Judge Rules Government Can Keep Secret Whether It Spied on Guantánamo Attorneys

June 26, 2008, New York – Late yesterday, a federal court judge ruled that the government did not have to disclose whether it was illegally spying on Guantanamo attorneys’ conversations. The judge ruled that the National Security Agency (NSA) could not be forced to reveal information about its domestic spying program because, “confirming or denying whether plaintiffs' communication with their clients has been intercepted would reveal information about the NSA's capabilities and activities.”

Plaintiffs had argued that the government cannot use the Freedom of Information Act (FOIA) to shield illegal surveillance of attorneys. In response, 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.”

“This ruling allows the government to hide its illegal activities behind far-fetched claims of national security,” said CCR Executive Director Vincent Warren. “Not only does the public have the right to know, but our ability to represent our clients is deeply compromised by not knowing whether our conversations are being listened to and the information passed on to opposing counsel. We are investigating our next steps.”

The Center for Constitutional Rights (CCR) 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 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 warrantless wiretapping program authorized by President Bush shortly after September 11, 2001.

"Yesterday's decision is like a footnote to the Supreme Court's Guanatanamo decision, adding that while we have the right to represent detainees in courts here in the United States, the government can keep secret whether it is listening to the privileged discussions we have on the phone about those cases,” said CCR Senior Attorney Shayana Kadidal. “And we won't ever have a right to know about it."

"This decision is obviously very troubling, as it enables the government to intercept attorney-client communications with impunity, regardless of the legality of such conduct," said Mark Schwartz, an attorney at the law firm of Butler Rubin, co-counsel in his case.

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 victory before the Supreme Court that guaranteed a constitutional right to habeas corpus.


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 ccrjustice.org.


Last modified 

December 17, 2009