Violations of Attorney-Client Privilege: Unconstitutional and Nothing New
Politically motivated surveillance is a prominent feature of today’s National Security State and is part of a playbook of tactics aggressively used by police against Muslims, dissidents, social change movements, and other targeted groups and individuals. Less known, but no less offensive or threatening is the government’s ongoing attacks against the sanctity of attorney-client privilege.
Efforts by government to monitor communications between attorneys and their clients – a violation of the Sixth Amendment to the U.S. Constitution – is unfortunately nothing new. State-sanctioned surveillance of lawyers and legal groups like the National Lawyers Guild (NLG) has been going on for decades. And, recent disclosures by The Intercept of meta-data and recorded communication between prisoners and their attorneys indicate that such Constitutional violations are still being carried out today, literally as we speak.
The game is rigged
Last month, The Intercept reported that a leading phone service provider for the nation’s prisons and jails is recording millions of conversations, including attorney-client communication.
According to The Intercept, an anonymous hacker was able to obtain more than 70 million prisoner phone records from Securus Technologies over a two-and-a-half year period between 2011 and 2014. At least 14,000 of those records were calls made by prisoners to their attorneys, communication considered to be inviolably confidential by American jurisprudence.
Last year, the Austin Lawyers Guild, four of its members, and the advocacy group Prison Justice League sued Securus, accusing the Dallas, Texas-based company of storing and taping confidential attorney-client communication which was then “procured” and listened to by prosecutors.
Criminal defense lawyer Scott Smith told The Intercept that violating the privacy of attorney-client communication “rigs the adversarial legal process in favor of the state,” and gives prosecutors significant tactical advantages in the courtroom.
The most massive breach of the attorney-client privilege in modern U.S. history
Protecting attorney-client confidentiality is the oldest privilege in the U.S. legal system and dates back to the Roman Republic. Any violation of this privilege undermines the right to effective assistance of counsel, the ability of an attorney to adequately represent a client. Our legal system is based on the ability of arrestees, defendants and plaintiffs to speak frankly and openly with their attorneys without fear that their communication will be used against them.
Even though Securus promises that each call “will be recorded and monitored, with the exception of privileged calls,” thousands of calls made by prisoners to their attorneys were not only collected and stored, but also hacked.
Despite living in a National Security State, beset with invasive and widespread surveillance, the attorney-client privilege should remain unaffected. However, David Fathi, director of the ACLU’s National Prison Project told The Intercept that the Securus hack “may be the most massive breach of the attorney-client privilege in modern U.S. history.”
Based on the evidence of repeated Sixth Amendment violations by the state, this breach of privilege should be troubling but not surprising. Lest we misunderstand the recent disclosures of attorney-client communication as an isolated occurrence based on technological or administrative mistakes, it’s important for us to examine the propensity of the state in this regard.
A history of abuse
For example, after the NLG filed a lawsuit in 1977 against the FBI and numerous other federal agencies, it was revealed that over the course of four decades—from 1940-1975—the FBI had spied on the organization by deploying hundreds of informants, burglarizing the offices of its attorney-members, and wiretapping the phones of law firms, among a host of other abuses.
And, while the National Security Agency (NSA) is notorious for today’s sweeping surveillance programs made public by Edward Snowden in 2013, the NSA was collaborating with the telecommunications industry as far back as the 1970s when its domestic spying program was discovered. Congressional investigations by the Senate Select Committee on Intelligence (Church Committee) and the Senate Subcommittee on Constitutional Rights in the early-to-mid 1970s found that the NSA, FBI, CIA, and even the military had operated a longstanding surveillance and counterintelligence program (COINTELPRO) targeting political dissidents and their attorneys.
Resultant reforms from that era included passage of the Foreign Intelligence Surveillance Act (FISA), which established a secret court to oversee the government’s domestic intelligence-gathering. But, it has become obvious that FISA oversight was inadequate to prevent the type of far-reaching and illegal surveillance that plagues us today.
The pretext becomes terrorism
With the advent of 9/11, the government expanded its surveillance programs against Americans, and lawyers were no exception. Under the pretext of fighting terrorism, the government has been implicated in eavesdropping on the lawyers of Guantánamo Bay detainees, as well as NLG attorney Lynne Stewart who was convicted in 2005 of conspiracy and material support for terrorism based in part on private communication with her client Sheikh Omar Abdel Rahman, according to the NLG report Breach of Privilege: Spying on Lawyers in the United States.
In a return to COINTELPRO-era-spying on political dissidents, the government raised the stakes by using the Army to infiltrate several political organizations, including an antiwar group from Olympia which was using nonviolent tactics to obstruct military shipments at the Ports of Olympia and Tacoma. Army analyst John Towery portrayed himself as an activist and, from 2006-2009, gathered information that he turned over to a Washington State fusion center which was then used by local law enforcement to preemptively and unlawfully arrest activists.
In Panagacos v. Towery, a lawsuit filed in 2010 by NLG attorney Larry Hildes, it was revealed that Towery gained access to a secure attorney-client listserv where defendants discussed legal strategy, and where draft pleadings were disseminated. Towery admitted to taking sensitive information from the listserv vital to a pending criminal trial in 2007 and transmitting it to fusion center officials who then gave it to prosecutors, forcing a mistrial in a case the defense was winning handily. The defendants were retried, but the case was later dismissed for prosecutorial misconduct.
Impact and lessons from violations of attorney-client privilege
Stories of mass surveillance can often seem abstract and impersonal, but the Panagacos lawsuit shows how violations of attorney-client privilege can have a very real and lasting effect. Indeed, Breach of Privilege argues that there are grave consequences to such violations, emphasizing that “Surveillance of legal professionals has a chilling effect on legal work, dissuades attorneys from taking on political clients, diminishes their ability to represent people, and requires that time-consuming and expensive precautions be taken to ensure that communications between attorneys and clients are secure.”
Unfortunately, legal challenges to violations of attorney-client privilege have generally failed to stop the abuse. And, given the vast resources of the state, our options are limited. However, it’s important that we better understand and educate others on the historical and contemporary abuses of government and corporate spying, especially in terms of their consequences on the legal community and those caught up in the legal system.
Michael Ratner, President Emeritus of the Center for Constitutional Rights, had it right when he told The Real News Network that, "There has to be an absolute end to mass surveillance, whether it's by private companies or by the government...The worst situation would be to have superficial reforms...the NSA has to be torn apart root and branch."
In the meantime, we must be mindful of our own online communication and use secure open-source encryption programs to protect privileged electronic communication whenever possible and practical.
Kris Hermes is a longtime activist, legal worker, and author of Crashing the Party: Legacies and Lessons from the RNC 2000. He currently works as the Mass Defense Coordinator for the National Lawyers Guild.