July 2, 2014, New York – In response to a new report that addresses warrantless NSA searches made possible by a particular section of the Foreign Intelligence Surveillance Amendments Act (FISA), the Center for Constitutional Rights issued the statement below. The Privacy and Civil Liberties Oversight Board (PCLOB) had previously addressed the collection of communications metadata, and here looked at the implications of collection of communications content under Section 702 of FISA.
The Privacy Board’s report is disappointingly superficial with respect to the main constitutional concerns raised here. The board includes no mention whatsoever of free speech, due process, and right to counsel when analyzing the legality of the NSA’s collection of the content of communications between U.S. residents and persons of interest abroad. Deeply troubling, the report found that attorneys’ legally-privileged communications are used and shared by the NSA, CIA and FBI unless they are communications directly with a client who has already been indicted in U.S. courts, which strongly suggests that the contents of privileged attorney-client communications at Guantanamo are subject to NSA warrantless surveillance. This raises serious concerns about the fairness of the military commission system and would seem to violate court orders entered in Guantanamo habeas cases that protect attorney-client privilege.