CENTER FOR CONSTITUTIONAL RIGHTS
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.
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.
The Court's decision comes as increasing evidence suggests the government has been surveilling attorney-client communications for some time. The New York Times recently reported that in 2013 the NSA surveilled law firm Mayer Brown while it represented the government of Indonesia in trade talks with the United States. In 2008, The Times reported Justice Department officials had confirmed that attorney-client communications in terrorism cases were sometimes subject to surveillance. And a document accidentally released to an Islamic charity in 2004 indicated that the D.C.-based attorneys for the charity had been subject to surveillance while speaking to their clients.
A memo released by whistleblower Edward Snowden indicated that the government only excludes attorney-client communications from collection when the client is under actual indictment in the United States. Communications of attorneys not directly with a client (for example, with expert witnesses or investigators abroad), or with a client not formally charged in the United States (including, for example, the Center for Constitutional Rights’ many Guantanamo detainee clients, none of whom are charged in federal courts) might now be subject to surveillance under broad orders issued under the current FISA statute.