Government spying on lawyers

On Tuesday the DC Circuit Court of Appeals heard arguments in Klayman v Obama, filed the day after the first Snowden revelation last year of NSA spying on phone call metadata.  Because I had not been following the case too closely, I thought that the case was filed only because as customers of Verizon, Klayman had standing because as a Verizon customer he was the target of dragnet surveillance without reasonable suspicion, which is against the Fourth Amendment.  But on Tuesday while listening to the oral arguments I learned something new about the case.  The case was not just about Klayman's personal calls as a Verizon customer, but spying related to a specific case he represented as a lawyer.  That case is about the death of Michael Strange (h/t emptywheel), a solider with SEAL Team VI killed in the helicopter shoot-down right after the killing of Osama bin Laden.

I have another post about the Klayman case, but I bring it up because I learned about the attorney-client privilege aspects of it on Tuesday.

Today I learned about this.

Secretive court to consider Government spying on lawyers’ communications

A court which usually sits in secret will tomorrow (Thursday) consider whether the Government should be forced to release more information regarding its surveillance of legally privileged communications between lawyers and their clients.

In a rare public hearing, the Investigatory Powers Tribunal (IPT) – which is responsible for oversight of the intelligence services – will hear further argument in a complaint brought by two families who were subjected to ‘rendition’ and torture in a joint MI6-CIA-Libyan operation.

The al Saadi and Belhadj families are concerned that the Government may have given itself an unfair advantage in a separate, High Court case concerning their mistreatment, by listening in to communications with their legal teams at charity Reprieve and solicitors Leigh Day.  Legal privilege – which protects confidential communications between lawyer and client – is a central principle in British law which helps ensure the right to a fair trial.

Tl;dr version of case: You kidnap me; you send me to torture chamber; I get out; I sue you; you spy on my calls with my lawyers. Is that OK?
— Cori Crider (@cori_crider) October 16, 2014

Then there was this on Twitter today about other recent cases of government spying on attorneys and their clients.

More cases of govt spying on lawyers & their clients: https://t.co/Sz9AKP4Zjj https://t.co/BHJsE8rMu5 by @emptywheel
— Maher Arar (@ArarMaher) November 6, 2014

Not only do we need to stop NSA dragnet spying on Americans, but we need to protect attorney-client privilege.

**Update December 17, 2014

Looking up an unrelated matter I found these articles on NSA surveillance and attorney-client privilege.

ABA Journal, September 1, 2014 link

NSA response, mentioned in above ABA article link

Jurist article, August 15, 2014 link

ACLU June, 21, 2013 bullet point #6 link

EFF February 22, 2014 link

July 2, 2014 CCR and lawyers for Guantanamo Bay detainees respond to PCLOB report link