The Tepid NSA-American Bar Association “Dialogue” Around Spying on Lawyers

It’s another troubling example in a frustrating trend: despite repeated and pointed calls for answers, the NSA is still relying on word games and equivocation to avoid answering recent questions surrounding potential surveillance of privileged attorney-client communications. The New York Times reported in late February that an American law firm’s privileged attorney-client communications were monitored by the Australian Signals Directorate and potentially shared with the NSA. A few weeks ago, we wrote about the legal community’s response to this issue, highlighting a February 20 letter from the president of the American Bar Association (ABA), James Silkenat, to outgoing NSA director General Keith Alexander and NSA General Counsel Raj De. On March 10, General Alexander wrote back, but the NSA’s letter can hardly be called a response. We hope that the conversation is not over, because experience has shown that when the NSA has the last word, civil liberties lose.

The ABA has been deferential to the NSA’s authority to conduct surveillance, and its letter requested only the information necessary to be able to effectively represent clients. Mr. Silkenat underscored that the ability to communicate without fear of surveillance is essential to the attorney-client relationship, and that without it our legal system cannot function. In order to help avoid this, he asked the NSA to “further clarify the principles and policies” regarding the NSA’s handling of potentially privileged information.

The NSA’s response was underwhelming; of course they’re collecting privileged communications but, trust them, they’re not peeking (except when they need to). The entire legal community should view the NSA’s response as an insult. When the ABA asked for clarification on what procedures are undertaken to uphold the attorney-client privilege, the NSA’s answer was the following:

Such steps could include requesting that certain collection or reporting be limited; that intelligence reports be written so as to prevent or limit the inclusion of privileged material and to exclude U.S. identities, and that dissemination of such reports be limited and subject to appropriate warnings or restrictions on their use.

If this sounds familiar, it’s because it is almost word for word the same statement quoted in the Times article nearly a month earlier, where it was credited to NSA spokeswoman Vanee M. Vines. In addition to this statement, the NSA’s letter points the ABA to declassified privacy procedures and Executive Order 12333. In other words, the NSA provided no new information to the ABA, this country’s biggest bar association. Empty assurances that the NSA takes attorney-client privilege seriously were peppered throughout the letter, but the meat of the NSA’s letter was “You know what we’re doing. You aren’t any more important than any other target of surveillance. Just trust us.”

More disappointing than the NSA’s letter, however, is the ABA’s response. Mr. Silkenat released a paragraph long response on March 11, in which he stated:

The American Bar Association appreciates the NSA’s expression of respect for the attorney-client privilege and looks forward to continuing a constructive dialogue with the NSA to ensure that American lawyers and their clients have confidence that their privileged communications are appropriately protected. The attorney-client privilege is fundamental to our system of justice and critical to the work of lawyers, who rely on the candor of their clients.

The NSA’s letter to the ABA was not an expression of respect, nor was it the beginning of a constructive dialogue. Instead, the ABA meekly accepted the NSA’s nonchalant non-denial of unconstitutional behavior by that aggressively unconstitutional spy agency. Mr. Silkenat may look forward to continuing a constructive dialogue, but the rest of us are left asking, “What dialogue?” Will the ABA and Mr. Silkenat be content to quietly accept the NSA’s assurances, or will the ABA make a follow-up statement that the NSA must provide more information?

The only real dialogue now can be in courtrooms and in Congress. The ABA has an advocacy branch in Washington D.C., the Governmental Affairs Office (GAO). The GAO should be standing up for legislation that reforms surveillance laws. The ABA as an organization should also be applauding and supporting efforts like First Unitarian Church of Los Angeles v. NSA and Jewel v. NSA.

Attorneys—and the organizations that represent them—must be as impassioned about privacy as they are about winning cases. If you are a member of the ABA, contact the GAO and tell them to support real reform to NSA surveillance. The USA FREEDOM Act is one step in the right direction, though additional reforms are needed, whereas the FISA Improvements Act would attempt to legalize the worst aspects of NSA surveillance. Even if you aren’t a member of the ABA, you can take action today against this kind of unconstitutional surveillance by telling your elected representatives to change the laws that make it possible.