Lawyers Fear Monitoring in Cases on Terrorism
By Philip Shenon
Portland, Oregon - Thomas Nelson, an Oregon lawyer, has lived in a state of perpetual jet lag for the last two years. Every few weeks, he boards a plane in Portland and flies to the Middle East to meet with a high-profile Saudi client who cannot enter the United States because he faces charges here of financing terrorism.
Mr. Nelson says he does not dare to phone this client or send him e-mail messages because of what many prominent criminal defense lawyers say is a well-founded fear that all of their contacts are being monitored by the United States government.
Because he is constantly shifting time zones to see his client face to face, "I just don't sleep normally anymore," Mr. Nelson said. "But I don't have a choice. It's very clear to me that anything I say to my client or to other lawyers in this case is being recorded."
Across the country, and especially here in Oregon, it seems, lawyers who represent suspects in terrorism-related investigations complain that their ability to do their jobs is being hindered by the suspicion that the government is listening in, using the eavesdropping authority it obtained - or granted itself - after the Sept. 11 terrorist attacks.
Steven T. Wax, a Portland lawyer involved in several terrorism cases, said he has told clients to assume that everything they say to him is being secretly monitored. Mr. Wax said he "self-censors" his e-mail messages, even to other lawyers and friends. The situation, he said, has elements of "Kafka and ‘Alice in Wonderland.' "
The Justice Department does not deny that the government has monitored phone calls and e-mail exchanges between lawyers and their clients as part of its terrorism investigations in the United States and overseas.
But in cautiously worded court statements, the department says that if there has been surveillance of lawyers involved in terrorism cases, it has been handled in strict accordance with federal law and with the Constitution's promise of a criminal defendant's right to counsel.
"We do conduct ourselves ethically and adhere to our responsibilities under the rules of ethics," a Justice Department lawyer, Anthony J. Coppolino, told a federal judge here in a court hearing this month on the issue.
The department's promises of ethical conduct have met with special skepticism in Oregon, where lawyers believe they have seen proof of secret government monitoring.
In a terrorism-financing investigation centered on the offices of an Islamic charity here, the government mistakenly provided defense lawyers in August 2004 with what the lawyers say was a logbook of intercepted phone calls between the charity's lawyers in Washington, D.C., and clients in Saudi Arabia.
The charity's lawyers say the logbook, which was stamped "top secret," appeared to reflect eavesdropping under the National Security Agency's warrantless wiretapping program.
After the government realized its mistake, defense lawyers were ordered to return all copies of the logbook to the Federal Bureau of Investigation and were warned that they could face prosecution if they disclosed its contents.
It is believed to be the only case in which nongovernment lawyers might have seen physical evidence of the security agency's so-called terrorist surveillance program, which has been called unconstitutional by many legal scholars, lawmakers and civil liberties groups because it allowed the monitoring of the phone calls of Americans without a court's permission.
Sean M. Maher, a New York lawyer who is a co-chairman of the national security committee of the National Association of Criminal Defense Lawyers, said he knew talented private lawyers who were refusing to take on terrorism cases because of potential violations of their privacy, including monitoring of their communications with clients. That fear has grown as a result of the disclosures in Oregon, Mr. Maher said.
Lawyers who agree to defend terrorism suspects in cases involving classified information are required to undergo background checks that can include an F.B.I. review of their financial and medical records, including records of psychiatric care.
"People just aren't going to get involved in this process," Mr. Maher said. "I find it unfathomable that in our adversarial system, we've created a process to weed out qualified defense counsel."
The anxiety among defense lawyers has grown as the Bush administration has pressed Congress to pass a bill that would permanently ease restrictions on domestic wiretapping in investigations involving national security. Democratic Congressional leaders and the White House are at a stalemate over the legislation.
Although the administration says it has shut down the security agency's wiretapping program, lawyers involved in the Oregon case say they believe communication with their clients - and among themselves - is still being monitored.
The lawyers went to federal court in Portland this month to ask a judge to intervene to defend the sanctity of the attorney-client privilege.
In a court hearing, Mr. Coppolino, the Justice Department lawyer dispatched here from Washington, refused to say if the government, in continuing to investigate the charity, was conducting electronic surveillance of the charity's defense lawyers. "To confirm the latter, you would be confirming the former," Mr. Coppolino said.
A few private lawyers around the country have found themselves under criminal investigation in recent years as a result of terrorism-related cases. In New York, Lynne F. Stewart, a civil rights lawyer, was convicted in 2005 of helping an imprisoned terrorist leader communicate with his extremist Muslim followers in Egypt and elsewhere. Prosecutors said the messages were passed along to her in supposedly private jailhouse meetings with her client. She was sentenced to 28 months in prison.
Other lawyers who have represented defendants in terrorism cases since Sept. 11 say they have no special fear of government surveillance.
Edward B. MacMahon, a Virginia lawyer who represented Zacarias Moussaoui, the French-born Muslim extremist who pleaded guilty to involvement in the Sept. 11 plot, said he believed federal judges would act swiftly to shut down illegal government monitoring of his work, especially if it infringed on a defendant's rights.
Two senior Justice Department officials, speaking on the condition of anonymity because the department has not authorized them to discuss the issue with reporters, said they knew of only a handful of terrorism cases since the Sept. 11 attacks in which the government might have monitored lawyer-client conversations. They said they understood that the intercepted conversations were not shared with front-line prosecutors in an effort to be certain that there was no violation of attorney-client privilege.
"If a terrorist suspect living in a foreign country is calling into the United States and all of his calls are being monitored, the calls to his lawyers here might be intercepted, as well," one of the officials said. "It's not as if we're targeting the lawyer for surveillance. It's not like we're eager to violate lawyer-client privilege. The lawyer is just one of the people whose calls from the suspect are being swept up."
Still, lawyers in Portland and Washington who represented the now-shuttered Oregon offices of the prominent Saudi charity, al-Haramain Islamic Foundation, said they believed the government foul-up that allowed them to see the classified logbook in 2004 offered proof of improper monitoring of their communications with clients. The government has accused al-Haramain of raising money for terrorist groups, including Al Qaeda.
Although the lawyers are now barred from discussing many of the details of the logbook, they had said previously that it recorded the date of calls between two of the Washington-based lawyers for al-Haramain, Wendell Belew and Asim Ghafoor, and the charity's officials in Saudi Arabia. The two lawyers have sued the government, saying it illegally spied on them.
While the Bush administration insists that the warrantless wiretapping program has ended, Mr. Belew and other lawyers say they are concerned that the government has found another way of monitoring lawyer-client conversations, perhaps through the use of secret warrants obtained through the Foreign Intelligence Surveillance Court, a special court used in national security cases. The earlier N.S.A. program bypassed the surveillance court.