March 31, 2010, New York, NY – Last night, the Center for Constitutional Rights (CCR) asked the Supreme Court to take up its warrantless surveillance case, Wilner v. National Security Agency (NSA). CCR and co-counsel argue that the Executive Branch must disclose whether or not it has records related to the wiretapping of privileged attorney-client conversations without a warrant. Lawyers for the Guantánamo detainees fit the officially acknowledged profile of those subject to surveillance under the former administration’s program, and the Executive Branch has argued in the past that it has a right to target them.

The plaintiffs in the case are 23 attorneys who have represented Guantánamo detainees. They filed a Freedom of Information Act (FOIA) request seeking records of any surveillance of their communications under the NSA’s warrantless surveillance program, which began after 9/11 but was only disclosed to the public in December 2005. The government refused to either confirm or deny whether such records existed, and the lower courts refused to order the government to confirm whether it had eavesdropped on attorney-client communications. The question before the Supreme Court is whether the government can refuse to confirm or deny whether records of such surveillance exist, even though any such surveillance would necessarily be unconstitutional and illegal.

“Illegal surveillance of attorney-client communications makes it nearly impossible to challenge other illegal behavior by the government,” said Shayana Kadidal, Senior Managing Attorney of the CCR Guantánamo Global Justice Initiative. “The new administration has no legal basis for refusing to come clean about any violations of attorney-client privilege by the NSA.”

The petition filed last night includes declarations from the Guantánamo attorneys detailing how the threat of illegal surveillance by the NSA has made it harder for them to gather evidence in their cases from witnesses overseas, including family members of detainees, who are often unwilling to speak freely on the phone given the threat that the government may be listening in.

Said CCR co-counsel Kathryn Sabbeth, Assistant Professor of Law at the University of North Carolina at Chapel Hill School of Law, “Targeting American lawyers on American soil to obtain information about their clients would be illegal, and there is no legal basis for covering it up.”

The 23 attorneys bringing the suit include CCR staff attorneys Gitanjali S. Gutierrez and Wells Dixon, law professors, and several partners at prominent international law firms. CCR, the Institute for Public Representation at Georgetown University Law Center and the Chicago law firm Butler Rubin Saltarelli & Boyd filed the case in the U.S. District Court for the Southern District of New York on May 17, 2007.

The district court ruled the NSA could refuse to say anything either confirming or denying the existence of any related materials because to do so “would reveal information about the NSA’s capabilities and activities.” Plaintiffs argued in an appeal that the program and many details about it have already been made public, and a confirmation or denial that the lawyers were subject to surveillance cannot possibly harm the NSA’s intelligence-gathering abilities. At argument in the lower courts, the government’s attorney refused to state whether the Obama administration believed the NSA Program was legal or illegal.

Visit the Wilner v. NSA case page for more information.

CCR has led the legal battle over Guantanamo for the last eight years – sending the first ever habeas attorney to the base and sending the first attorney to meet with a former CIA “ghost detainee” there. 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 and is actively working to resettle Guantánamo’s refugees.