Can Defense Counsel Ever Be Lawfully Surveilled by the Government?

David Luban’s essay (“Indefensible: Why Guantánamo defense lawyers can’t ethically participate any longer”) presents an excellent rendition of most of the ethics rules applicable to the publically known facts about the decision by Brig. Gen. John G. Baker, the chief defense counsel for the Military Commissions, to disband the defense’s trial team in the military commission case of United States v. Nashiri. Abd al-Rahim al-Nashiri was charged in connection with the bombing of the USS Cole on October 12, 2000, in which 17 sailors were killed and 39 were injured.

In a press release, the defense counsel said it could not ethically proceed because client confidentially was compromised as a result of alleged government surveillance.

This raises the question: Could there be any circumstance where the surveillance of defense counsel in a terrorism case might be “defensible”?

To be very clear, I am not accusing the Nashiri defense team of anything that would explain the use of surveillance. I am not aware of any evidence of impropriety. Indeed, as the defense counsel rightly recognized in his press release, the “circumstances surrounding this are highly classified.” Similarly, Michael Paradis, writing recently at Lawfare about the issue, said that:

The details remain largely classified, but the apparently sudden removal of these attorneys was precipitated by a series of events beginning in June of this past year. What can be said publicly is that it became impossible for al-Nashiri’s attorneys to meet their responsibility to protect the attorney-client privilege.

Since I don’t know any of the classified circumstances in the Nashiri case, my purpose here is to merely alert readers to a separate case where a lawyer’s meeting with an accused terrorist was lawfully surveilled by the government. In this particular case, the surveillance revealed criminality on the part of the defense counsel, which resulted in her being convicted of a variety of federal crimes arising out of her representation. This example illustrates the ethical obligations of defense counsel in terrorism cases, and shows how what may have been good intentions went terribly awry. 

I am speaking about the 2005 case of the late Lynne Stewart. Stewart, whom the New York Times described as “a radical-leftist lawyer who gained wide notice for representing violent, self-described revolutionaries,” was the attorney for Sheikh Omar Ahmad Ali Abdel Rahman – known as the “Blind Sheik.”

Rahman was convicted in 1995, along with nine others, “of plotting to blow up the World Trade Center, United Nations headquarters, and various bridges, tunnels and landmarks in and around New York City.” Rahman, who died this year, was characterized by the Washington Post as a “spiritual leader” convicted “of being a mastermind of terrorist plots against the United States, and who was called the ‘godfather’ of radical Islamist movement.”

In the course of Stewart’s representation of Rahman, the government surveilled her prison visits with him.  Unbeknownst to her, video and audio recordings of the meetings were authorized by the Foreign Intelligence Surveillance Court (FISC), established by the Foreign Intelligence Surveillance Act (FISA).  The 2nd Circuit found the FISC-authorized surveillance lawful (United States v. Stewart, 590 F.3d 93, 2009 U.S. App. LEXIS 28595).

Still, while Stewart did not know about the FISA order, she did seem to suspect that at least the guards might be trying to listen to the meetings because, as the court noted, she and her translator “took overt steps to ensure that the nature of their communication with Abdel Rahman would be concealed from the prison guards.”  Moreover, while her translator “read the message to Abdel Rahman, Stewart uttered a meaningless series of phrases to [the translator] so that it would appear to an observer as though she was taking part in a three-way conversation.”

Was privileged material used to convict Stewart?  No.  As the district court explained (United States v. Sattar, 2003 U.S. Dist. LEXIS 16164, 2003 WL 22137012), the government had:

[A] “taint team” or “privilege team” that is walled off from the Government Trial Team has been preparing transcripts of the Prison Recordings and redacting those transcripts in accordance with FISA to remove privileged communications, after which time the redacted materials are being provided to the Government Trial Team as well as to Stewart and Yousry [the translator]. Use of the taint team ensures that members of the Government Trial Team are not exposed to potentially privileged material.

In any event, based on those redacted recordings (and other evidence), Stewart was convicted of providing and concealing material support to a conspiracy to murder persons in a foreign country, as well as willfully making false statements.

The Stewart case has a further interesting and rather convoluted history: The 2nd Circuit remanded the case for reconsideration of the original four-year prison term and that resulted in her being re-sentenced to 10 years in prison, a decision that was upheld on appeal to the 2nd Circuit. In affirming the new sentence, the 2nd Circuit cited the district court’s explanation of the sentence enhancement:

Access to Sheikh Rahman was limited and attorneys were given access for legal purposes. The defendant swore that she would abide by the [Special Administrative Measures (SAMs)] and not use her access to pass messages between Sheikh Rahman and the media, but she failed to keep her word. The administration of the SAMs depended on trust placed in attorneys to keep their word. The defendant was able to participate in smuggling messages into and out of the prison because of the trust placed in her as the attorney for Sheikh Rahman . . . Ms. Stewart abused her position as a lawyer to gain access to Sheikh Omar Abdel Rahman while he was in prison and used that access to smuggle messages to and from Sheikh Abdel Rahman while he was in prison and to make potential[ly] . . . lethal public statements on his behalf in violation of the SAMs.

SAMs allow the federal government (under the direction of the attorney general) to impose “measures that are reasonably necessary to protect persons against the risk of death or serious bodily injury.”

Subsequent to the FISC-authorized surveillance in the Stewart case, the SAMS were amended in 2001 to specifically permit surveillance of attorney-inmate conversations under certain circumstances without a FISC order.  However, the regulations say that a notice to the defense counsel is required, and it “shall” explain:

(i) That, notwithstanding the provisions of part 540 of this chapter or other rules, all communications between the inmate and attorneys may be monitored, to the extent determined to be reasonably necessary for the purpose of deterring future acts of violence or terrorism;

(ii) That communications between the inmate and attorneys or their agents are not protected by the attorney-client privilege if they would facilitate criminal acts or a conspiracy to commit criminal acts, or if those communications are not related to the seeking or providing of legal advice.

For the Military Commissions, similar authority was found in both the original Military Commission Order (MCO) No. 3, Special Administrative Measures for Certain Communications Subject to Monitoring (Feb. 5, 2004), and its revision, dated Sept. 21, 2005. By the terms of the MCO, the monitoring of communications between detainees and their defense team could only be done with approval of the commander of U.S. Southern Command upon a determination that “such monitoring may prevent communications aimed at furthering or facilitating terrorist operations or other illegal acts.” (An interesting 2013 comparison of SAMs and the rules in effect then for detainees is found here.)

However, today MCO No. 3 is not found on the Military Commission’s website’s collection of “current documents,” but rather is among its “historical documents.” Although I haven’t found a formal revocation, it seems to be, de facto (if not de jure), defunct. The reports about the current situation appear to support that conclusion.

Here’s why: On Feb. 4, 2013, Col. John Bogdan, then-commander of the Joint Detention Group at Guantanamo, directed that for the “safety and security” of his command there would be monitoring of meetings between attorneys and detainees, but there could only be video, and no audio monitoring. Despite this, the issue of monitoring of defense counsel arose again last year in the case of United States v, Khalid Shaikh Muhammed (KSM), et al.

In a Nov. 30, 2016 ruling, the judge in the KSM case (Col. Jim Pohl, who is also the Chief Judge of the Military Commissions Trial Judiciary) noted that the Chief Prosecutor “avowed that ‘No entity of the United States Government is listening, monitoring or recording communications between the five Accused and their counsel at any location.’”  However, Pohl nevertheless issued this order:

The Commission directs that the salient points of the directive issued by COL Bogden be formally made part of the standard operating procedures for JTF-GTMO and the [Joint Detention Group]. Further, when new Defense Counsel are being shown or briefed on the interview rooms at ECHO II, they must be specifically made aware of the monitoring capability and its uses. Lastly, if a meeting with an Accused involving Defense Counsel (e.g., a plea negotiation) is to be monitored, the Defense Counsel involved will be advised in advance of the monitoring.

As Luban discussed in his piece, in June of this year Brig. Gen. Baker wrote a memorandum for Guantanamo defense counsel that said he “recommended” to defense counsel that they “not conduct any attorney-client meetings at Guantanamo Bay, Cuba.” In that document Baker referenced Judge Pohl’s order from last November, and said that “due to recently received information” he (Baker) was “not confident that the prohibition on improper monitoring of attorney-client meetings at [Guantanamo] as ordered by the commission is being followed.”

Carol Rosenberg, a journalist at the Miami Herald, reported on Jun. 19 that U.S. Southern Command then “ordered an investigation into claims that somebody was illegally recording attorney-client meetings at Guantánamo from September 2015 to April 2017.” She later reported (on July 2) that a “Navy prosecutor said unauthorized, unidentified people ‘unintentionally’ overheard detainees consulting with their attorneys,” and that he also said “[a]ny characterization regarding an intrusion in the attorney-client relationship is misleading.”

Obviously, lots of questions remain. For example, does Judge Pohl’s order also prohibit a FISC order permitting a non-DoD entity to conduct surveillance? In a 2014 article, Faiza Patel and Anthony Ford of the Brennan Center note that beyond what might be done under SAMs, the “government can monitor attorney-client communication with few constraints in intelligence operations.” They point out that the FISC can secretly “order covert surveillance of individuals the government alleges are probable ‘agents of a foreign power’.” They add that:

The FISA statute purports to honor legal privileges, such as attorney-client communications, through secret “minimization procedures.” In practice, the FISA minimization procedures do not prohibit the government’s acquisition of privileged communications, but only prevent them from being introduced directly in court as evidence.

A September 2017 report (by the Allard K. Lowenstein International Human Rights Clinic at Yale Law School and the Center for Constitutional Rights) also addresses SAMs (albeit in the civilian context), and is highly critical of them. It acknowledges that “[e]ven a prisoner’s communications with his lawyer – which are supposed to be protected by attorney-client privilege – can be subject to monitoring by the FBI.” In addition, in a footnote they further recognize that:

Under the SAMs regulations, the government must provide notice before monitoring attorney-client communications. However, the government may monitor those communications without providing notice to the attorney or defendant if it has authorization under FISA or the Title III wiretapping statute. (Emphasis added and citations omitted.)

Could something like that be at play here? We simply don’t know. What we do know, as Rosenberg reports, is that the military judge in the Nashiri case (Air Force Col. Vance Spath, who took over the case after Pohl “undetailed” himself in 2014) has said that notwithstanding Baker’s action, the Nashiri defense counsel remain the “counsel of record,” and he’s ordered them to appear for a hearing. Rosenberg points out that the Trial Judiciary Rules of Court say that once a civilian lawyer has appeared in court, “excusal must be approved by the military judge.”

To re-emphasize, I’m not aware of any wrongdoing on the part of the Nashiri defense counsel, to include specifically anything like what Lynne Steward did in her case. For that matter, I also don’t know if there was any misconduct on the part of the government (e.g., is Baker’s “recently received information” even accurate?) We just don’t have the facts. Perhaps at the upcoming hearing they will be sorted out and, hopefully, made public so as to shed light on this controversial situation.

 

Image: Getty/Joe Raedle

 

About the Author(s)

Charles J. Dunlap, Jr.

Professor of the Practice of Law and Executive Director of the Center on Law, Ethics and National Security at Duke Law School He retired from the Air Force in 2010 as a Major General.