Rule of Law
by mcjoan
Sat May 10, 2008 at 08:30:31 AM PDT
A few weeks ago, the NYT reported on the growing number of defense attorneys representing terrorism-related defendants concerned about their communications with their clients being intercepted. Now, more than 20 lawyers for Guantanamo inmates have officially accused the government of eavesdropping on what should be their privileged communications with clients.
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.
Several of the lawyers, including partners at large corporate law firms, said the concerns had changed the way they went about their work apart from Guantánamo cases. A lawyer in Chicago, H. Candace Gorman, said in an affidavit that she was no longer accepting new clients of any type because she could not assure them of confidentiality.
The new filing, by the Center for Constitutional Rights, came in a 2007 lawsuit under the Freedom of Information Act in which Guantánamo lawyers are seeking records to determine whether they have been targets of surveillance.
The CCR has more in this release:
New York – Last night, the Center for Constitutional Rights (CCR) and co-counsel filed an opposition brief in Wilner v. NSA, a Freedom of Information Act (FOIA) lawsuit on behalf of 24 attorneys who represent detainees at Guantánamo – including CCR staff attorneys Gitanjali Gutierrez and Wells Dixon, as well as law professors and partners at prominent international law firms. These attorneys believe they may have been targeted by the government’s warrantless wiretapping program that began shortly after September 11, 2001 because of their representation of Guantánamo prisoners labeled "enemy combatants" by the government. They seek access to records showing whether the government has intercepted communications relating to their representation of these clients.
"The existence of the spying program inhibits our ability to do our work," said CCR attorney Gitanjali Gutierrez, a plaintiff in the case. "We sometimes have to warn clients and potential witnesses that their communications with us may be monitored by the government. The NSA program prevents us from assuring them of confidentiality, making clients and witnesses less likely to want to participate in any cases against the government."
Although CCR argues that any warrantless surveillance of the plaintiffs would be illegal, not only have the National Security Agency (NSA) and the Department of Justice (DOJ) refused to turn over the relevant records, they have refused to confirm or deny whether the plaintiffs were in fact subject to surveillance under the program. The newly-filed brief argues that the government must provide the records if they exist because the FOIA statute cannot be used to hide illegal activities....
"One of the striking things about this program is that it means opposing counsel – particularly the DOJ – may be listening in on our litigation strategy," said Shayana Kadidal, Managing Attorney for CCR’s Guantánamo Project and counsel in this case. "The uncertainty created by the existence of the NSA program makes it far more difficult for lawyers to challenge in court all the other illegal behavior of this administration in the course of the so-called War on Terror. Today’s filing is an attempt to determine whether all the warning signs of government surveillance are real or just false alarms."
This is as important a case as the 40 that are pending against the telcos which participated in the illegal wiretappiing program, so of course that means the government will undoubtely fight to shut it down. But beyond what it might potentially tell us about the program, it points to the chilling effect it has had on such a basic tenet of law as a lawyers ability to provide an adequate defense for a client.
The breakdown of the rule of law doesn't extend just to the lawbreaking by this administration--the administration is fundamentally opposed to and intent upon dismantling our system of justice when it might infringe in any way upon the administration's conduct. This is the very basic and fundamental issue from which all of the abuses of this adminstration flow--the essential lawlessness of the Bush/Cheney cabal.
And it's the larger issue that is at stake in what has become a rather narrow fight over telco amnesty. Because the Bush assault on the rule of law isn't just against our justice system. It goes the very foundation of our nation upon the rule of law, our Constitution and how the branches of government function within it. There are some very fundamental issues at stake in this, even as this administration's days are numbered. It's what the fight to prevent Congress from immunizing the telcos--and by extension, the administration--represents.
That so many in Congress could be so willing to be a part of this dismantling--so complicit in the neutering of their own ability to govern co-equally is astounding.
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