CCR Argues in Court Government Cannot Keep Secret Whether It Spied on Guantánamo Attorneys

For Immediate Release

CCR Argues in Court Government Cannot Keep Secret Whether It Spied on Guantánamo Attorneys

FOIA Exemptions Not Meant to Shield Illegal Activity, Say Attorneys

WASHINGTON - The Court of Appeals heard arguments today in the Center for Constitutional Rights (CCR) warrantless surveillance case, Wilner v. National Security Agency (NSA).
CCR and co-counsel argued that the executive branch must disclose
whether or not it has records related to wiretapping of privileged
attorney-client conversations without a warrant.

Said Kathryn Sabbeth, Assistant Professor of Law at the University of North Carolina at Chapel Hill School of Law,
who argued the case, “No argument could be made that targeting American
lawyers on American soil to obtain information about their clients was
legal, and indeed when counsel for the government was pressed for an
explanation he offered none.”

The rights attorneys appealed the government’s Glomar assertions,
meaning its refusal to either confirm or deny the existence of records
sought in Freedom of Information Act (FOIA) litigation relating to the
NSA warrantless wiretapping program and surveillance of attorneys
representing detainees at Guantánamo.

“Our work with our clients may have been deeply compromised by illegal
surveillance carried out by the last administration,” said Shayana Kadidal, Senior Managing Attorney of the CCR Guantánamo Global Justice Initiative.
“The new administration has no legal basis for refusing to come clean
about any violations of attorney-client privilege by the NSA.”
 
During arguments, the government’s counsel stated, “We take no position
on the legality of the TSP,” referring to the Bush administration’s
Terror Surveillance Program.

The case is a FOIA lawsuit on behalf of 23 attorneys, including CCR
staff attorneys Gitanjali S. Gutierrez and Wells Dixon, 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 the prior administration shortly after September 11,
2001. CCR, the Institute of Public Representation at Georgetown
University Law Center and the Chicago law firm Butler Rubin Saltarelli
& Boyd filed the case in the U.S. District Court for the Southern
District of New York on May 17, 2007. The district court ruled the NSA
could refuse to say anything either confirming or denying the existence
of any related materials because to do so “would reveal information
about the NSA's capabilities and activities.”

Plaintiffs argued that the program and many details about it have
already been made public, and a confirmation or denial that the lawyers
were subject to surveillance cannot possibly harm NSA’s
intelligence-gathering abilities. The government cannot refuse to
confirm or deny that these records exist, they said, because it would
be unconstitutional and illegal to be eavesdropping on the lawyers
without a warrant, and FOIA exemptions cannot shield unconstitutional
or illegal conduct.

For more information on Wilner v. NSA, click here.

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 Guantánamo,
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 and is actively working to resettle
Guantánamo’s refugees.

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The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change.

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