Government Brief Says Confirming Whether Guantánamo Lawyers are Illegally Spied Upon is National Security Threat

June 5, 2008, New York – Late yesterday, the Center for Constitutional Rights (CCR) received the government's reply brief in their case demanding 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. The brief states that confirming or denying the illegal wiretapping would have "exceptionally grave consequences for the national security of the United States."

Wilner v. NSA is a Freedom of Information Act (FOIA) lawsuit on behalf of 23 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 illegal warrantless wiretapping program that began shortly after September 11, 2001.

Not only have both the National Security Agency and the Department of Justice refused to turn over documents, they have refused to acknowledge whether or not those documents exist. The government brief invoked the threat of North Korea and Iran, writing that "any information available to a FOIA requester is similarly available to 'North Korea's secret police and Iran's counterintelligence service too.' These and other 'hostile entities,' including agents of al Qaeda and its affiliates, would no doubt be greatly interested in an official and public confirmation or denial whether they are any other individual…were or were not subjected to surveillance under the TSP."

"This filing lays bare the ridiculous reasoning used by the government to justify its so-called war on terror," said CCR Executive Director Vincent Warren. "Lumping American attorneys in with North Korea and Iran is laughable, but it has serious consequences for the men at Guantánamo that we represent."

In May of this year, the 23 attorneys who are plaintiffs in Wilner submitted declarations opposing the government's motion for summary judgment. The declarations detailed the obstacles they have faced in trying to properly represent their clients due to the existence of the NSA program, in some cases including facts they believe indicate they are being surveilled.

As attorneys whose jobs involve suing the federal government and working with clients and witnesses located overseas, they believe they fit the profile of individuals who would be spied on under the warrantless program as described by the government. The likelihood that they are under surveillance has forced them to turn to more expensive substitutes for phone calls and emails, such as traveling overseas to meet witnesses face-to-face in order to assure confidentiality and attorney-client privilege.

"As an attorney, I need to be able to assure my clients, their family members, and other attorneys overseas that my communications with them are protected," said CCR attorney and plaintiff Gitanjali Gutierrez. "It is a tremendous intrusion on my ability to adequately represent my clients if I am not able to guarantee something that basic – that the government is not eavesdropping on our calls."

Attorneys say in the declarations that they have had guards at Guantánamo mention personal information they had not shared, been told by other government officials that it was very likely they were being wiretapped, and in general believe that their privileged communications are being reviewed by the government.

CCR filed the lawsuit in the U.S. District Court for the Southern District of New York on May 17, 2007. Chicago-based law firm Butler Rubin Saltarelli & Boyd and the Institute for Public Representation at Georgetown University Law Center are co-counsel in this case.

For more information on Wilner v. NSA and complete filings, see the Wilner v. NSA case page.

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 Guantanamo, 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 on December 5, 2007.

The Center for Constitutional Rights works with communities under threat to fight for justice and liberation through litigation, advocacy, and strategic communications. Since 1966, the Center for Constitutional Rights has taken on oppressive systems of power, including structural racism, gender oppression, economic inequity, and governmental overreach. Learn more at


Last modified 

December 17, 2009