Lawyers for terror suspects wary of eavesdropping

Thomas Nelson, an Oregon lawyer, has lived in a state of perpetual jet lag for the last two years. Every few weeks, he boards a plane in Portland and flies off to the Middle East to meet with a high-profile Saudi client who cannot enter the United States because he faces terrorist-financing charges here.
Nelson says he does not dare to phone his Saudi client or send him e-mails out of what many prominent criminal defense lawyers here say is a well-founded - and growing - fear that all of their attorney-client contacts are being monitored by the government.

Because he is constantly shifting time zones to see his client face-to-face, "I just don't sleep normally anymore," Nelson said. "But I don't have a choice. It's very clear to me that anything I say to my client or to other lawyers in this case is being recorded."

All around the United States, and especially in Oregon, it seems, lawyers who represent suspects in terrorism-related investigations complain that their ability to do their jobs is being hindered by the suspicion that the government is listening in, using eavesdropping authority it obtained - or granted itself - after the Sept. 11, 2001, terror attacks.

Steven Wax, a Portland lawyer who is also involved in several terrorism cases, says he now tells clients to assume that everything they say to him is being secretly monitored by the government. Wax says he now "self-censors" his e-mails, even to other lawyers and friends. The situation, he says, has elements of "Kafka and Alice in Wonderland."

The Justice Department does not deny that the government has sometimes monitored attorney-client phone calls and e-mail exchanges as part of its investigations of terrorist suspects in the United States and overseas since the Sept. 11 attacks. But in cautiously worded court statements the department is careful to insist that if there has been surveillance of lawyers involved in terrorist cases, it has been handled in strict accordance with federal law and with the Constitution's promise of a criminal defendant's right to counsel.

"We do conduct ourselves ethically and adhere to our responsibilities under the rules of ethics," a Justice Department lawyer, Anthony Coppolino, told a federal judge in Portland in a court hearing this month on the issue.

The department's promises of ethical conduct have met with special skepticism in Oregon, where lawyers believe they have seen proof of a secret government effort to monitor their communications with clients in terrorism-related cases.

In a terrorist-financing investigation centered on the offices of an Islamic charity here, the government mistakenly provided defense lawyers in August 2004 with what the lawyers say was a logbook of intercepted phone calls between the charity's lawyers in Washington and clients in Saudi Arabia.

The charity's lawyers say the logbook, which was stamped "top secret," appeared to reflect eavesdropping under the National Security Agency's warrantless wiretapping program.

After the government realized its mistake, defense lawyers were ordered to return all copies of the logbook to the FBI and warned that they could risk prosecution themselves if they disclosed details of its contents.

It is believed to be the only case in which nongovernment lawyers anywhere in the country may have seen evidence of the NSA's so-called Terrorist Surveillance Program, which has been described by many legal scholars, lawmakers and civil liberties groups as unconstitutional since it allowed the monitoring of the phone calls of American citizens without a court's permission.

Sean Maher, co-chairman of the national security committee of the National Association of Criminal Defense Lawyers, said he knew talented private lawyers who were refusing to take on terrorism cases because of potential violations of their privacy, including monitoring of their communications with clients.

Lawyers who agree to defend terrorist suspects in cases involving classified information are required to undergo background checks that can include an FBI review of their financial and medical records, including records of psychiatric care.

"People just aren't going to get involved in this process," Maher said. "I find it unfathomable that in our adversarial system, we've created a process to weed out qualified defense counsel."

The anxiety among defense lawyers has only grown worse with the Bush administration's efforts to get Congress to pass a bill that would permanently ease restrictions on domestic wiretapping in national security investigations.

For now, Democratic congressional leaders and the White House are at a stalemate over a bill sought by the administration to broaden the government's eavesdropping powers and give legal protection to phone companies that cooperated in the past in the warrantless domestic wiretapping program.

Although the Bush administration says it shut down the NSA wiretapping program, lawyers involved in the Oregon case say they still believe their contacts with their clients - and among themselves - are being monitored.

They went to federal court in Portland this month to ask a judge to intervene to defend the sanctity of the attorney-client privilege.

During a court hearing in Portland this month, Coppolino, the Justice Department lawyer dispatched from Washington, refused to say if the government, in continuing to investigate the charity, was conducting electronic surveillance of the charity's defense lawyers, as well. "To confirm the latter, you would be confirming the former," he said.

A Justice Department spokesman in Washington would not comment on the Oregon case beyond the little that has been disclosed in court papers.

A few private lawyers around the country have found themselves under criminal investigation in recent years as a result of terrorism-related cases. In New York, Lynne Stewart, a prominent civil rights lawyer, was convicted in 2005 of helping an imprisoned terrorist leader communicate with his extremist Muslim followers in Egypt and elsewhere. Prosecutors said the messages were passed along to her in supposedly private jailhouse meetings with her client. She was sentenced to 28 months in prison.

Other criminal defense lawyers who have found themselves representing terrorist defendants since Sept. 11 say they have no special fear of government surveillance as a result of their work.

Edward MacMahon, a Virginia lawyer who represented Zacarias Moussaoui, the French-born Muslim extremist who pleaded guilty to involvement in the Sept. 11 plot, said he believed the federal judges he knows would act swiftly to shut down illegal government monitoring of his work, especially if it infringed on a defendant's rights. "Judges have respect for the lawyer-client privilege," he said.

Two senior Justice Department officials, speaking on the condition of anonymity because the department has not authorized them to discuss the issue with reporters, said they knew of only a handful of terrorism cases since the Sept. 11 attacks in which the government might have monitored lawyer-client conversations. They said they understood that the intercepted conversations were not shared with front-line prosecutors in an effort to be certain that there was no violation of attorney-client privilege.

"If a terrorist suspect living in a foreign country is calling into the United States and all of his calls are being monitored, the calls to his lawyers here might be intercepted, as well," one of the officials said. "It's not as if we're targeting the lawyer for surveillance. It's not like we're eager to violate lawyer-client privilege. The lawyer is just one of the people whose calls from the suspect are being swept up."

Still, lawyers in Portland and in Washington who represented the now-shuttered Oregon offices of the prominent Saudi charity, al-Haramain Islamic Foundation, said they believed the government foul-up that allowed them to see the classified logbook in 2004 offered proof of what they insist was improper monitoring of their communications with clients. The government has accused al-Haramain of fund-raising for terrorist groups, including Al Qaeda.Although the lawyers are now barred by court order from discussing many of the details of what was in the secret logbook, they had said previously that it logged the date of calls between two of al-Haramain's Washington-based lawyers, Wendell Belew and Asim Ghafoor, with the charity's officials in Saudi Arabia. The two lawyers have since sued the government for illegally spying on them.While the Bush administration insists that the warrantless wiretapping program has ended, Belew and other lawyers say they are concerned that the government has simply found another way of monitoring lawyer-client conversations - perhaps through use of secret warrants obtained through the Foreign Intelligence Surveillance court, a special court used in national security cases. The earlier NSA program bypassed the surveillance court.Lynne Bernabei, another Washington lawyer representing al-Haramain, said the defense team had detected at least two recent instances in which the Justice Department appeared to have tipped off to defense strategy through monitoring of conversations among the lawyers. In one case, after months of delay, the Treasury Department hurriedly granted a special license to a member of the defense team to represent the charity before the government. The license was granted, she said, after defense lawyers privately complained among themselves about the delay. "The timing could have been coincidence," she said. "The more likely thing was that they were reading e-mails sent among the lawyers."

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