News & Commentary written by Scott McKay

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Scott McKay


Scott McKay is an accomplished criminal defense and civil litigation attorney. He has a wide breadth of litigation and trial experience and has successfully represented clients in a number of significant cases. Mr. McKay received the Clarence Darrow Award from the American Civil Liberties Union of Idaho for his defense of a Saudi national, Sami Omar Al-Hussayen, acquitted of terrorism charges following a lengthy trial in federal court.

McKay also works on complex civil litigation including pending federal litigation consolidated in New York arising out of the September 11, 2001 attacks. McKay graduated Magna Cum Laude from Gonzaga University School of Law where he served as an associate editor on the Law Review. Following law school he served as a law clerk to the Honorable Byron J. Johnson and the Honorable Linda Copple Trout on the Idaho Supreme Court. He has appeared nationally as a legal commentator on Court TV and has appeared on National Public Radio. He is a member of the Idaho and National Associations of Criminal Defense Lawyers and has served on a number of legal committees including the Judicial Independence and Integrity Committee for the Idaho State Bar and the Electronic Records Committee for the Idaho Supreme Court.

Statement of Scott McKay & David Nevin

We are defense attorneys who communicate with clients and their family members, potential clients, witnesses and potential witnesses via international and domestic calls and emails. We are concerned that, under the new law, the National Security Agency may be monitoring our communications, particularly because there have been numerous reports that the government is monitoring communications in and out of countries in which we have clients.

Confidential communications are the bedrock of criminal representation and essential to our work. We have an ethical obligation to maintain client confidentiality, and we can’t have substantive legal communications about the cases in which we are involved if we can’t ensure that those communications are confidential.

We are joining the lawsuit because the new wiretapping law will make ethical, effective representation of our clients nearly impossible. For example, we have one client in Saudi Arabia for whom representation will require a great deal of communication. Because the new law permits the government to intercept international calls and emails between people in the U.S. and people abroad without a warrant or any real oversight, we will be forced to travel to Saudi Arabia for face-to-face contact every time we want to speak with him or his family about the case, which is entirely impractical. But it will be the only way to ensure our communications are truly confidential.

In addition, we have recently joined the ACLU’s John Adams Project, which was formed to assemble civilian defense teams to assist in the representation of Guantanamo detainees at their military commissions. As part of that Project, we have offered to represent Khalid Sheikh Mohammed, whom the government accuses of masterminding the 9/11 attacks. Our offer of representation has required us to be in regular correspondence with Mohammed’s military defense counsel and to visit Guantanamo on more than one occasion. Our work may require us to correspond with potential witnesses about sensitive information, making us even more susceptible to improper government surveillance.

We are hopeful that this law will be overturned in order protect attorney-client confidentiality, which is essential to the American justice system.