Bar Association Backs Suit Challenging Eavesdropping Program

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The New York Sun

The Bar Association of New York City has backed a lawsuit challenging the National Security Agency’s program of eavesdropping without a court order.

In a brief filed recently in U.S. District Court in Manhattan, the city bar association asserts that the monitoring of attorney-client conversations as part of the NSA’s eavesdropping program is unconstitutional and has impaired the ability of lawyers to represent terror suspects.

“The NSA Surveillance Program seriously inhibits the ability of these accused persons – supposedly members or affiliates of politically unpopular groups accused of terrorism – effectively to litigate their position because it necessarily chills communications with their attorneys, as well as communications between their attorneys and witnesses and others who reside outside the United States.”

The city bar association contributed the brief, dated April 28, in support of a lawsuit filed earlier this year by a civil rights group, the Center for Constitutional Rights. The lawsuit was filed on behalf of four attorneys and a legal worker at the CCR. As part of their work, those plaintiffs represent detainees in Guantanamo Bay as well as several Muslim men living abroad who are now suing the government over their post-September 11, 2001, detentions.

In March, the CCR requested that the judge in its case against the government, Gerard Lynch, immediately rule that the eavesdropping is illegal. The CCR – joined now by the city bar – takes the position that public comments by administration officials provide enough evidence that the program is unlawful.

Some legal observers have expressed significant doubts that a judge would rule against the surveillance program prior to hearing evidence beyond the public statements of administration officials. President Bush has said the program is necessary to protect the public against terrorism and has taken the position that the program is legal even though the wiretapping may occur without a warrant from a court.

The government is scheduled to file any motion to dismiss the lawsuit and to respond to the request for summary judgment by May 19.

In late March, the U.S. Department of Justice stated that, under the program, attorney-client conversations “would not be categorically excluded from interception” under the program.

In its brief, the city bar association, an organization of more than 22,000 attorneys, argued that confidential communications between lawyers and their attorneys are critical for giving legal advice. Courts have long given special protection to such conversations. The brief contends that even a recent version of the NSA’s manual, titled “Legal Compliance and Minimization Procedures,” states that attorney-client conversations are not to be monitored.

The 19-page brief further includes findings on how foreign courts, including several in Europe, grant secrecy for attorney-client communications.

Administration officials have said that only communications involving one party outside of the country and one party believed to be linked to terrorist organizations may come under interception without a court order.

The brief was written by a Cravath, Swaine, & Moore lawyer, Peter Barbur. The chairman of the Committee on Civil Rights at the city bar association, Sidney Rosdeitcher, contributed to its drafting. Other organizations, ranging from the NAACP to the American-Arab Anti-Discrimination Committee, have also submitted briefs in support of the lawsuit.

The New York Sun

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