The first time I heard the sound of my voice while going through recordings of a client’s wiretaps was too funny to be disturbing. The client was driving me home from an arraignment for a friend of his, and I had forgotten to call my mother to wish her a happy birthday. It upset her when that happened, and the client was an early adopter of cellphones. I borrowed his, wished her a happy birthday and all was well.
Until the turnover. In there, it said, “Unk Male” was speaking to “Unk Female” in code, “believed to be narcotics.” The code was, “Happy birthday, Mom.” I laughed. The judge laughed. The prosecutor laughed. Even my client laughed.
Of course, there was nothing in my communication to indicate I was a lawyer, and my conversation wasn’t privileged. In context, it showed how they would turn any conversation, no matter how innocuous, into a secret discussion in furtherance of the conspiracy. The agents were dopes. Had they known it was a privileged attorney/client conversation, Title III would have required minimization; turn off the recorder and note the privilege in the log.
In The Nation, a story about how NSA wiretapping has no similar limitation. They run through the experiences of some good lawyers, Bob Gottlieb and Ron Kuby, both of whom represented accused terrorists. Bob got the call to go to the “secure” location for some additional discovery to review in his defense of Adis Medunjanin :
“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.
It’s not that they were used as evidence, or that Bob said anything that would in any way be “embarrassing” to him. Not only is he a great lawyer, but a straight shooter. But he was outraged to learn his 42 conversations with his client were recorded. Fully, totally, non-minimizedly, recorded, for the government to hear.
There are guidelines that provide for minimization, but there is a catch:
Section four of the declassified 2011 guidelines is the part of that document that governs wiretapping attorney-client calls. At first glance, it seems quite clear: when the agent realizes that he or she is monitoring an attorney-client communication, “monitoring of that communication will cease and the communication will be identified as an attorney-client communication in a log maintained for that purpose.”
But given a second reading, section four doesn’t apply to all attorney-client calls. It provides only for the minimization (and protection) of the calls of “a person who is known to be under criminal indictment in the United States”—someone who has already been charged under US law. This is because indicted persons have a Sixth Amendment right to counsel. People who aren’t indicted don’t have this right, and so their calls are not minimized.
Attorney/client privilege is a bedrock principle, or so we thought. The problem appears to be that its constitutional interpretation by the government is that the 6th Amendment doesn’t kick in until indictment, and until then, the statutory prohibition doesn’t apply.
“The invocation of National Security trumps other rules,” Joshua Dratel, a veteran New York lawyer who has litigated over thirty terrorism cases told me over the telephone. Dratel says that calls subject to attorney-client privilege are not covered by the NSA’s minimization.
“These are calls that are covered by the privilege that are not covered by that kind of minimization,” he added. “FISA is 24/7, there’s no real minimization; in a practical sense it doesn’t exist. In all the FISA cases I’ve legislated, I’ve had no minimization.”
Given that the nature of representing the target of a terrorism related charge puts the lawyer squarely within the first hop of NSA purview, it’s essentially guaranteed that they’re going to listen to your conversations. And whether they minimize later, post indictment, is up to them. You won’t know if they do. You can’t stop them if you don’t know. What you do know is that they have everything and can do anything they want, guidelines be damned.
As Ron Kuby explained when he was nailed for his pre-indictment conversations with “Ahmad Wais Afzali, an imam who was tried for providing material support to the subway plotters,” not only do they listen, but they listen well enough to intentionally undermine defense strategy at that stage.
“The DOJ’s guidelines are so fucking narrow that they apply only to those who have been indicted,” said Kuby. “Since he was not indicted, they did more than just listen. Saturday morning we agreed that we would have a press conference on Sunday. The FBI chose to preëmpt that conference by arresting him on Saturday evening.”
“It’s beyond concern,” he added, “This is ongoing legal advice in an incredibly volatile situation in which the DOJ has a big stake, but they just didn’t give a fuck.”
What does all this mean?
Attorney-client privilege is often called one of the most “ancient” principles of US law, and lawyers view it as one of the most sacred. “It’s one of the oldest principles underlying our system of justice,” says Ellen Yaroshefsky, the director of the Jacob Burns Center for Ethics in the Practice of Law at Cardozo School of Law in New York City. “Without it you can’t allow a lawyer to do their job in providing their client with adequate and serious representation.”
And there isn’t a damn thing, under existing law, to stop it. It’s a fundamental attack on the right to counsel, the ability of a lawyer to provide a client advice without the other side munching popcorn as they listen to every word.
But you don’t represent terrorists like Bob and Ron? The NSA is scarfing up all metadata, all conversations. Yours included. Mine included. They may not be listening, but only because there aren’t enough agents in the country to listen to them all. Not because they can’t.
Should their capacity increase, or the desire to hear your otherwise privileged conversations with clients be strong enough to make the effort to do so, you can’t stop them and you may never know. Trust no email. Trust no cloud. Trust no telephone communication. And always be circumspect about what you say in any electronic medium, because you never know who will hear you.