Statement - Association of the Bar of the City of New York, Beverly Hills Bar Association, Boston Bar Association, Los Angeles County Bar Association and the Bar Association of San Francisco

The above five bar associations are urging the U.S. Court of Appeals in Cincinnati to affirm a lower court ruling that permanently enjoined the National Security Administration’s warrantless surveillance program.

The NSA surveillance program threatens to undermine a fundamental principle of a just legal system: That persons accused by the government of wrongdoing have access to legal advice and that such legal advice can only be effective if lawyer-client communications are conducted in confidence uninhibited by fears that government agents are listening in.

In the wake of a newspaper report that the NSA had been engaged in warrantless wiretapping of American citizens since 2001, the President announced that he had authorized and would continue to authorize such surveillance so long as the perceived threat posed by al Qaeda and other terrorist organizations continued. This includes even communications between lawyers and their clients, communications that long had been protected by our laws under a “seal of secrecy.”

The NSA Program chills those who perceive themselves as potential targets from seeking the advice of American counsel — a right that they enjoy by virtue of the First Amendment’s free speech clause and the Sixth Amendment’s guarantee of the effective assistance of counsel.

Since the details of the Surveillance Program were revealed, lawyers have faced a difficult ethical dilemma as they have been torn between their duties to render thorough legal advice on the one hand, and the obligation to keep client secrets on the other.

The NSA’s admitted practice of wiretapping communications in the name of national security—without a court order and pursuant to undisclosed standards that are never subjected to judicial scrutiny—chills a broad spectrum of constitutionally protected speech, including communications between attorneys and their clients. The NSA Surveillance Program should be struck down because fundamental rights, including the right to counsel, are being impermissibly and unnecessarily undermined.