New Assaults on American Law

In the name of safety, the feds have spied on lawyers negotiating with them, lied to lawyers whose clients they're prosecuting, and misrepresented their behavior to the Supreme Court.

Jeff Schuler/FlickrJeff Schuler/FlickrIn the months since Edward Snowden revealed the nature and extent of the spying that the National Security Agency (NSA) has been perpetrating upon Americans and foreigners, some of the NSA's most troublesome behavior has not been a part of the public debate. This behavior constitutes the government's assaults on the American legal system. Those assaults have been conducted thus far on two fronts, one of which is aimed at lawyers who represent foreign entities here in America, and the other is aimed at lawyers who represent criminal defendants against whom evidence has been obtained unlawfully and presented in court untruthfully.

Investigative reporters at The New York Times recently discovered that the NSA has been listening to the telephone conversations between lawyers at a highly regarded Chicago law firm and their clients in Indonesia. The firm, Mayer Brown, has remained publicly silent about the revelations, as has its client, the government of Indonesia. But it is well known that Mayer Brown represents the government of Indonesia concerning trade regulations that govern exports of cigarettes and shrimp to the U.S. The lawyers on the other side of the bargaining table from Mayer Brown work for the federal government, which also employs, of course, the NSA.

Can the NSA lawfully tell lawyers for the government who are negotiating with Mayer Brown lawyers what it overheard between the Mayer Brown lawyers and their client? The answer, incredibly, is yes. Federal rules prohibit the NSA from sharing knowledge with lawyers for the federal government only about persons who have been indicted. In this case, Mayer Brown is attempting to negotiate favorable trade relations between Indonesia and the U.S., and the lawyers for the U.S. have the unfair advantage of knowing in advance the needs, negotiating positions, and strategy of their adversaries. In the Obama years, this is how the feds work: secretly, unfairly, and in utter derogation of the attorney-client privilege.

For 100 years, that privilege—the right of lawyers and their clients to speak freely and without the knowledge of the government or their adversaries—has been respected in the U.S., until now. Now we have a lawyer who, as president, uses the NSA to give him advance warning of what his office visitors are about to ask him. And we have lawyers for the federal government who work for the president and can know of their adversaries' most intimate client communications.

This is profoundly unfair, as it gives one side a microscope on the plans of the other. It is unwise, too, as clients will be reluctant to open up to counsel when they know that the NSA could spill the beans to the other side. In the adversarial context, for the system to work fairly and effectively, it is vital that clients be free to speak with their lawyers without the slightest fear of government intrusion, particularly when the government is on the other side of the deal or the case.

If you have spoken to a lawyer recently and if that lawyer is dealing with the federal government on your behalf, you can thank the constitutional scholar in the Oval Office for destroying the formerly privileged nature of your conversations.

But that is not the only legal protection that President Obama has destroyed. In 2012, the U.S. Supreme Court heard oral argument in a case in which journalists in the pre-Snowden era challenged the government's spying on them. The government won the case largely because it persuaded the court that the journalists did not have standing to bring the lawsuit because their fears of being spied upon were only hypothetical: They suspected that their communications with their sources were being monitored, but they couldn't prove it. In this post-Snowden era, we now know that the journalists in that case were being spied upon.

Nevertheless, during the oral argument in that case, government lawyers told the high court that should government prosecutors acquire from the NSA evidence of criminal behavior against anyone whom they eventually would prosecute and should they wish to use that evidence in the prosecution, the Justice Department would inform defense counsel of the true source of the evidence so that the defendant would have the ability to challenge the evidence. Yet last week, in a case in federal court in Oregon, the same Justice Department that told the highest court in the land last year that it would dutifully and truthfully reveal its sources of evidence—as case law requires even when the source is an NSA wiretap—told a federal district court judge that it had no need or intention of doing so.

If this practice of using NSA wiretaps as the original source of evidence in criminal cases and keeping that information from the defendants against whom it is used is permitted, we will have yet another loss of liberty. Federal law requires that criminal prosecutions be commenced after articulable suspicion about the crime and the defendant. Prosecutions cannot be commenced by roving through intelligence data obtained through extra-constitutional means. That is the moral equivalent of throwing a dart at a dart board that contains the names of potential defendants and prosecuting the person whose name the dart hits.

For the past 75 years, federal prosecutors have not been permitted to use unlawfully obtained evidence in criminal cases, and they have been required to state truthfully the sources of their evidence so that its lawfulness can be tested. This rule generally has served to keep law enforcement from breaking the laws it has sworn to uphold by denying to its agents the fruits of their own unlawful activity.

Liberty is rarely lost overnight. It is lost slowly and in the name of safety. In the name of keeping us safe, the feds have spied on the lawyers who negotiate with them, lied to the lawyers whose clients they are prosecuting, and misrepresented their behavior to the Supreme Court. As far as the public record reveals, they have not corrected that misrepresentation. They have done all of this in utter defiance of well-settled law and procedures and constitutional safeguards.

What will they do next?

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  • Fist of Etiquette||

    Now we have a lawyer who, as president, uses the NSA to give him advance warning of what his office visitors are about to ask him.

    This president is a constitutional scholar. When he does something, that means it is not illegal.

  • sarcasmic||

    The question nobody asks is which constitution he is a scholar of.

  • Invisible Finger||

    Birther!

  • umh||

    Visible prick!

  • Pompey||

    "The president deserves to have his team in place, and there are no more major objections to the qualifications of any of these nominees"

  • Ted S.||

    What will they do next?

    How won't they shit on the Constitution?

  • BSubversive.com||

    Don't be so vulgar Ted, that's just Obama taking his morning constitutional in the oval office privy so he can study it.

  • sasob||

    What will they do next?

    They will do as they please, of course, because that is what despots do.

  • sasob||

    Despots and criminals, that is.

  • ||

    Liberty is rarely lost overnight. It is lost slowly and in the name of safety

    Or very quickly at the end of a drone strike after they tapped your lawyer's phone and got your location.

  • wareagle||

    with this administration, outrage died long ago. I doubt there is anything the White House could do that would even be surprising at this point.

  • UnCivilServant||

    They could appologize and resign en masse. That would be pretty surprising.

  • Rich||

    "We're sorry our message, continually and ever more clearly repeated, has fallen on so many deaf ears. We are therefore resigning from our positions in order to form a tighter, more forceful, organization that will not only *nudge* America to *Lean* Forward, but *require* America to *Leap* Forward into the glorious future that is our, that is to say, *her* destiny."

  • Mainer2||

    A Leap Forward...that sounds Great.

  • RussianPrimeMinister||

    I'd like to make sure I have this right.

    Authorities (any) can now use NSA data to prosecute anybody anywhere for whatever crime the NSA dragnet manages to dredge up?

    And they can spy on my conversation with my counsel, when I speak to him about how to defend against these charges?

    Oh, good. For a second there, I was concerned I might have lost a few freedoms. Nothing to see here, folks, move along.

  • Brian D||

    Change we can believe in.

  • wareagle||

    if you like your freedoms, well, tough shit. They're right next to that insurance policy you used to have. But hey, look at the bright side - both were useless anyway and the govt will issue you new, improved freedoms.

  • sarcasmic||

    The freedom to ask permission and obey orders.

  • MoMark||

    “and the government will issue your new improved freedoms.”

    I love that! But what’s frightening is they (the democrats) no longer even hide this propensity. We now have “Freedom from want,” on steroids.

  • iEagleHammer||

    Ever hear of a faraday cage? http://en.wikipedia.org/wiki/Faraday_cage

    Time to put one in your office.

  • sasob||

    Probably wouldn't help except in the case of old fashioned bugs. If you use a cell phone, the government can set up a phony cell tower to intercept your communications. Better hope your encryption is good instead.

  • sasob||

    Of course, a cell probably wouldn't work at all inside a Faraday cage either.

  • iEagleHammer||

    That was my point, hold the communication in person. Extremely inconvenient, but at least it's private.

  • gimmeasammich||

    What about the Cone of Silence? Agent 86 seemed to favor it enough.

  • Rich||

    Now we have a lawyer who, as president, uses the NSA to give him advance warning of what his office visitors are about to ask him.

    Oh, lighten up, Judge. The president wisely prepares so he can provide those visitors with the most efficient and informative visit experiences possible.

  • sasob||

    Got to wonder what his "preparations" were when he met with Boehner the other day.

    I also wonder what the NSA gave him on Justice Roberts to persuade him to change his mind about Obamacare.

  • Heroic Mulatto||

    OT:Gunmen seize government buildings in Ukraine's Crimea, raise Russian flag

    Everyday Ukraine is closer to civil war. Sadly, demographics and geography might have led to an easy and peaceful division like between Slovakia and the Czech Republic.

  • Rich||

    Yeah, I don't see this ending well.

    I sure hope Groovus and his SO are OK.

  • Heroic Mulatto||

    Indeed.

  • Agile Cyborg||

  • gimmeasammich||

    Did they hire Gob Bluth to destroy them?

  • Radioactive||

    FYTW

  • MoMark||

    I can’t help but wonder what would happen if the Huffington Post ever ran this article? How many people would read it, how many people would comment, and would their heads explode? Personally, I think an article like this would stir things up and would be good for business, but it aint gonna happen! Nobody wants any “pins” near a big balloon.

  • Ross Adams||

    It'd be nice if all parties involved were struck simultaneously with collective crippling guilt and just offed themselves.

  • lisa901||

    Google is the #1 internet site in the world. Start working at home with Google! Just work for few hours & have more time with friends & family. I earn up to $500/week. It's a great work at home opportunity. I can't believe how easy it was once I tried it out. Linked here www.Pow6.com

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