NSA spying and federal corruption both know no bounds – recently it’s been discovered that the NSA has been listening in on lawyer/client conversations, which the feds not only allow, but use to their advantage.
Crazy as it seems, the NSA can legally reveal the contents of these conversations to others. Goodbye attorney/client privilege!
The specific case that was uncovered is between a highly regarded Chicago law firm, Mayer Brown, and their clients the Indonesian government, who have both remained publicly silent about the revelations.
Mayer Brown represents Indonesia concerning trade regulations of exports of cigarettes and shrimp to the United States. The lawyers Mayer Brown is negotiating with, however, work for the federal government, which also employs the NSA.
Evidently, the lawyers negotiating with Mayer Brown pulled some strings and got the NSA to listen in on the conversations between Mayer Brown and the Indonesian government and relay what they heard.
As corrupt as it sounds, it’s actually all legal because federal rules prohibit the NSA from sharing knowledge with lawyers for the federal government only about persons who have been indicted.
Of course, the federal government wants the only law of the land to be what comes out of their mouths.
In the months since Edward Snowden revealed the nature and extent of the spying that the National Security Agency (NSA) has been perpetrating upon Americans and foreigners, some of the NSA’s most troublesome behavior has not been a part of the public debate.
This behavior constitutes the government’s assaults on the American legal system. Those assaults have been conducted thus far on two fronts, one of which is aimed at lawyers who represent foreign entities here in America, and the other is aimed at lawyers who represent criminal defendants against whom evidence has been obtained unlawfully and presented in court untruthfully.
Investigative reporters at The New York Times recently discovered that the NSA has been listening to the telephone conversations between lawyers at a highly regarded Chicago law firm and their clients in Indonesia. The firm, Mayer Brown, has remained publicly silent about the revelations, as has its client, the government of Indonesia. However, it is well known that Mayer Brown represents the government of Indonesia concerning trade regulations that govern exports of cigarettes and shrimp to the United States. The lawyers on the other side of the bargaining table from Mayer Brown work for the federal government, which also employs, of course, the NSA.
Can the NSA lawfully tell lawyers for the government who are negotiating with Mayer Brown lawyers what it overheard between the Mayer Brown lawyers and their client? The answer, incredibly, is yes. Federal rules prohibit the NSA from sharing knowledge with lawyers for the federal government only about persons who have been indicted. In this case, Mayer Brown is attempting to negotiate favorable trade relations between Indonesia and the United States, and the lawyers for the U.S. have the unfair advantage of knowing in advance the needs, negotiating positions and strategy of their adversaries. In the Obama years, this is how the feds work: secretly, unfairly and in utter derogation of the attorney-client privilege.
For 100 years, that privilege — the right of lawyers and their clients to speak freely and without the knowledge of the government or their adversaries — has been respected in this nation, until now. Now, we have a lawyer who, as president, uses the NSA to give him advance warning of what his office visitors are about to ask him. Now we have lawyers for the federal government who work for the president and can know of their adversaries’ most intimate client communications.
This is profoundly unfair, as it gives one side a microscope on the plans of the other. It is unwise, too, as clients will be reluctant to open up to counsel when they know that the NSA could spill the beans to the other side. In the adversarial context, for the system to work fairly and effectively, it is vital that clients be free to speak with their lawyers without the slightest fear of government intrusion, particularly when the government is on the other side of the deal or the case.
If you have spoken to a lawyer recently and if that lawyer is dealing with the federal government on your behalf, you can thank the constitutional scholar in the Oval Office for destroying the formerly privileged nature of your conversations.
That is not the only legal protection that President Obama has destroyed, though. In 2012, the U.S. Supreme Court heard oral argument in a case in which journalists in the pre-Snowden era challenged the government’s spying on them. The government won the case largely because it persuaded the court that the journalists did not have standing to bring the lawsuit because, the court ruled, their fears of being spied upon were only hypothetical: They suspected that their communications with their sources were being monitored, but they couldn’t prove it. In this post-Snowden era, we now know that the journalists in that case were being spied upon.