Increasingly, American lawyers are finding they cannot guarantee that communications with their clients, which are supposed to be privileged and remain confidential, will not be violated by government intrusion.
The American Bar Association, which has around 400,000 members, has expressed concern that lawyers with “overseas clients” are being violated by National Security Agency surveillance. They have challenged 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.
One lawyer, Kel McClanahan, a Virginia lawyer and executive director of National Security Counselors (NSC), suspects that the FBI may have quietly obtained “privileged email traffic” and “possibly even issued gag orders” to their Internet service providers (ISPs) to “cover its tracks.” He’s filed a lawsuit for records on an alleged government investigation into him.
NSC is a group which submits Freedom of Information Act (FOIA) requests and pursues FOIA lawsuits with the intent of obtaining “government material related to national security matters” that is in the public interest. It uses this material to advocate for reforms and believes citizens have a right to know what their government is doing in the name of “national security.” And, currently, according to McClatchy, it has 17 cases in three different courts (besides this case), which are pending.
On May 3, 2010, McClanahan submitted a FOIA request for the Table of Contents for the CIA’s in-house journal, Studies in Intelligence. The CIA released redacted copies to NSC on December 5, 2011.
Just over a week later, on December 13, a “third party” (unnamed in the legal complaint) emailed and notified McClanahan that they had been “filing FOIA requests for Studies articles and Table of Contents for a long time.” The “third party” wanted to compare notes.
It turned out this “third party” possessed a “previously published list of old Studies articles,” which NSC could probably use in litigation. In fact, he noticed they “included a significant amount of information that CIA had redacted.” He suspected they contained classified information and asked the “third party” why they lacked redactions. This unnamed individual replied that he was given the material by “another party and did not receive them through FOIA.”
McClanahan approached Ryan Parker, a counterpart in the government, for advice on dealing with the fact that he now possessed classified information. He was concerned because he had possessed a security clearance in the past and expected he may need one again in the future. That’s when the FBI got involved.
Melinda Belvin, an FBI Special Agent, met with McClanahan on January 18, 2012. She insisted McClanahan sign a non-disclosure agreement and then asked him questions he thought were tangential like “what his email address was, what Internet Service Provider (“ISP”) he used, and where it was located.” McClanahan also chose to reveal the identity of the person who sent him the material containing classified information.
All would seem like responsible conduct, a person engaging in due diligence to ensure they could continue to do the work they do on a daily basis. But McClanahan soon believed that the FBI was investigating him.
Belvin and her partner showed up to McClanahan’s home unannounced on November 5, 2012. “We heard that you were willing to cooperate again.” She also asked McClanahan to let the FBI search his office “to see if [he had] any other classified material.” He refused because any search would involve “attorney-client privilege” material, none of which was classified.
The FBI wanted him to “give the FBI his computer so it could securely remove the classified information.” McClanahan would not allow the FBI to do this and Belvin suggested he was being uncooperative. When McClanahan suggested the FBI apply for a warrant to gain access to his computer, which he would probably then move to quash, Belvin informed him the FBI would likely do this.
In the course of events, the FBI was not responding to his communications and effort to resolve this matter. McClanahan plainly explained:
1) I voluntarily gave the FBI a CIA document that I thought might be classified.
2) The FBI informed me that the CIA had determined that the document did in fact contain classified information.
3) I asked for a copy of the document with the classified information redacted.
4) The FBI refused to give me a redacted copy, saying that it could not make such a decision for the CIA.
5) The FBI then said it would check with the CIA to see if I could be given a redacted copy.
The issue was now simple: “Will the government give me the redacted copy I want or not?” But it was not simple. The FBI had reason to be interested in one of his clients, Cori Crider of the human rights organization, Reprieve, based in the United Kingdom. She was representing Sharif Mobley, “a US citizen living in Yemen with his family,” who “was seized by Yemeni security officials and shot in the process.”
Mobley was subsequently “taken to the Police Hospital, then transferred to prison, then transferred to the General Hospital.” FBI agents interrogated him “numerous times” between January 30, 2010 and April 7, 2010, “while he was in Yemeni government custody.” He allegedly attempted to escape the General Hospital and shot a guard, who died later. He was transferred back to prison and charged with murder, and, on March 25, 2010, Mobley’s wife, Nzinga Islam, hired Crider to represent her husband and hopefully get him released from prison.
The Yemeni government claimed it had no record of Mobley prior to March 7, 2010. Crider submitted her own FOIA requests to the FBI and other agencies on July 22 to help her represent Mobley and eventually hired McClanahan to help her with litigation related to the FOIA requests.
Crider sent McClanahan a copy of an unredacted FBI interview report from April 7, 2010, with Mobley. It was submitted by the deceased guard’s family in Mobley’s criminal trial and a lawyer for the guard claimed that he obtained it from the Yemeni government after it was provided to them by the FBI. This was important to Crider because in her request for records from the FBI a copy of this was released with redactions.
Adam Baron of McClatchy, the only journalist to have covered this story so far, reported:
…After comparing the redacted document with the uncensored copy, McClanahan concluded that the FBI censored the document it had given him simply to hide FBI misconduct and possible violations of the law, not because it revealed sensitive national security information.
Wanting to present the classified version to the court, McClanahan emailed a Department of Justice lawyer to ask how he should proceed. The lawyer informed the FBI and, on June 26, 2012, McClanahan again met with the same two FBI agents to discuss all three documents. McClanahan said the agents requested that he delete the files and, again, he declined, saying he’d do so only after he received official copies of them…
The FBI eventually submitted a sworn declaration on October 12, which denied that the unredacted FBI interview report had been provided to the Yemen government. More significantly, it was in the June meeting, when the FBI knew that McClanahan had an interest in arguing that information had been redacted because of alleged FBI misconduct that the FBI asked for an email address and ISP information.
The evidence is primarily circumstantial, but in the months after this meeting, McClanahan noticed that all the emails for an email account were inexplicably missing from the Doteasy server used by NSC. On November 5, he realized messages for an intern account before October 28 were all missing. Doteasy claimed they could not explain why this happened.
On November 4, McClanahan experienced “long unexplained delays when he attempted to download email messages from two NSC email accounts to his computer.” The email delays disappeared the following day and Doteasy could not explain why. They had done nothing.
This all happened very close to the unannounced FBI visit on November 5.
As detailed in the complaint, “McClanahan began to suspect that the FBI had obtained his email messages from Doteasy by utilizing an archaic and legally questionable provision in the Electronic Communications Privacy Act (“ECPA”) which allowed the FBI to obtain email messages from an ISP with nothing more than an administrative subpoena if they have been on the server for more than 180 days.”
“This hypothesis—supported by statements endorsing the practice in DOJ manuals—potentially explained two previously puzzling facts: (1) Belvin had persisted in previous meetings in asking for details about NSC’s and Reprieve’s respective ISPs, even though that information had no apparent relevance to the investigations; and (2) Belvin had twice left McClanahan—most recently just a few days earlier—with the impression that she believed that it was a foregone conclusion that the FBI would obtain access to his records, and yet he had still not seen a warrant.”
McClanahan cannot prove his communications were violated, however, he does know that Doteasy’s legal department refused to speak to him about whether the FBI had obtained his email messages or what they would do if the FBI had asked for the messages. (The FBI did get him to delete his unredacted copy of the FBI interview report.)
It has been previously reported by Mother Jones that the US government sought to conceal the FBI’s role. US government officials knew Mobley was being held in detention even as they told his wife “they did not know his whereabouts.” Mobley was also in contact with US citizen and Yemeni cleric Anwar al-Awlaki, who was killed in a US drone strike. They met in 2008 just over a year before he was seized by Yemeni security forces on January 26, 2010. (Forces possibly trained by the US government.)
Finally, it is worth highlighting that Mobley was being prosecuted by the criminal justice system in Yemen, not the United States (although the FBI interrogated him multiple times). Since Mobley was not indicted by the US, the FBI—as done in the past—probably believed it could engage in whatever surveillance it wanted in order to ensure McClanahan did not have more information on the FBI’s involvement in the Mobley case that it would want to prevent from being used against them.
The effort to obtain documents from the government may be a critical act of seeking to ensure that there are boundaries to what intelligence agency officials can and cannot do in cases. It should not be acceptable to allow agents or analysts to snatch up a batch of emails to see what a lawyer has on a government agency, especially when done without a warrant. And the brazenness of allegedly doing this just because the FBI can should be enough to convince anyone that they should hope McClanahan prevails.