At a Glance
On October 4, 2010, the Supreme Court declined to review the appellate court’s dismissal of the case, thus ending the litigation.
- Shayana Kadidal
- Michael Ratner
Butler Rubin Saltarelli & Boyd and the Institute for Public Representation at Georgetown University Law Center.
Twenty three attorneys who represented or had represented men detained at Guantánamo prison, including CCR attorneys.
Wilner v. National Security Agency (NSA) was a Freedom of Information Act (FOIA) lawsuit filed by CCR against the NSA and the Department of Justice, demanding that the government comply with requests to turn over all records of the NSA's warrantless wiretapping of 23 attorneys who currently represent or have represented men detained at Guantánamo. The case is part of CCR’s work challenging warrantless surveillance and the U.S. government’s efforts to inhibit meaningful legal representation at Guantánamo.
The NSA’s warrantless surveillance program was secretly authorized by the Bush Administration shortly after September 11, 2001, and it would not become public until the beginning of the administration’s second term when the New York Times broke the story. The Times delayed the story for over a year. Under the program, the NSA was authorized to monitor, without court-approved warrants, the international telephone calls and emails of people inside the United States, including privileged attorney-client communications.
Soon after the Times broke the story in December 2005, CCR submitted FOIA requests to the NSA and DOJ for records related to the policies, procedures and guidelines of the NSA program and for records of records of any surveillance of Guantánamo attorney-client communications. Attorneys working on Guantánamo cases fit the officially acknowledged profile of those subject to this domestic-spying program; the Bush Administration told Congress that attorneys were not categorically excluded from the program; and the Times reported in 2008 that "[t]he Justice Department does not deny that the government has monitored phone calls and email exchanges between lawyers and their clients as part of terrorism investigations in the United States and overseas," and that "[t]wo senior Justice Department officials" admitted that "they knew ... of a handful of terrorism cases ... in which the government might have monitored lawyer-client conversations."
In response to our FOIA requests, the NSA and the DOJ refused to acknowledge the existence of documents related to whether the individual lawyers were being subjected to warrantless surveillance. In response, CCR filed suit, arguing that our ability to represent our clients was deeply compromised by not knowing whether the government was spying on our communications and passing on information, including our litigation strategies, to opposing counsel. The lawsuit sought access to records showing whether the government had intercepted privileged attorney-client communications.
"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. 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."
– Gitanjali Gutierrez, plaintiff and former CCR attorney.
Along with CCR attorneys, plaintiffs in the case included law professors and partners at prominent international law firms who also represent men at Guantánamo. Together we submitted declarations detailing the obstacles we have faced in trying to properly represent our clients due to the existence of the NSA program, including having to travel overseas to meet witnesses face-to-face in order to ensure confidentiality and uphold the attorney-client privilege.
The government’s position was that it did not have to confirm or deny the existence of records relating to ongoing or completed electronic surveillance of the Guantánamo attorneys named in the suit. This claim was accepted by the district court and affirmed on appeal in the Second Circuit. In response, we asked the Supreme Court to review the government’s position given that any such surveillance would necessarily be unconstitutional and illegal. The Court refused to hear the case.
The Obama administration never took a position on whether the Bush administration’s NSA surveillance program was legal. In this case they claimed that even if it was illegal, the government has the right to remain silent when asked whether or not the NSA spied on lawyers. CCR has also challenged the legality of this program in CCR v. Obama (formerly CCR v. Bush).