Supreme Court building (Creative Commons-licensed Photo by OZinOH)

Whether the warrantless surveillance program carried out by the National Security Agency (NSA) under President George W. Bush was legal is a question the United States Supreme Court is not going to answer.

In a case very similar to a lawsuit brought by the American Civil Liberties Union (ACLU) against warrantless surveillance made “legal” by the FISA Amendments Act (FAA) of 2008, which the Supreme Court declined to grant “standing” in February 2013, the Center for Constitutional Rights (CCR) announced the Court had rejected their lawsuit against Bush-era warrantless surveillance.

“The Supreme Court’s refusal to review this case guarantees that the federal courts will never address a fundamental question: Was the warrantless surveillance program the NSA carried out on President Bush’s orders legal? The Court’s decision also guarantees that the Obama administration, which has for the last five years refused to take any position on that question, will now never have to answer either,” CCR declared.

The organization added, “Despite mounting evidence of government spying on attorneys’ privileged communications, the Court yesterday declined to review the lower court’s determination that CCR attorneys’ fears of surveillance under President Bush’s NSA program, which involved no review by judges or Congress and flew directly in the face of express criminal prohibitions, were too ‘speculative’ to allow CCR to challenge the program in court.”

CCR contended because it represents “hundreds of men detained indefinitely without charge as ‘enemy combatants’ at Guantánamo Bay” and has represented individuals such as “Maher Arar, a Canadian citizen who was accused of al Qaeda ties and then rendered from the United States to Syria for the purpose of being tortured; and Muslim immigrants unreasonably and wrongfully detained in the US for months without probable cause or criminal charges in the wake of 9/11″ that the government had eavesdropped on their attorney-client privileged communications.

In 2013, the Obama administration managed to avoid a Supreme Court review of Section 702 of the FAA by focusing on the lack of “standing” plaintiffs in the ACLU lawsuit had. They could not prove they had been subjected to warrantless surveillance because of the immense secrecy surrounding the legal interpretation of Section 702 and how it had actually been used by the government.

However, since NSA whistleblower Edward Snowden’s disclosures, there have been details, which have surfaced, that suggest the NSA has collected and stored attorney-client privileged communications.

Nicolas Niarchos reported for The Nation on “minimization” procedures, which are supposed to regulate surveillance under the Foreign Intelligence Surveillance Act (FISA). One section is supposed to protect attorney-client privileged communications, however, the declassified 2011 guidelines has a section that indicates “a person who is known to be under criminal indictment in the United States” will be protected.

“This is because indicted persons have a Sixth Amendment right to counsel,” Niarchos explained. “People who aren’t indicted don’t have this right, and so their calls are not minimized.”

Niarchos interviewed Robert Gottlieb, who Adis Medunjanin contacted because he needed legal representation. Medunjanin was accused of trying to bomb the New York subway and sought “legal advice” from Gottlieb from mid-2009 to January 2010, when he was arrested.

Over this period, forty-two phone calls between Gottlieb and Medunjanin were made. When Gottlieb was reviewing classified information for a case, he found a CD that had all forty-two of these calls, a clear violation of attorney-client privilege.

Another lawyer, Ron Kuby, who “defended Ahmad Wais Afzali, an imam who was tried for providing material support to the subway plotters,” had his privileged communications violated too. Afzali asked Kuby for “legal advice” but, at the time, the government was eavesdropping on him. They planned a press conference on his case for a Sunday, and the FBI preempted the press conference by arresting Afzali the Saturday before they planned to speak to media.

In a case where the federal government was investigating the Islamic charity, the al-Haramain Foundation, for “terrorism-financing,” according to the New York Times, 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.

Lawyers have refused to take terrorism cases because they refuse to have their privacy violated by the government, and attorney have also warned their own clients that they should “self-censor” and assume they are being spied upon by the government when they communicate anything.

This is not some “speculative” issue. On February 20, the American Bar Association, which has around 400,000 members, expressed concerns about recent allegations that the “confidential communications” of American lawyers with “overseas clients” had been violated. (The ABA was referring to this story from the New York Times on surveillance that allegedly entangled a Chicago-based law firm.)

The ABA has fought against intrusions into “computer systems of lawyers and law firms that risk undermining unfettered attorney-client communications and compromising client confidences.”

“The interception and sharing of attorney-client privileged communications by government agencies—or any third party—raises concerns, including chilling the full and frank discussion between lawyer and client that is essential for effective legal representation. Any government surveillance and interception of confidential communications between law firms and their clients threaten to seriously undermine and weaken the privilege,” the ABA wrote in a letter to the NSA requesting the agency clarify its policies on the collection of attorney-client privileged communications.

Over the course of CCR’s lawsuit, like other significant legal challenges to national security programs or policies, the Bush administration invoked “state secrets privilege,” alleging the security of the country would be harmed if CCR was allowed to challenge the government’s collection of communications, which should be protected.

The Supreme Court’s refusal to hear this case not only ignores the alleged harm to CCR lawyers work, as they face a very real threat that the government is collecting information on clients they represent who are not indicted (including people like WikiLeaks editor-in-chief Julian Assange). It allows the federal government to continue to hide behind secrecy claims in order to shield itself from accountability for abusing its power.