Metropolitan News-Enterprise


Monday, April 2, 2007


Page 1


LACBA Agrees to Sign Amicus Brief in Warrantless Wiretapping Case


By TINA BAY, Staff Writer


The Los Angeles County Bar Association has agreed to sign onto an amicus brief urging the Ninth U.S. Circuit Court of Appeals to permit a class action lawsuit challenging the Bush administration’s warrantless wiretapping program.

By unanimous vote at a meeting Thursday, the board decided the organization should sign onto a brief drafted by the Association of the Bar of the City of New York on behalf of the plaintiffs in Hepting v. AT&T Corp. 

Corynne McSherry, an attorney for the Electronic Frontier Foundation in San Francisco, which is representing the plaintiffs, told the MetNews having the support of the largest regional voluntary bar association in the country—with nearly 24,000 members—has great significance.

“We’re very happy that the L.A. County Bar Association signed on, because it’s an important and influential bar association, and full of lawyers that we respect a lot,” she said.

Filed last January in the U.S. District Court for the Northern District of California, the suit alleges the telecommunications giant assisted in carrying out the NSA Surveillance Program, which allows the federal government to monitor and intercept without a warrant any phone call or other communication between a U.S.-based party and a party outside the U.S. with known or suspected links to al Qaeda.

The program, implemented by the Bush administration as part of its “war on terror,” drew much criticism from civil rights activists and others after its existence was first reported by the press in December 2005.

Plaintiffs’ Allegations

The complaint alleges AT&T provided the government with direct access to all or a substantial number of the communications transmitted through its key domestic telecommunications facilities including its San Francisco switching center, for example by installing interception devices, pen registers and trace devices for use in the surveillance program. In this way, the plaintiffs claim, the company violated their First Amendment right to speak and receive speech anonymously and associate privately, their Fourth Amendment right to be free from unreasonable searches and seizures, as well as various federal electronic surveillance and telecommunications statutes.

The U.S. Department of Justice moved to dismiss the lawsuit last May citing the state secrets privilege. But Chief Judge Vaughn R. Walker denied the motion in July, saying the government “opened the door to judicial inquiry” by speaking publicly about its surveillance activity. 

The Ninth Circuit in November agreed to hear an interlocutory appeal of Vaughn’s ruling.

Attorney-Client Communications

In its amicus brief supporting the district court ruling, the New York City bar association focuses narrowly on the issue of attorney-client communications, arguing that the surveillance program will chill such communications, which the association argues are constitutionally protected.

A recent draft of the brief states:

“The program…remains shrouded in secrecy, leaving attorneys with little assurance that their communications with certain clients will remain in confidence. Such a program compromises values that lie at the heart of the First and Sixth Amendments and places lawyers in an untenable ethical dilemma.”

The threat of NSA surveillance leaves in-person communication the only means by which lawyers and clients can ensure the confidentiality of their dialogue, the brief continues.

“As a practical reality, however, such in-person meetings between an attorney and a client abroad may become so burdensome, costly and ineffective that the Program might very well chill all effective communications between these attorneys and their clients, thus undermining the First Amendment right completely,” it maintains.

The brief challenges the Bush administration’s decision to circumvent the Foreign Intelligence Surveillance Act of 1978, the existing statutory framework for authorizing fast-track warrants for national security purposes. Unlike the Bush program, FISA recognizes the importance of preserving the confidentiality of attorney-client communications, the brief notes.

Peter Israel, Vice Chair of LACBA’s Amicus Briefs committee, said Friday he hoped LACBA’s support of the amicus brief would help persuade the Ninth Circuit not to dismiss the case.

“This is an issue that directly affects the ability of attorneys to do their job as attorneys,” he said. “If they can’t depend on having confidential communications with their clients, they can’t depend on the fact that those communications aren’t being listened to by the federal government…then they can’t really do their job as attorneys.”

In addition to LACBA, both the Beverly Hills Bar Association and Bar Association of San Francisco have signed onto the amicus brief.

McSherry said EFF found it “gratifying” that so many in California, where the case originated, are speaking to the issues presented by the case.

“We think the fact that bar associations are willing to step in here as amici shows that they recognize the importance of this case, and the importance of the case going forward.”

Currently, the due date for the plaintiffs’ Ninth Circuit brief is April 9 but is expected to be pushed to April 23, with the amicus brief due 7 days later, the lawyer noted.


Copyright 2007, Metropolitan News Company