Saturday, November 01, 2008

Attorney - Client Privilege ?

In the never ending saga of warrantless wiretaps by the Bush administration, a federal judge has ordered the Justice Department to produce White House memos that provide the legal basis for the Bush administration's post-Sept. 11 warrantless wiretapping program.

What I find amazing, is the claim of attorney - client privilege by the Justice Department as the rationale to withhold release of these memos. Am I wrong in thinking that the clients of the Executive Branch are We, The People? While it was the President who requested a legal opinion, and the Justice Dept who rendered same, the notion that the Justice Dept represents the President to the exclusion of the people is a rather unique twist. Had Bush sought legal advice from in house counsel, perhaps he would have a legitimate case, but when Justice provides this counsel and then seeks to hide it from the people, is that not a conflict of interest of mammoth proportions? In a situation such as this, who then, represents the people? Do I, as a citizen, have the same protection in my communications with a Justice Dept lawyer? I would seriously doubt it.

I guess the approach is to start by claiming "National Security". Then claim "Executive Privilege". Now, "attorney - client privilege". Next, perhaps, we will hear that these memos were exchanged using personal Yahoo e-mail accounts, and are thus private, personal communications, not governmental ones.

In the broadest and most extreme of views, this reeks of a government that has turned upon its people.



mike said...

This was an appropriate post Al, considering that FISA had its 30th anniversary just one week ago last Saturday on October 25th. It was signed into law during the Carter administration. But actually, it was Gerry Ford, a Republican, who started the ball rolling back in early Spring of 1976 when he gave his backing to the bill. Odd since just a few months earlier he was claiming Executive Privilege for NSA and FBI employees who were being called by the Church Committee in the Senate and by Bella Azbug's committee in the House. But I believe those were for wiretaps that happened under Nixon and not Ford.

The FISA Court has always been a rubber stamp. So I still do not understand why Bush sought a go-around. Jimmy Carter's CIA Director Stansfield Turner complained that prior to FISA there were always a rejection or two and there were none after FISA. Both Cheney and Rumsfeld were in the thick of it during the Church and Azbug committees. So I am convinced they were the ones that talked the boy king into breaking the law. It is a shame that the US Justice Department backed them up.

With the vacuum-like intercept technology available today, I suspect that the Agency has some concerns about separating purely domestic comms from international and separating comms from US citizens from foreigners. I am not privy to nor smart enough to determine whether or not those concerns are legitimate. In any case, we need to revisit FISA and upgrade the court to be able to do their business in the 21st century. With the explosion of technology in the fields of computers, software, satellite comms, microwave, and fiber; the law has not caught up. FISA still depends on individual judges a few of whom may be computer illiterate. And I would doubt that many of them have the technical background to really understand some of the items used as probable cause in pursuit of a warrant.

I would nominate Captain Carter to an appointment to the FISA Court - or someone of his caliber. Better that than the job that FDChief suggested for him. ;-)

mike said...

"I suspect that the Agency has some concerns about separating purely domestic comms from international and separating comms from US citizens from foreigners."

Should have read:
"I suspect that the Agency has some concerns about being able to separate ...."

mike said...

".... some concerns about being technically capable of separating ...."


Charles Gittings said...

Heh. Welcome to my world...

For extra credit kiddees, Google up CREW vs. OVP, a cheerful little civil action in the DDC asking that the Office of the Vice Presidnet be enjoined from (ahem) destroying any records that might pertain to the functions of the executive branch that, (ahem) the OVP is not actually part of except when it (ahem) is (or something), which in turn led to a temporary injunction to preserve any and all such records followed by a second order to depose certain officials including (ahem) David Addington, in order to determine just exactly what criteria OVP actually thinks is applicable to detstroying and / or preserving such records under existing law (which is something they don't much want to explain in any great detail it seems), which in turn promted a frantic little mandamus petition to the D.C Circuit demanding that the CAD order that meddlesome old biddy at the DDC to mind her own business, and meanwhile the injunction is still in effect and the clock goes tickety-tickety-tock...

sheerahkahn said...

My sincerest desire is that in his first Address to the Union, Obama declares that the government will be transparent and open all documents pertaining to the last 20years.
Kinda, sorta like the Amnesty program that South Africa instituted when aparteid finally ended because the truth right now is the only thing that will heal this nation.

Publius said...

Well, damn, Al, I always claim national security. My wife asks me about something I've done, "can't talk about it," it's national security. Every old spook knows this one.

And that's who's driving all of this: old spooks, guys who grew up keeping secrets and never talking about what they did, other than to each other.

Why shy away from FISA? I think it's the whole secrecy thing, plus fundamental incompetence as well as arrogance and laziness. FISA is a user-friendly court, and I can't imagine that a well-constructed brief wouldn't end up in a warrant. The unfortunate reality is that, as we've seen, the White House and Justice Department are Ground Zero for shit work. Throw laziness and arrogance into the mix—"shit, man, we can do anything we want; we don't need to go through this dot the "i" and cross the "t" BS"—and you've got the recipe for yet another fuckup.

And then there is NSA. Mike's probably right: they couldn't ensure the proper degree of separation. But there are procedures for the occasional lapse. I suspect that what BushCo wanted wasn't feasible at all. "Vacuum cleaner" isn't allowed, but apparently it went on, despite the strictures placed on individuals in that community. Something else to think about.

I disagree with Mike on one point: FISA judges are slick dudes. I doubt any of 'em are computer illiterate, and I'm not sympathetic to the argument that, "well, they don't have the technical background." It's not their job to have the technical background; it's the job of those with the technical background to convince them that the proposed actions are consonant with the Constitution and the law. You think NSA or Justice Department lawyers have that technical background, Mike? If those lawyers can't package what they want to do in an honest and judge-friendly format, they need to find other jobs. I personally have spent a lot of frustrating hours educating lawyers on the arcana of intelligence work. It's what you've got to do. Otherwise, you don't do it.

Just more shoddy work from the Bush Administration. Just more shit to be cleaned up, beginning next year. And, you know what, beginning Jan 20, 2009, if the polls are accurate, nobody's going to give a shit about this particular claim to attorney-client privilege. Both the attorney and the client will have changed.

Next: Keeping an eye on the Obama Administration. And, believe me, it will be necessary.

1138 said...

Hope Wins!

1138 said...

Don't expect the world to change Obama is a practical man.
The removal of all secrets wham bam would be a disaster.

I'll settle for honesty of intent, that would be an earth shattering change.