Legal Village

Seeing shadows

Posted 21/07/2008 by Bar Talk

Note to foreign clients of US law firms - this call may be monitored.

With all the secrecy surrounding the US detention centre at Guantanamo Bay, it is no surprise that lawyers representing detainees are seeing shadows - or at least worrying about the Government eavesdropping on their conversations with clients at the prison. Now the detainees' lawyers say the spectre of wiretapping means they cannot promise confidentiality to their non-Guantanamo clients either. These highly sensitive lawyers are also worried about their colleagues, with whom they share phone and computer networks.

Twenty-four Guantanamo lawyers sued the National Security Agency (NSA) and the US Department of Justice last year in federal court in Manhattan, after the Government largely rebuffed a Freedom of Information Act request for records of any surveillance of their communications. The plaintiffs include lawyers from Dorsey & Whitney, Holland & Hart and Schiff Hardin.

In May, in response to the Government's refusal to confirm or deny whether they are being monitored, the lawyers filed declarations detailing their concerns. The evidence they submitted was light on specifics. Lead plaintiff Thomas Wilner, a partner at Shearman & Sterling, wrote that US officials privately tipped him off about possible surveillance, but otherwise the lawyers reported no voices breaking into routine conversations, no use of details gleaned from private phone calls in Government cases - nothing.

But the lack of evidence has not slowed their suspicions. Department of Justice officials have confirmed that overseas communications with suspected terrorists and their affiliates, including between lawyers and their clients, are subject to warrantless wiretapping.

Paranoid or not, the lawyers say they just cannot take the uncertainty. "The Government's refusal to confirm or deny whether it has engaged in surveillance of my communications infringes on my ability to represent my clients and comply with my ethical obligations to them," writes Pepper Hamilton partner Charles Carpenter in his court declaration. The NSA calls the declarations "irrelevant and speculative."

With the Government refusing to put their worries to rest, many of the lawyers have come up with counter-measures. One partner at an international firm, who asked to remain anonymous, said his colleagues will contact foreign clients about sensitive matters. John Chandler, a partner at Sutherland Asbill & Brennan, says he had his office in Atlanta screened for wiretaps (he didn't find any).

For other Guantanamo lawyers, it is business as usual. Several plaintiffs say the possibility that the Government is listening has little practical effect on their regular dealings with clients. Many said their conversations are simply too dull to be of interest to anybody. "The fact is, I'm too boring," admits Carpenter.

By David Bario