Has NSA Wiretapping Violated Attorney-Client Privilege?

[Oilwellian]

The first time Adis Medunjanin tried to call Robert C. Gottlieb in mid-2009, Gottlieb was out of the office. Medunjanin was agitated. He had to speak to an attorney. Gottlieb’s assistant told him he would be back soon. When he spoke to the lawyer a little later, he told him he might need legal representation. He thought he might be under investigation.

Over the next six months and over forty-two phone calls, Medunjanin sought legal advice from Gottlieb. When he was arrested in January 2010 on charges that he tried to bomb the New York subway, it was Gottlieb who defended him, receiving security clearance to review government documents pertinent to the case in the process.

Gottlieb was preparing his defense when a federal officer in charge of information distribution emailed him that there was new classified information he needed to review at the US Eastern District Court in Brooklyn. “I went over to the Brooklyn Federal courthouse, went up to the secured room, gained entry with the secret security codes, opened the file cabinet that is also secure and in the second drawer was a CD,” Gottlieb told me. On that CD were recordings of every single one of his forty-two phone calls with Medunjanin before he was taken into custody and indicted on January 7, 2010.

Such calls are normally sacrosanct under the principle of attorney-client privilege, the ability to speak confidentially with your lawyer. But a leak to The Guardian last summer of National Security Agency (NSA) procedures that are supposed to protect privileged calls showed that some attorney-client privileged calls are not subject to internal rules that detail the instances when a wiretap should be turned off. A later version of the procedures declassified by the NSA last August contains the same language.

http://www.thenation.com/article/178225/has-nsa-wiretapping-violated-attorney-client-privilege

[SamKnause]

1. The NSA violates every law that they can get away with.

[TheKentuckian]

2. Have I missed the every thread, "I don't really support this and I don't care but..." defender yet?

[RC]

3. Where are the usual suspects denigrating Snowden and by inference, defending the NSA?

All in the name of defending us from mass terrorism, by the NSA's blatant violations our civil and Constitutional Rights.

[hootinholler]

5. They're over here

Yelling It's only metadata

[riderinthestorm]

4. Its only metadata!!11!!!!

[Octafish]

6. The full NAZI.

GESTAPO knew no limits in what it could do to protect the state and der Fuehrer.

[struggle4progress]

7. Were the tapes were produced pursuant to a wiretapping warrant?

Adis Medunjanin was ultimately arrested, as were his friends Zarein Ahmedzay and Najibullah Zazi, for allegedly plotting to blow up a NY subway line

Medunjanin pleaded innocent but was convicted after both Ahmedzay and Zazi pleaded guilty and testified against him

The natural guess would be that investigators tracking Medunjanin got a warrant to tap his phone and did so: once Medunjanin was arrested, and Gottlieb became his defense attorney, Gottlieb was properly advised of the existence of the investigation recordings

[riderinthestorm]

8. So if there was a warrant that means no more attorney/client privilege?

I'm not sn attorney but I don't think it works like that

[struggle4progress]

10. Your broad theory -- that in an investigation into suspected planning for a criminal act,

no valid warrant for a telephone wiretap can ever cover telephone communications between the target of the warrant and any licensed attorney -- would certainly fail in the courts

You would be on firmer ground with the theory -- that communications, between an indicted defendant and an attorney retained for defense against those charges, are privileged -- but the courts admit some exceptions even to that theory

It is, of course, a generally sound idea that suspects and potential suspects ought to be able to consult counsel with confidence in the privacy of the consultations. It may also sometimes be a sound idea, when there is good cause to suspect someone is planning a serious crime, that an effective investigation be conducted to collect evidence that may lead to the conviction and confinement of that person for a less serious crime, rather than waiting to act until after the more serious crime is committed

If you attempt an exhaustive listing of generally sound principles, and then seek to apply it to real cases, you will find conflicts

For this reason, our judicial system does not operate according to algebraic laws: rather, it attempts to balance different and conflicting interests, in light of existing statutes, prior decisions, and actual facts -- which vary from cases to case and which may not always be easily discernible

Rights at law are enforced by remedies: the right, for example, not to be illegally wiretapped might bring with it the inadmissibility of evidence resulting even indirectly from the wiretap

In the case here, by properly providing the attorney the conversations obtained under wiretap, the government has provided the attorney with some opportunity to argue that a right has been violated and that some remedy should therefore counter the violation

[bobthedrummer]

9. I believe it is called Deprivation of Rights Under Color of Law, kick, n/t

[stevenleser]

11. We need some DU attorneys to answer a few questions

#1 - If the Justice department has a wiretap on a phone that captures privileged discussion but the contents are never used in building the prosecution's case, has the privilege been violated? My sense is no, but that is a question for an attorney.

#2 - In the case of armed attacks by non citizen members of external groups against the US, i.e. acts of war, what Constitutional amendments and the protections therein apply to those carrying out the attacks if caught? My sense regarding this is, not many.

#3 - In the case of armed attacks by citizens working as defacto members of external groups against the US, i.e., acts of war, what Constitutional amendments and the protections therein apply to those carrying out the attacks if caught? This seems to be part of the question here. I think it is the full suite, with some exceptions, but I am not sure.

[msanthrope]

12. Hi steve..I'll try to answer you....

1. Privilege may be violated, but courts only concern themselves when there is an 'injury' to be remedied. Is there an injury here? Has a loss of liberty resulted from the violation of privilege? Has law enforcement obtained information they were otherwise not entitled to? If the answer to both of those questions is no then what has happened may be a violation of privilege but has no injury... therefore there is no remedy in a court.

As a general rule, and somewhat explained in the article, law enforcement is supposed to decide relatively early in the conversation whether it is essential, non-essential, or privileged. as a general rule I advise clients that prior to their indictment, law enforcement may not be particularly careful about who they capture on a wire tap.... they may also not know that you are calling an attorney.... note the taping of Ron Kuby occurs on the first day of his representation.

2. and 3..... if you're here on American soil, the same constitutional amendments apply to citizens and non citizens. So do the same constitutional exceptions. Mere citizenship does not confer some sort of special privilege.... I've noticed in the hand-wringing threads for Anwar Aw-laki that a big deal is made about the fact that he was an American citizen.... as if the AUMF of 9/18/2001 did not apply to him. This is an incorrect assumption. Citizen or non citizen... if you participate in acts that are encompassed under that particular AUMF, the government can assign you combatant status, citizen or non, and choose to pursue you in the military or federal court system.

President Obama has chosen a very wise course.... in general combatants outside of the us while non-custodial have been treated militarily. once custodial, he's abandoned military prosecution in favor of article 3 prosecution. Anwar Awlaki had a choice... had he submitted to American custody the constitutional protections for custodial combatants under Boumiendienne (sp). would have applied. Since he chose to remain non-custodial, a different constitutional process was applied.

[woo me with science]

13. K&R

[Savannahmann]

14. I love the redefine of Attorney Client Privilege.

It now only applies after you've been charged, sometimes, sort of, perhaps in a case by case, call by call, basis. I mean, they might be discussing criminal activity.

[Warren DeMontague]

15. They've admitted they used illegal surveillance to find and target drug users, notified the DEA

who then used parallel construction to falsify the evidence trail as to how they figured out that guy was smoking a joint in his basement.