The NSA appears to have been involved in the surveillance of privileged attorney-client communications, and the legal community is not happy about it. The New York Times reports that communications between an American law firm and its foreign client may have been among the information one of the NSA’s "five eyes" intelligence partners, the Australian Signals Dictorate, shared with the NSA. The American Bar Association has responded to these allegations by urging the NSA to clarify its procedures for minimizing exposure of privileged information- and rightly so. Surveillance of attorney-client communications is anathema to the fundamental system of justice established by our Constitution.
The Times reported that the newly leaked document provides evidence that the Australian spy agency asked the NSA for guidance on how to handle surveillance of privileged attorney-client communications while monitoring trade talks between the Indonesian government and the US. The NSA’s guidance apparently allowed the Australian agency "to continue to cover the talks, providing highly useful intelligence for interested US customers." An NSA spokeswoman did not deny the allegations, but did note that the NSA could offer a variety of limitations on the collection and dissemination of privileged communications.
ABA president James R. Silkenat writes in his letter to NSA Director Keith Alexander: "The attorney client privilege is a bedrock legal principle of our free society." The privilege protects communications between attorneys giving their clients or potential clients professional legal advice or assistance and ensures that people can seek candid advice from a qualified attorney without fear their discussions will be used against them. It allows clients to prevent disclosure of privileged information by others, and to refuse to disclose that information themselves. As the Supreme Court held in Upjohn Co. v. United States : "The privilege recognizes that sound legal advice or advocacy . . . depends on the lawyer’s being fully informed by the client."
Attorneys are legally bound by ethical rules that require them to protect privileged information, and the erosion of the attorney-client privilege should seriously concern every member of the legal profession. The Supreme Court recognized in Strickland v. Washington that the 6th amendment "right to counsel is the right to the effective assistance of counsel," and that effective assistance of counsel can be obstructed by "various kinds of state interference with counsel's assistance."
A look at some history is helpful. As the Times article points out, the issue of wiretapping privileged communications was at stake in Amnesty et. al v. Clapper. In that case, the plaintiffs were individuals and organizations whose work required regular communication of sensitive issues with people located overseas. Attorneys were among the plaintiffs. They argued that these communications were susceptible to unconstitutional surveillance under the broad authority granted by the FISA Amendments Act. During oral argument, Justice Kennedy noted: "I think the lawyer would engage in malpractice if he talked on the telephone with some of these clients, given this statute," which he said gave the government an "extraordinarily wide-reaching power." The case was ultimately dismissed on the grounds that the plaintiffs could not prove that they were being subjected to surveillance, and the issues Justice Kennedy noted were never discussed. Of course, since Clapper was decided, the leaks provided by Edward Snowden make it clear that surveillance is even wider than imagined, and that the attorney plaintiffs in that case were likely correct in believing that their privileged communications were subject to surveillance.
Attorneys representing Guantanamo detainees have also faced the issue of breach of attorney-client privilege. In 2011, Guantanamo’s commanding officer issued a written order that created a "privilege review team" that would open written communications between defense attorneys and their Guantanamo clients and scan the communications for contraband. This order was considered such a serious breach that Colonel J.P Colwell, Guantanamo Chief Defense Counsel, issued an ethics instruction in which he instructed Office of the Chief Defense Counsel attorneys not to comply with the order because doing so would violate attorney-client privilege. Several cases were also filed in response to the order.
One of the attorneys potentially affected by the documents referred to in the Times article joked that the communications "would have been pretty boring," but that is often not the case. Attorney-client communications are privileged for a reason; the privilege protects information that could be construed as prejudicial to a client. There is a very real concern that communications will actually be intercepted and used for various purposes. What’s more, the fear that communications may be intercepted has the potential to chill attorney-client relationships and prevent attorneys from zealously defending their clients. This is not an imaginary concern; in one of the cases challenging the Guantanamo order, the defendant “cited the seizure of the legal materials as a basis for refusing to meet [his defense attorneys]."
When the Guantanamo command order was released, bar associations took a stand. The National Association of Criminal Defense Lawyers issued an ethics opinion stating, "it would be unethical for a criminal defense lawyer to abide by the Communications Order… This is an impossible situation for an American lawyer and every notion of American criminal justice."
The American Bar Association also sent a letter of complaint to Secretary of Defense Leon Panetta stating that the order "impairs the ability of these dedicated lawyers to gain the trust and confidence of their clients, establish an effective attorney-client relationship, and maintain the professional independence that is so critical to a true adversarial process," and asking Secretary Panetta to rescind the order. These statements could have been about NSA spying.
The legal community has now taken a stand, but even more is needed. As the Times article cited, the American Bar Association changed its model rule 1.6 to require lawyers to "make reasonable efforts to prevent" privileged information. In fact, the ABA issued a resolution and report on surveillance and cybersecurity in August of 2013 encouraging attorneys to ensure that client information is secure. But in the case of government surveillance, the fault does not lie with lawyers, it lies with the NSA. The minimization techniques described by the NSA do not preserve privileged communications. It would be close to impossible for an average attorney to effectively thwart surveillance by a dedicated intelligence agency with tens of thousands of employees and billions of dollars in funding, especially when they are working with other similar spy agency partners around the world.
The National Association of Criminal Defense Lawyers (NACDL) recognizes this; it is a member of the Stop Watching Us Coalition, which has called on Congress to reform the PATRIOT Act and other government surveillance laws, create a special committee to investigate NSA spying, and hold the public officials responsible for unconstitutional surveillance accountable.
It now appears that the largest bar association in the country, the American Bar Association, may be following suit. In his letter, President Silkenat states, "The ABA has consistently fought to preserve the attorney-client privilege and opposes government policies, practices and procedures that erode the privilege." While the letter does express faith in NSA—faith the NSA may not deserve—it also "respectfully request[s] that [NSA Director Alexander and NSA General Counsel] 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." Perhaps the NSA will be responsive.
What is key here is that if the NSA does not respond to the ABA’s letter, the ABA must not stop asking for answers. In fact, like NACDL, the ABA should go even further by pushing for legislative reform and by condemning unconstitutional NSA surveillance.
Just as attorneys must zealously fight for their clients, the profession must zealously fight against surveillance that would undermine the ability to represent clients, and must see this this most recent revelation for what it is—a step away from the constitutionally prescribed system of justice attorneys are sworn to uphold.