Dispatches from the Creation Wars

The Court of Appeals heard arguments today in the Center for Constitutional Rights (CCR) warrantless surveillance case, Wilner v. National Security Agency (NSA). CCR and co-counsel argued that the executive branch must disclose whether or not it has records related to wiretapping of privileged attorney-client conversations without a warrant.

Said Kathryn Sabbeth, Assistant Professor of Law at the University of North Carolina at Chapel Hill School of Law, who argued the case, "No argument could be made that targeting American lawyers on American soil to obtain information about their clients was legal, and indeed when counsel for the government was pressed for an explanation he offered none."

The rights attorneys appealed the government's Glomar assertions, meaning its refusal to either confirm or deny the existence of records sought in Freedom of Information Act (FOIA) litigation relating to the NSA warrantless wiretapping program and surveillance of attorneys representing detainees at Guantánamo.

"Our work with our clients may have been deeply compromised by illegal surveillance carried out by the last administration," said Shayana Kadidal, Senior Managing Attorney of the CCR Guantánamo Global Justice Initiative. "The new administration has no legal basis for refusing to come clean about any violations of attorney-client privilege by the NSA."

During arguments, the government's counsel stated, "We take no position on the legality of the TSP," referring to the Bush administration's Terror Surveillance Program.

The case is a FOIA lawsuit on behalf of 23 attorneys, including CCR staff attorneys Gitanjali S. Gutierrez and Wells Dixon, law professors, and partners at prominent international law firms, who believe they may have been the subjects of the NSA's warrantless wiretapping program authorized by the prior administration shortly after September 11, 2001. CCR, the Institute of Public Representation at Georgetown University Law Center and the Chicago law firm Butler Rubin Saltarelli & Boyd filed the case in the U.S. District Court for the Southern District of New York on May 17, 2007. The district court ruled the NSA could refuse to say anything either confirming or denying the existence of any related materials because to do so "would reveal information about the NSA's capabilities and activities."

Plaintiffs argued that the program and many details about it have already been made public, and a confirmation or denial that the lawyers were subject to surveillance cannot possibly harm NSA's intelligence-gathering abilities. The government cannot refuse to confirm or deny that these records exist, they said, because it would be unconstitutional and illegal to be eavesdropping on the lawyers without a warrant, and FOIA exemptions cannot shield unconstitutional or illegal conduct.

So why has the government taken this position? Because if they were to confirm that those attorneys were the targets of a warrantless wiretap, that would give them standing to sue the government for violating FISA. That has been their first line of legal defense in every single legal challenge to warrantless wiretapping - you can't prove that we wiretapped you unless we tell you we did and we're not going to tell you we did.

And the Obama administration is continuing to take that same asinine position.