Ordinarily lawyers can fulfill that obligation without worrying that their conversations and communications will be intercepted. The genuine fear that lawyers' conversations with their clients, with their experts, with other lawyers, and with witnesses are not confidential, but in fact are intercepted by the government without any judicial or other independent oversight, casts a pall over the investigation and preparation of any defense. As a result of this NSA program (and the disclosure of its existence), lawyers will no longer be able to communicate candidly and completely by means that were previously thought immune from government intrusion.
More importantly, those from whom lawyers seek information, particularly those outside the United States, will be justifiably reticent to share information if they fear, as they can do now reasonably, that the government is a party to the communication. Consequently, a defendant's Sixth Amendment right to effective assistance of counsel will be irreparably impaired, and the right to a fair trial irretrievably compromised. Moreover, lawyers themselves may be reluctant to pursue the investigation they are ethically and constitutionally obliged to provide for fear that the government, intercepting their conversations, will in turn view them as targets, or as linked to terrorism or terrorist organizations. Similarly, academic and other experts, and witnesses in general, will also recoil from that possibility, and will no longer be available as defense resources in these types of cases.
My representation of persons accused or suspected of terrorism-related offenses is grounded in the goal of protecting this country's security -- the security of its institutions, such as the Constitution, the Bill of Rights, and the criminal justice system, and the principles that our troops overseas are defending: that we are a nation of laws, and not men.
Until this NSA Program was revealed, those of us involved in such cases could rest assured that our efforts and communications were free from interference unless a United States District Court judge approved electronic surveillance pursuant to the standards of the Foreign Intelligence Surveillance Act. That comfort level no longer exists, and it has sent a chill through the legal community and those upon whom it relies for assistance and information. The result is a denigration and diminution of the rights afforded under the Fourth, Fifth, and Sixth Amendments. I am grateful that ACLU and NACDL are willing to be at the forefront of the effort to halt the government's unlawful conduct, obtain remedies for such conduct already committed, and hold those responsible accountable in order that such conduct not be repeated.
