Federal Judge: Government Need Not Disclose Spying on Attorney-Client Conversations at Gitmo

By Jeralyn, Section Terror Detainees
Posted on Thu Jun 26, 2008 at 06:17:48 PM EST
Tags: detainee, Guantanamo, attorney-client privilege (all tags)

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Via the Center for Constitutional Rights:

Late yesterday, a federal court judge ruled that the government did not have to disclose whether it was illegally spying on Guantanamo attorneys’ conversations. The judge ruled that the National Security Agency (NSA) could not be forced to reveal information about its domestic spying program because, “confirming or denying whether plaintiffs' communication with their clients has been intercepted would reveal information about the NSA's capabilities and activities.”

Plaintiffs had argued that the government cannot use the Freedom of Information Act (FOIA) to shield illegal surveillance of attorneys. In response, the court said that because of the breadth of a statute protecting the NSA’s secrecy, “the Court need not address plaintiffs’ substantive arguments concerning the TSP’s illegality.”

What it means: [More..]

According to CCR,

“This ruling allows the government to hide its illegal activities behind far-fetched claims of national security,” said CCR Executive Director Vincent Warren. “Not only does the public have the right to know, but our ability to represent our clients is deeply compromised by not knowing whether our conversations are being listened to and the information passed on to opposing counsel. We are investigating our next steps.”

< New Habeas Action Filed for Guantanamo Detainee | DMV Learns Acronyms >

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Federal Judge: Government Need Not Disclose Spying on Attorney-Client Conversations at Gitmo | 15 comments (15 topical)

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What is far fetched? (1.00 / 1) (#3)
by jimakaPPJ on Thu Jun 26, 2008 at 07:40:15 PM EST

These are not US citizens. Can we please quit pretending that they are??

and (5.00 / 2) (#5)
by cawaltz on Thu Jun 26, 2008 at 08:14:48 PM EST

not being citizens of the US means they aren't entitled to ?

It isn't bad enough that these people are being locked up, in many cases, based on hearsay and that treatment there has been less than humane. Now they aren't even allowed to speak with an attorney without having their conversations eing spied upon.

Then again, here n the good ol' US of A spyin without cause has just been deemed acceptable I guess it woul be too much to ask that foreigners be treated better than US citizens.


Not being US citizens (1.00 / 1) (#9)
by jimakaPPJ on Thu Jun 26, 2008 at 11:06:06 PM EST

mean they aren't entitled to constitutional protections for crimes committed outside the US.

And that's matter what the SC tells you.


Hmmmm (5.00 / 1) (#13)
by CoralGables on Fri Jun 27, 2008 at 08:44:48 AM EST

This is a very interesting, although convoluted approach. You're saying the US can arrest people for what we deem as crimes even if the act is committed outside the US, but not be subject to US laws...a bit contradictory don't you think?

I can accept that only if you were to agree they would then be subject to International Law or the Law of the country where they were taken into custody.


: hehe (1.00 / 0) (#15)
by jimakaPPJ on Fri Jun 27, 2008 at 09:22:49 AM EST

Uh yes, attacking the US military is something that I take exception to.
And yes, since the crime occurred outside the US by non-US citizens, I do not think the US Constitution applies.
Unless, that is, you want to say that every crime committed by every criminal against a US citizen outside the US makes the criminal eligible for all rights of a US citizen.
They do have the right to have their status reviewed, which was done, with some released. Some have returned to attack us, again.
They also have the right to be tried by a military tribunal and if found guilty, executed.
Hope that clears things up.

Oh pleaseeeeeeeeeeeeeeeee (1.00 / 1) (#10)
by jimakaPPJ on Thu Jun 26, 2008 at 11:11:43 PM EST

They have had hearings and hearings.

And some have been released and came back to fight again.

What do you want? A catch and release program for terrorists??


Heh (5.00 / 1) (#11)
by cawaltz on Fri Jun 27, 2008 at 12:20:28 AM EST

I prefer this link.

http://thinkprogress.org/2008/06/21/gitmo-report-scalia/


: Urban Myth??? I'm LOL (1.00 / 0) (#14)
by jimakaPPJ on Fri Jun 27, 2008 at 09:08:12 AM EST

These are very solid myths.

Among the names listed in the memo is Mohammed Yusif Yaqeb (search), also known as Mullah Shazada. Yaqeb was released in May 2003. He proceeded to become the head of Taliban (search) operations in southern Afghanistan and was killed one year later in a fight with U.S. forces
Also named is Maulavi Abdul Ghaffar (search), released in 2002 and returned to Afghanistan. As a regional commander, Ghaffar helped carry out attacks on U.S. troops in Afghanistan until he was killed by Afghan forces in September 2004.
One of the more notable cases involved Mohammed Ismail (search), one of two teens held at Gitmo until he was let go last year. He was recaptured four months later fighting American troops in Afghanistan. The memo notes that at the time of his capture Ismail was carrying a letter "confirming his status as a Taliban member in good standing."
"One of the most publicized cases, Mr. Ismail, was released to great fanfare at Guantanamo," Hunter said. Ismail "did a press conference at which he thanked the United States for educating him, because we teach them to read and write at Guantanamo."
Currently, 545 detainees are housed at Gitmo, most of them members of Al Qaeda, the Taliban and their related terror groups. An additional 146 have been released and 62 have been handed over to other governments, according to the memo.

Actually, there is apparently (none / 0) (#7)
by jccamp on Thu Jun 26, 2008 at 09:08:23 PM EST

no reason to think that attorney-client conversations (regarding GITMO detainees) has occurred. There is nothing in the court filings that affirms any interception ever happened.
Next, any such interception, had it occurred, would never be allowed into any court proceedings.
If such interceptions occurred, and the data is used for intelligence purposes only, then I am not sure what the issue might be. No part of due process would be disturbed if the wall is maintained between court proceedings and intelligence.
Finally, the court ruling was that intelligence agencies do not under current law have to confirm or deny intelligence gathering, if such disclosure might compromise methods and abilities. That law seems perfectly sensible to me.


Moving that ol overton (5.00 / 1) (#8)
by cawaltz on Thu Jun 26, 2008 at 09:48:25 PM EST

I'm sure spying isn't all that bad eh? I mean if you aren't doing anything wrong there is no reason to be concerned about the government spying on you.

Of course, there isn't any evidence. That was the whole point, without disclosure there isn't going to be any evidence. It's the same flippin logic that has people stymied when it comes to bringing the FISA garbage to light.

Are you absolutely certain that attorney client privledge is so sancrosanct that it isn't next? I mean we have already allowed people to be detained without charges. We have already said that waterboarding folks isn't "really" torture. The original plan was not to even allow these people to challenge their imprisonment. Heck, I'd imagine if they get anythin useful they will want to proceed directly to military tribunal anyway? How are THOSE going?


: Well, a little hyperbole perhaps? (none / 0) (#16)
by jccamp on Fri Jun 27, 2008 at 11:24:55 PM EST

"I'm sure spying isn't all that bad eh?"
We're talking about Gitmo here, not anything domestic.

"Of course, there isn't any evidence. That was the whole point..."
So, the lack of evidence proves the converse? Please. Why assume something to be true when, as you point out, "there is no evidence." There is a word for this: paranoia.

"Are you absolutely certain that attorney client privledge is so sancrosanct that it isn't next?"
Yes, I'm certain.
"I mean we have already allowed people to be detained without charges."
In more normal times, they would be called POW's. Because they have decided to act outside of organized government, without benefit of uniforms, rules, and other accouterments of warfare, they are now entitled to criminal prosecutions with typical evidentiary rules and the like?

"We have already said that waterboarding folks isn't "really" torture."
A grand total of three detainees have been subject to waterboarding, a practice now deemed unacceptable. You're right. it was a stupid, immoral and un-American thing to do. But it is not being done anymore. Can we move on?
The original lawsuit was part fishing expedition, part publicity stunt. U S intelligence agencies have a sensible and statutorily-supported policy of neither confirming nor denying intelligence operations. The people who filed the lawsuit knew that in advance, and being smart lawyers, also knew they would not prevail. This was a "gotcha' moment, nothing more.
There are sufficient genuine security vs. freedom issues to consider and debate. We don't need to make up any new ones.

There's nothing specific to noncitizens ... (none / 0) (#6)
by RonK Seattle on Thu Jun 26, 2008 at 08:25:32 PM EST

... in this ruling, is there???


Consistent, I'm afraid (none / 0) (#1)
by Ben Masel on Thu Jun 26, 2008 at 07:33:50 PM EST

with the parts of our case we lost in Takeover v US in the mid '70s. It's my understanding we were the 1st litigated FOIA case in the Govt. spying field. I was a named plaintiff.

: snort (none / 0) (#2)
by Salo on Thu Jun 26, 2008 at 07:36:16 PM EST

If they won't do it, GCHQ wil happily forward the transmissions to the NSA.

That is just absurd (none / 0) (#12)
by ineedalife on Fri Jun 27, 2008 at 07:57:35 AM EST

Everybody knows they have the ability to bug a conversation. It is just a question of wether they are or not.