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Shayana Kadidal Headshot

Judge Orders Ashcroft, DOJ to Come Clean on Attorney-Client Surveillance

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Yesterday a judge ordered the Bush Administration to finally come clean about spying on some attorney-client conversations.

As The New York Times reports, the order means that the administration "cannot dodge" a "persistent and unwelcome question: Are members of the United States trial team and likely witnesses -- including Mr. Ashcroft and Robert S. Mueller III, the F.B.I. director -- aware of any secret government monitoring of communications between the plaintiffs and their lawyers?"

That crucial question has been simmering for months because the Bush Administration has vigorously fought to avoid answering it in court, even though US law protects the confidentiality of attorney-client conversations. The case, Turkmen v. Ashcroft, was filed against former Attorney General John Ashcroft on behalf of people detained after the September 11th attacks, and brought by my organization, the Center for Constitutional Rights, and attorneys from Covington & Burling, our pro bono co-counsel. (Yesterday's order also applies to the companion case, Elmaghraby v. Ashcroft, brought by the Urban Justice Center and the law firms Koob & Magoolaghan and Weil Gotshal & Manges.)

Before diving into the details of this case, it's important to view this order in the context of the administration's illegal spying program. When the Program is challenged, the administration has simple talking points: Say it prevents terrorism, and say everything else is classified. But both points are false.

Several experts and newspapers have demonstrated that massive, warrantless surveillance is ineffective - more likely to waste time on dead ends than catch high-level terrorists. And many aspects of the government's domestic spying are basically the opposite of classified; they have been heavily promoted by the President and senior administration officials. Yet the secrecy arguments continue to pop up whenever the administration is under pressure to reveal potentially damaging information, or when it is challenged in court.

Government attorneys tried to play the "secrecy card" in this case, but the Judge explicitly rejected the administration's claims as unbelievable, concluding that:

"Any claim that sensitive secrets would be revealed by the government's disclosure of whether conversations between plaintiffs and their counsel in this case were monitored is hard to fathom."

In coming to this conclusion, the Court cited President Bush's promotion of the NSA program, noting that "the government's electronic surveillance of individuals suspected of links to terrorism has received widespread publicity and has even been acknowledged by the president of the United States." In other words, the administration has already divulged so much about the program that it cannot plausibly claim secrecy prevents them from disclosing whether our clients and we were eavesdropped upon. So much for the secrecy card.

But the government's attempt to hide potential surveillance of American attorneys could have far-reaching consequences. Michael Winger, a member of the Turkmen v. Ashcroft trial team and Special Counsel at Covington & Burling, explained today why the administration's position is problematic for due process and potential surveillance in other cases:

It's the government's position which makes these surveillance issues a huge problem now. The law is straightforward: if the government intercepts attorney-client communications in a case involving the government, then it has to make full disclosure. That means saying what was intercepted, who heard or read the interception, and what was done with the information. Based on those facts, a court decides what to do about it. I think that historically the Department of Justice has been quite scrupulous about these things. But this administration evidently has the view that if it claims national security, it doesn't have to disclose anything to anyone. The government offered to make some disclosures in the Turkmen case, but very limited. If that position holds up, then anyone with a foreign client suing the U.S. government has no way of knowing whether anyone is listening to telephone conversations, or who, or who gets told. But Judge Gold rejected the government position.

That rejection means that John Ashcroft, Robert Mueller, the government attorneys and their supervisors must all state whether they have any knowledge of surveillance or monitoring of the opposing attorneys and plaintiffs. The order also requires the government to state whether any information from surveillance will be "used in any way by the United States in its defense of these cases and, if so, identify the information that will be so used."

The surveillance issue has been an unwelcome distraction from the underlying civil rights case, challenging the profiling and detention policies of the US government. It is an important civil rights challenge that the administration has been fighting hard to beat back.

CCR filed the suit in April 2002 against senior US officials and employees of a detention center in Brooklyn, charging that the government used racial profiling to arrest people after the September 11 attacks on the pretext of minor immigration violations, and treated them as terror subjects based on their ethnicity and religion, subjecting them to prolonged and brutal detention. The arrests targeted male Muslim non-citizens from Arab and South Asian countries who had overstayed their visas or otherwise appeared to be out of status. Under Justice Department policies devised in the aftermath of the attacks, these individuals were deemed to be of "special interest" to the government's terrorism investigation, notwithstanding the absence of any evidence linking them to terrorism. On the pretext of minor immigration violations, the INS held them in detention for months while the FBI cleared them of any links to terrorism. In the end, all were released and deported: not a single one of the hundreds of "special interest" detainees was ever charged with having any link to terrorism. The suit also charges that some detainees were improperly assigned to the Administrative Maximum Special Housing Unit, kept in solitary confinement with the lights on 24 hours a day, placed under a communications blackout so that they could not seek the assistance of their attorneys, families, and friends, subjected to physical and verbal abuse, forced to endure inhumane conditions of confinement including repeated unjustifiable strip-searches, obstructed in their efforts to practice their religion, and videotaped during meetings with their attorneys.

The Turkmen case was one of the first challenges brought to this administration's post-9/11 policies, and it neatly demonstrates most of the failures of those policies. With the intelligence agencies caught off guard by 9/11, the government relied on broad-brush, profiling methods to arrest hundreds of people and threw vast amounts of resources at investigating and detaining them, all without a shred of real evidence establishing probable cause to suspect them as terrorists. Like the warrantless NSA wiretapping, this turned out to be a huge waste of effort: of the hundreds of detainees, none turned out to have any link to terrorism. And throughout the process, the government attempted to stifle judicial scrutiny of their actions, by denying the detainees access to lawyers in the first weeks after 9/11, barring the press from their immigration court hearings, and recording their conversations with lawyers in the prison. The revelation of the NSA program indicates that this surveillance may have continued even after our clients were deported.

By intimidating clients and lawyers alike from challenging the government's unconstitutional behavior in court, this kind of surveillance is part and parcel of the government's attempts to wrap a wall of secrecy around all its counterterrorism efforts, diminishing the accountability of law enforcement by removing judicial and media oversight. The end result, predictably, has been ineffective law enforcement. Yesterday's ruling is a first crack in that wall.

May 31, 2006

POSTSCRIPT: Here is a link to Judge Gold's order, as one of the commenters requested. Apologies for the delay; an offsite fire disabled our internet connection.