New York – Last night, the Center for Constitutional Rights (CCR) and co-counsel filed an opposition brief in Wilner v. NSA, a Freedom of Information Act (FOIA) lawsuit on behalf of 24 attorneys who represent detainees at Guantánamo – including CCR staff attorneys Gitanjali Gutierrez and Wells Dixon, as well as law professors and partners at prominent international law firms. These attorneys believe they may have been targeted by the government’s warrantless wiretapping program that began shortly after September 11, 2001 because of their representation of Guantánamo prisoners labeled “enemy combatants” by the government. They seek access to records showing whether the government has intercepted communications relating to their representation of these clients.

“The existence of the spying program inhibits our ability to do our work,” said CCR attorney Gitanjali Gutierrez, a plaintiff in the case. “We sometimes have to warn clients and potential witnesses that their communications with us may be monitored by the government. The NSA program prevents us from assuring them of confidentiality, making clients and witnesses less likely to want to participate in any cases against the government.”

Although CCR argues that any warrantless surveillance of the plaintiffs would be illegal, not only have the National Security Agency (NSA) and the Department of Justice (DOJ) refused to turn over the relevant records, they have refused to confirm or deny whether the plaintiffs were in fact subject to surveillance under the program. The newly-filed brief argues that the government must provide the records if they exist because the FOIA statute cannot be used to hide illegal activities.

The 24 attorneys submitted declarations in opposition to the government’s motion for summary judgment. The declarations detail the obstacles they have faced in trying to properly represent their clients due to the existence of the NSA program, in some cases including facts they believe indicate they are being surveilled.
As attorneys whose jobs involve litigating against the federal government and working with clients and witnesses located overseas, they believe their right to act as advocates is “chilled” and their representation is impeded by the likelihood that they are being monitored by the NSA. The likelihood that they are under surveillance has forced them turn to more expensive and less effective substitutes for phone calls and emails, such as traveling overseas to meet witnesses face-to-face or using unreliable foreign mail systems. The sometimes-prohibitive expense, dangers, and legal obstacles to travel have significantly burdened the attorneys’ ability to represent their clients in Guantánamo and elsewhere.

The attorneys’ declarations include specific experiences that lead them to believe the government has eavesdropped on privileged communications. Lead plaintiff, Tom Wilner, stated “I have been informed on two occasions by government officials, on the condition that I not disclose their names, that I am probably the subject of government surveillance and should be careful in my electronic communications with others.” The brief also details other ways in which the government has attempted to interfere with the attorneys’ representation of their clients at Guantánamo.

“One of the striking things about this program is that it means opposing counsel – particularly the DOJ – may be listening in on our litigation strategy,” said Shayana Kadidal, Managing Attorney for CCR’s Guantánamo Project and counsel in this case. “The uncertainty created by the existence of the NSA program makes it far more difficult for lawyers to challenge in court all the other illegal behavior of this administration in the course of the so-called War on Terror. Today’s filing is an attempt to determine whether all the warning signs of government surveillance are real or just false alarms.”

CCR filed the lawsuit in the U.S District Court for the Southern District of New York on May 17, 2007. Along with CCR, the plaintiffs are represented in this case on a pro bono basis by Chicago-based law firm Butler Rubin Saltarelli & Boyd and the Institute for Public Representation at Georgetown University Law Center.
Plaintiffs are: Thomas Wilner, Shearman & Sterling LLP; Jonathan Hafetz, the Brennan Center for Justice at New York University School of Law; Gitanjali Gutierrez, the Center for Constitutional Rights; Michael J. Sternhell, Kramer Levin Naftalis & Frankel LLP; Jonathan Wells Dixon, the Center for Constitutional Rights; Joshua Colangelo-Bryan, Dorsey & Whitney LLP; Tina M. Foster, International Justice Network; Brian J. Neff, Schiff Hardin LLP; Alison Sclater, Pro Bono Net, Inc (formerly of Kramer Levin Naftalis & Frankel LLP); Professor Marc D. Falkoff, Northern Illinois University College of Law; Joseph Margulies, MacArthur Justice Center at the Northwestern University School of Law; Scott S. Barker, Holland & Hart LLP; Anne Castle, Holland & Hart LLP; James E. Dorsey, Fredrikson & Byron P.A.; Asmah Tareen, Fredrikson & Byron P.A.; Richard A. Grigg, Spivey & Grigg LLP; Thomas R. Johnson, Perkins Coie LLP; George Brent Mickum IV, Spriggs & Hollingsworth LLP (formerly of Keller & Heckman LLP); Stephen M. Truitt, attorney in private practice; David H. Remes, Covington and Burling LLP; H. Candace Gorman, attorney in private practice; Charles Carpenter, Pepper Hamilton LLP; John A. Chandler, Sutherland, Asbill and Brennan LLP; and Clive Stafford Smith, Reprieve.

For more information on Wilner v. NSA and complete filings, go to the Wilner v. NSA case page.

CCR has led the legal battle over Guantánamo for the last six years – sending the first ever habeas attorney to the base and sending the first attorney to meet with a former CIA “ghost detainee.” CCR has been responsible for organizing and coordinating more than 500 pro bono lawyers across the country in order to represent the men at Guantánamo, ensuring that nearly all have the option of legal representation. CCR represented the detainees with co-counsel in the most recent argument before the Supreme Court on December 5, 2007.