Thursday, February 27, 2014

New Targeting Allegations Against the NSA

     In a report conducted by the New York Times from earlier this month, the NSA snooping saga has shifted to allegations of spying on businesses, more specifically, American law firms.  According to documents obtained through the Edward Snowden leaks, US law firms were targeted without a warrant as part of an international trade investigation.

     To provide a brief background to the matter, an Indonesian company had retained an American law firm to assist with trade talks.  As part of an apparent agreement with the NSA, foreign allies are able to snoop on American companies or individuals if it is relevant to an investigation.  The NSA is barred from targeting American businesses itself.  According to Australian intelligence officials, who were conducting the surveillance as part of an intelligence gathering operation against the Indonesian company, "'information covered by attorney-client privilege may be included' in the intelligence gathering." 

     This report has created a whirlwind of renewed discontent toward the NSA and their programs.  In the legal world, attorney-client privilege is a sacred covenant, which is held in highest regards.  If this privilege is allowed to be violated, it could, and probably will, open the floodgates to myriad attacks against the NSA in the future.

     Reporting conducted by Andrew Ramonas of the National Law Journal indicates this new development may provide plaintiffs standing to sue against the NSA for future cases - something that has been a difficult hurdle to overcome in past suits.  Ramonas quotes a staff attorney from the American Civil Liberties Union (ACLU) who stated, "This story confirms our fear that the NSA's surveillance rules give short shrift to the privacy of communications between lawyers and their clients, and it's another example of the NSA's troubling 'mission creep' beyond national security."  

     Larry Klayman, an attorney and plaintiff in a federal district court suit challenging the NSA's programs (deemed unconstitutional by the district court judge and appealed by the government), believes the Times report affords him and other attorneys standing.  The most difficult task for plaintiffs thus far in challenging the NSA's programs has been establishing standing.  Since the NSA's programs are secret in nature, there is virtually no way to prove one's injury.  However, this may change if law firms can prove that their phone lines where tapped during private phone calls with clients.  Violating attorney-client privilege would be a sufficient injury under which to bring suit.  

     Consequently, it is difficult to determine if federal judges will side with plaintiffs' insistence that attorney-client privilege is an inherent right guaranteed by the Constitution or if it is just merely a privilege.  However, the Supreme Court has, in the past, ruled based on longstanding tradition.  In Marsh v. Chambers, the Court ruled that the state legislature of Nebraska did not violate the First Amendment's "Establishment Clause" with its chaplaincy practice.  Rather, the Court ruled that there is a long standing tradition in the United States and the practice had become ingrained in common society.  While the attorney-client privilege is a fabric of legal practice, such a challenge may bring to light its actual legal standing.

     Another question to consider when analyzing and pontificating a potential Supreme Court case is the severability of the NSA's programs, meaning, can the Court sever a portion of the NSA's programs such as metadata collection from the rest or would the Court have to rule on the entirety of the program.  This was a major question during the challenge of the Affordable Care Act and in fact, there was a whole day of argument designated just on the severability question.  It is quite possible the Court may strike down a portion of the program that is being challenged while leaving the remainder of it intact.  This is unlikely given how interconnected the program is but it is possible.  

     Some still maintain that there is no wrongdoing by the NSA in the Times report.  Kent Zimmermann cites a blog post where the esteemed authors contend, "the Times story does not involve NSA spying. It doesn't involve any remotely-plausible suggestion of illegality.  It doesn't involve any targeting of Americans.  And it doesn't involve any targeting of lawyers either...a foreign intelligence service was conducting surveillance against another foreign government, which was in communication with a U.S. law firm."  According to Zimmermann, the United States government should take the initiative in securing the protection of their domestic law firms from such intrusion, however, he notes, this does not happen.  Zimmerman writes, "Such protection is important because, as law firms globalize, the matters they work on, and their attorney-client communications about them, increasingly become of interest to foreign governments." 

     While the report by the Times offers some startling new developments to the prolonged NSA-civil liberty fight, it is difficult to determine how the courts will react.  Currently, there are two conflicting federal district court rulings - one affirming the NSA's programs, and one deeming them unconstitutional.  For some, simply granting plaintiffs standing to sue to have their day in court is a step in the right direction because many just want to have a debate on the subject.  With judges and lawmakers debating the issue, it is possible that reform is in the future.  However, for individuals such as Klayman who believe their Fourth Amendment rights are being violated, a ruling affirming their opinion is the desired outcome.  Despite President Obama's suggested reforms to curtail the program and the Justice Department providing suggestions ahead of schedule, the NSA will continue to anger Americans until a definitive Supreme Court ruling is issued.      

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