrock legal principles. Wiretaps were being conducted long before September 11, but when the wire tappers heard that a lawyer and a client were speaking, they stopped listening in and wrote in their log that they had done so. I am not so naive as to believe that an agent on a tap monitor never listened in on what a lawyer and client were saying. But for the government to allow lawyers and clients to be monitored while they discuss their cases, and to use the fruits of that spying in their investigation, is the single most dangerous entry in the long list of this government’s attempts to deprive us of the rights we hold so dear. CR

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