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CCR Appeals Ruling That Government Can Keep Secret Whether It Spied on Guantánamo Attorneys

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Government Must Disclose Whether It Has Records Related to Wiretapping of Privileged Attorney-Client Conversations Without a Warrant

CONTACT: press@ccrjustice.org

December 12, 2008, New York – Today, the Center for Constitutional Rights (CCR) appealed to the Second Circuit Court of Appeals the decision of a federal court judge who ruled that the government did not have to disclose whether it was illegally spying on Guantanamo attorneys’ conversations.

The appeal called on the Court of Appeals to reverse the district court’s ruling that the NSA and DOJ did not need to disclose whether or not they had records related to the wiretapping of the lawyers.  As the brief argued, the program and many details about it have already been made public, and a confirmation or denial that the lawyers were subject to surveillance “cannot possibly harm NSA’s intelligence-gathering.”  Further, the brief asserts, the government cannot refuse to confirm or deny that these records exist because it would be unconstitutional and illegal to be eavesdropping on the lawyers without a warrant, and FOIA exemptions cannot shield unconstitutional or illegal conduct.

“As attorneys, our ability to represent our clients is deeply compromised by not knowing whether our conversations are being spied on and whether the information is being passed on to opposing counsel,” said plaintiff and CCR attorney Gitanjali Gutierrez.

In the district court decision, Judge Denise Cote ruled in June that the National Security Agency (NSA) could avoid admitting or denying the existence of records of surveillance of the Guantánamo lawyers because, “confirming or denying whether plaintiffs' communication with their clients has been intercepted would reveal information about the NSA's capabilities and activities.” In addition, the court said that because of the breadth of a statute protecting the NSA’s secrecy, “the Court need not address plaintiffs’ substantive arguments concerning the TSP’s illegality,” referencing the warrantless surveillance program.

“This ruling must not stand,” said CCR Executive Director Vincent Warren. “We cannot allow the government to hide its illegal activities behind far-fetched claims of national security any longer.”

“Congress never intended for FOIA to conceal unconstitutional government activity,” said Kathryn Sabbeth, Staff Attorney at the Institute for Public Representation at Georgetown Law Center.

The Center for Constitutional Rights (CCR), the Institute of Public Representation at Georgetown University Law Center and the Chicago law firm Butler Rubin Saltarelli & Boyd filed the case to demand that the government comply with requests to turn over all records related to the NSA’s warrantless wiretapping of attorneys who represent detainees at Guantánamo. Wilner v. NSA is a FOIA lawsuit on behalf of 24 attorneys – including CCR staff attorneys Gitanjali Gutierrez and Wells Dixon, as well as law professors and partners at prominent international law firms – who believe they may have been the subjects of the NSA's warrantless wiretapping program authorized by President Bush shortly after September 11, 2001. Plaintiffs filed the lawsuit in the U.S. District Court for the Southern District of New York on May 17, 2007.
For more information on Wilner v. NSA and complete filings, go here.

CCR has led the legal battle over Guantanamo for the last six years – sending the first ever habeas attorney to the base and sending the first attorney to meet with a former CIA “ghost detainee.” CCR has been responsible for organizing and coordinating more than 500 pro bono lawyers across the country in order to represent the men at Guantánamo, ensuring that nearly all have the option of legal representation. CCR represented the detainees with co-counsel in the most recent argument before the Supreme Court and is actively working to resettle Guantánamo’s refugees.

The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change.