Yesterday, The Nation reported that the National Security Agency (NSA) is intercepting and monitoring communications between lawyers and their clients.
Lest the readers of the Legal Ethics Forum be alarmed by that news, be assured that the NSA takes special precautions when it monitors some lawyer-client communications.
According to a partially declassified document, under certain circumstances, when the NSA realizes that the communication it is monitoring is between a lawyer and a client, it will:
- cease monitoring that communication,
- preserve the “foreign intelligence information contained” in the communication,
- segregate the “portion of the communication containing that conversation,” and
- notify the Justice Department “so that appropriate procedures may be established to protect such communications from review or use in any criminal prosecution.” (emphasis added)
These precautions –- called “minimization” procedures -- should not give much comfort to lawyers or clients who are concerned that the government may be listening in on their conversations.
Even where the government has used these precautions, the government appears to believe that it can use intercepted lawyer-client communications in a non-criminal proceeding, such as designating a group as a foreign terrorist organization. (Recall the al Haramain case, where the government inadvertently disclosed the fact that it had conducted warrantless surveillance of conversations between the Al Haramain Foundation and its lawyers, as discussed here.)
Nor would these “minimization” procedures prevent the government from intercepting lawyer-client communications and using that information to block lawsuits stemming from illegal rendition and torture, or even habeas petitions by Guantanamo prisoners. (Recall that the Center for Constitutional Rights raised these concerns in its lawsuit objecting to warrantless surveillance, as described here.)
More important, even this minimal level of protection does not apply to most lawyer-client communications at all. Instead, it only applies where the client has already been indicted, the NSA is aware of the indictment, and the lawyer represents the client in that criminal case.
In the title of The Nation article, the editors ask: Has the NSA Wiretapping Violated Attorney-Client Privilege?
But the real issue here is not whether the NSA has violated an evidentiary privilege. The real question is whether the NSA has violated the legal rights of clients and/or their lawyers.
A good starting point for thinking through the legal ethics aspect of that question is the scholarship of Rebecca Aviel on the distinct but related question: