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Shayana Kadidal: Government refuses to disclose possible wiretapping of civil rights lawyers

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PAUL JAY, SENIOR EDITOR, TRNN: Welcome to Real News Network. I’m Paul Jay in Washington. On October 4, the Supreme Court of the United States decided not to hear a case that had been brought to them by the Center for Constitutional Rights. Now joining us to talk about why this matters is Shayana Kadidal. He’s the senior managing attorney of the Guantánamo Global Justice Initiative at the Center for Constitutional Rights. He’s worked on a number of significant cases in the wake of 9/11, including the Center’s challenge to the detention of the prisoners at Guantánamo Bay. And he joins us today from New York City. Thanks for joining us, Shayana.


JAY: So the Supreme Court turns down, if I understand this correctly, your case demanding that the government be transparent, turn over to you records of any possible wiretapping of lawyers representing cases at Guantánamo or other people charged with terrorism. So if that’s the case, why does that matter to us? Why shouldn’t the government be able to be secret about how they conduct their investigations?

KADIDAL: Well, it’s one thing to be secretive about gathering intelligence. It’s another to be listening in to the conversations of attorneys and their clients or witnesses or other participants in litigation where those conversations are supposed to be privileged as part of an adversary system of judicial check on the executive’s power. You know, here you have lawyers who were essentially challenging all sorts of other illegal behavior in the Bush administration, and what we’re worried about is that that same administration was listening in on their confidential attorney-client communications, which is the sort of thing, you know, that just ultimately makes it much, much harder to go forward in litigation, much harder to convince clients and witnesses to be part of litigation challenging all that other illegal behavior.

JAY: So one of the arguments you must have heard is—in contrary to what you’re suggesting, is the case of Lynne Stewart, a civil rights lawyer who was convicted in 2005 of helping an imprisoned terrorist leader communicate with what his—what they called extremist Muslim followers in Egypt and elsewhere. The prosecutors alleged, or according to the court, she did it, that she passed along private messages that may have contributed to some kind of terrorist activity, and she actually was sentenced to 28 months in prison. So what do you make of this argument?

KADIDAL: She ended up getting re-sentenced to a much longer term. But what was at issue in her case was not whether or not she was allowed to have private communications with her client that related to litigation. Nobody contested that. What was at issue was the idea that she was passing on some of the things that he said to her to the outside world. You know, the government, because he had been convicted, had felt it had the right to cut off his communications with his followers back in Egypt, and it was violation of those rules that she was tried for. Right here the issue is whether or not our communications with our clients can be maintained as privileged, be kept away from the government, who is the other side in this litigation, the people that we’re actually litigating against.

JAY: Now, was the evidence against her obtained through wiretapping?

KADIDAL: I believe there was some sort of—at some point there was something that created probable cause to monitor those meetings, but I might be wrong about that. They might have been monitored as a matter of course. But I believe they did introduce some surveillance of those attorney-client meetings. Of course, what’s at issue in our case in Wilner [v. National Security Agency (NSA)] was, you know, all sorts of other communications which ordinarily wouldn’t be subject to monitoring, including talking to potential witnesses in cases, or to family members of clients, or to co-counsel that happen to be located overseas.

JAY: Now, the big issue in these cases that you’re involved with is that the wire was obtained without a warrant. Is that [inaudible]

KADIDAL: That’s right. In December 2005, The New York Times broke the story that the NSA had been carrying out this sort of warrantless surveillance in violation of a number of statutes that Congress created in the wake of Watergate to restrict unrestrained wiretapping by the government, that the NSA was carrying out this sort of wiretapping without any warrants. And they said they were doing it on calls where one end was in the United States and one end outside the United States, where one party on the line was—you know, had, in the government’s view, some degree of association with terrorism. And so we thought, well, that sounds exactly like a lot of calls that we make in the course of litigating this Guantánamo litigation or all sorts of other cases. And so that’s why we brought this Freedom of Information Act request back in 2006, essentially just seeking to see if there were any records that existed of surveillance of our privileged phone calls with our clients or witnesses or co-counsel or, you know, whoever have you.

JAY: Now, what evidence is there that there actually was any surveillance on lawyers? The defense by the government here, they said they would not confirm nor deny that anything took place. But what evidence is there that something did take place?

KADIDAL: The government claimed that if they were to confirm or deny that surveillance of lawyers did take place, then it would indicate to terrorists out there, and everyone else in the public, a little bit of something about how the government decides to target people for surveillance. But look, we already have a decent amount of evidence that lawyers were targeted for surveillance illegally by the NSA. So the best example is the Al-Haramain case currently being litigated out in San Francisco, where by accident the Treasury Department gave to lawyers for an Islamic charity some documents that showed that conversations between board members of the charity and their lawyers, US citizens in Washington, DC, those conversations had been spied on by the NSA.

JAY: There’s an actual law that the FBI demanded back again an actual log of phone calls that had been wiretapped, right?

KADIDAL: That’s right. Ironically, you know, the government in those cases—and we have a similar case out there—the government in all these cases has said you need proof that you were surveilled to even be able to have standing to maintain a suit in court. But when the Al-Haramain people said, we have this proof because you actually accidentally gave it to us, the government demanded the document back from the court, saying it was so secret that even the court couldn’t hold on to it. But that’s not the only evidence that’s out there. You know, Congress asked the Defense Department back in ’06 or ’07 whether or not lawyers were targets of the program, and the government said that they wouldn’t categorically state that lawyers were outside of the purview of who they were entitled to target. So they said they could go after attorney communications. And then, beyond that, The New York Times also reported in 2008 a number of Justice Department officials had said that privileged conversations of attorneys had been subject to monitoring.

JAY: So a lot of people assume this is old history, that this is all Bush administration activity. What is the Obama administration’s position on, number one, wireless warrantless wiretapping, and number two, the whole issue of client-attorney privilege in these cases?

KADIDAL: Right. Well, you know, candidate Obama was great on this stuff until the middle of 2008, when Senator Obama decided to vote for a new surveillance package that essentially gave some legal authority to a lot of this sort of broad-based programmatic surveillance that the NSA was doing under this program. Now, the NSA claimed that it shut the program down in January 2007. But the interesting thing about this lawsuit, which has progressed now for two years under Obama, is that the Obama administration has refused to take a position one way or the other on whether the Bush administration’s NSA program was legal. They’ve refused to say that it was legal, and they refused to say that it was not legal. They just haven’t taken a position.

JAY: In fact, it was one of the issues that people were hoping if the Obama administration was going to hold the Bush administration responsible for something, it’s—one of the most clean, clear-cut issues seemed to be the violation of the legislation surrounding FISA [Foreign Intelligence Surveillance Act] and needing to get warrants for such things. And then they just pushed on.

KADIDAL: Right. Right. I mean, remember, people were saying that Bush ought to be subject to impeachment for doing this stuff, because it seems so reminiscent of what Richard Nixon was doing. You know. And one of the worries at the time was the FISA statute was so easy for the government to use (only 5 out of 19,000 applications had been rejected over the history of the FISA statute) that it just didn’t make sense that they would go and break the law so willfully in order to get around a statute that was so convenient for them. And one of the things that we suspected from the outset was maybe they’re using it to spy on journalists, maybe they’re using it to spy on lawyers.

JAY: And that’s still not clear. And as long as they’re able to say neither confirm nor deny, we actually don’t know who was being spied on, and I assume we don’t know whether it’s still going on or not.

KADIDAL: Right. I mean, the government, you know, asserted the right to remain silent, essentially, about whether or not they have records, as well as whether or not it was ever legal. You know. So this case being rejected by the Supreme Court means that this line of litigation is over. We do have one other case out in San Francisco, which was our original challenge, seeking an order putting an end to the NSA program back in early 2006. We filed this right after The New York Times story. And in that case, we originally asked not only for an order halting the program, but also for an order that the NSA turn over to us any records that it has of surveillance and then destroy the records that are in its possession. So those claims are still alive, and we’ll be litigating those over the next few months.

JAY: Is there any indication or evidence that this wireless warrantless wiretapping might also be being aimed at domestic dissent rather than, quote-unquote, “terrorism”?

KADIDAL: Well, I mean, you never know. The FISA statute itself is very, very broad. It’s been broadened, as I said, in the middle of 2008. You know. And Senator Obama voted for that, that sort of expansion of the powers. So, you know, it is very easy to use. It’s very easy to construe even domestic activists as, quote-unquote, “agents of a foreign power” for the purposes of triggering this FISA statute. So, you know, just fighting this sort of brazenly illegal NSA surveillance with no warrant at all is just the beginning, I think, of the struggle, because the statute itself is a problem.

JAY: The real issue, then, is the FISA statute itself, which is—as you said, if 5 out of 19,000 requests are turned down, it means just about anything gets through, and if there’s no transparency and there’s always neither confirm nor deny, there’s no way to know what they’re doing.

KADIDAL: Right, and it may be a very, very long time before we have any idea of the scope of the NSA program. I mean, one of the interesting things is that in three years since it supposedly ended, we haven’t had any real whistleblowers come out, even though there are probably 40,000 NSA employees out there. But no one has divulged anything about the nature of what they were doing, with limited exceptions. We’ve heard some stories about, you know, folks in Iraq, soldiers in Iraq having their communications home monitored, including ICRC people on the ground, Red Cross people.

JAY: Just quickly, if people at home who are about to vote want to make some demands on the people they’re going to be voting for in November on this issue, what should they be telling their politicians?

KADIDAL: Well, I think, you know, Congress can demand investigations of this issue of whether or not attorney-client communications were surveilled, and the administration ought to just come clean in terms of the way it’s litigating the al-Haramain case in Oregon, and our demands as well for a full accounting of the abuses that, you know, we all think must have taken place under the NSA program.

JAY: And I guess the issue that was in 2008, when Bush was still president, in theory should come back again, which is a reformation transparency [sic] around the whole FISA act.

KADIDAL: Yeah. The act as it exists now is—it’s essentially been modified to allow a FISA court judge to rubberstamp a broad program of surveillance without particularized suspicion, which is very similar to what the NSA was doing. So, essentially, Congress rubberstamped the NSA program in the middle of 2008. And, you know, it’s long overdue for a reevaluation of that.

JAY: Thanks very much for joining us, Shayana.

KADIDAL: Thanks for having me.

JAY: And thank you for joining us on The Real News Network. And don’t forget the donate buttons in various places on the page here, because we can’t do stories like this if you don’t click on that. Thanks again for joining us.

End of Transcript

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Shayana Kadidal

Shayana Kadidal is senior managing attorney of the Guantánamo Global Justice Initiative at the Center for Constitutional Rights in New York City. He is a 1994 graduate of Yale Law School and a former law clerk to Judge Kermit Lipez of the United States Court of Appeals for the First Circuit. In his twelve years at the Center, he has worked on a number of significant cases arising in the wake of 9/11, including the Center's challenges to the detention of prisoners at Guantánamo Bay (among them torture victim Mohammed al Qahtani and former CIA ghost detainee Majid Khan), which have twice reached the Supreme Court, and several cases arising out of the post-9/11 domestic immigration sweeps.

He was also counsel in CCR's legal challenges to the "material support" statute (Holder v. Humanitarian Law Project, decided by the Supreme Court in 2010), to the low rates of black firefighter hiring in New York City, and to the NSA's warrantless surveillance program. Along with others at the Center, he currently serves as U.S. counsel to WikiLeaks publisher Julian Assange. On behalf of plaintiffs including Assange, Glenn Greenwald, and other journalists, he led litigation that ultimately resulted in public release of over 550 previously-withheld documents during the court-martial of Pvt. Bradley (now Chelsea) Manning.