Is the government wiretapping Gitmo defense attorneys? It won’t say, and so far litigation aimed at getting an answer hasn’t produced much in the way of any substantive information.
Lawyers for the Center for Constitutional Rights filed a Freedom of Information Act (FOIA) lawsuit on behalf of 23 lawyers who believe they may have been wiretapped without a warrant by the National Security Agency during the Bush administration. In responding to the lawsuit the government refused to say if it was wiretapping the attorneys or not, relying on the FOIA equivalent of a state secrets assertion known as a “Glomer Response”. Essentially this means that the government can simply refuse to answer a given question by relying on assertions that to either confirm or deny the existence of the information sought would imperil national security and ongoing investigations. The federal district court agreed with the government and held that the NSA could refuse to confirm or deny the existence of the wiretaps or any related documents or activities on the basis of national security concerns.
The CCR appealed the ruling arguing that the warrantless wiretap program, and many of the details surrounding the program, have already been made public so there is no way that a confirmation or denial that lawyers working on behalf of Gitmo detainees were subject to surveillance could possibly harm NSA’s intelligence-gathering abilities. According the the CCR, exceptions to FOIA cannot be used as a shield to illegal and unconstitutional conduct, in this case illegal eavesdropping on lawyers without a warrant. Interestingly, lawyers for the government (now representing the Obama administration) refused to take a position on the legality of the Bush administration’s warrantless wiretap program.
By withholding a position on the legality of the program the Obama administration, in effect, refused to defend the legality of the conduct at issue in the suit. But before viewing this refusal as a move away from Bush administration policies, keep in mind that this is the same position taken by the Bush/Cheney administration in first defending the suit, and it is the same position taken by the Obama administration with regards to “state secrets” in non-FOIA litigation. This is hardly change, and even more discouraging, represents an adoption in total of the Bush/Cheney unconstitutional surveillance programs.
CCR has led the legal battle over Guantanamo for the last six years, including sending the first habeas attorneys to the base as well as sending the fist attorney to meet with a former CIA “ghost detainee.” CCR has organized and coordinated more than 500 pro bono lawyers across the country in order to represent the boys and men held at Guantanamo, ensuring that nearly all of them hame the option of legal representation. CCR is also actively working to resettle Guantamo’s political prisoners.
For more on the litigation, including pleadings and briefs, click here.
With all this advocacy on behalf of this country’s constitutional principles it begs the question of whether or not, in refusing to answer the FOIA request, the government has in fact confirmed the existence of illegal surveillance of attorneys. For an administration that encompassed the values of executive overreach why should we be surprised to learn that well-recognized privileges such as attorney-client privileges, let alone constitutional privacy and free-trial guarantees were intentionally violated. Once again the true disappointment comes from having a President and constitutional scholar embrace the illegality of his predecessor.
photo courtesy of ConspiracyofHappiness via Flickr