NACDL - National Association of Criminal Defense Lawyers
National Security
NACDL recognizes that under the banner of the “war on terrorism,” America’s fundamental constitutional protections have been under unprecedented attack. Since the tragedy of 9/11, the government has engaged in unparalleled assaults on a range of constitutional rights, including the right to due process and the right to privacy.
NACDL seeks to resist this trend on both on a systemic and case-by-case basis to expose and combat the ongoing incursions into our civil rights in the name of national security.
Below, you can find a wide range of resources that we provide on National Security issues.
By Joshua L. Dratel, Co-Chair of NACDL’s National Security Committee
"I have a unique but direct perspective with respect to 215. Since 2010, I have represented Basaaly Moalin, a Somali-American whose federal criminal prosecution and conviction in San Diego — for sending approximately $15,000 allegedly to al Shabaab in Somalia in 2007–08 — was predicated on section 215 collection and retention. It is the only criminal case in the nearly two decades of the program’s existence in which the government claims section 215 played any role."
The government's mass interception and scanning of Americans' Internet communications is a search and seizure, triggering the Fourth Amendment's warrant requirement. The "special needs" exception to the warrants requirement cannot justify the government's surveillance program. Foreign Intelligence is not the "primary purpose" of the NSA's dragnet surveillance program. The impact of the intrusion from the NSA's Internet surveillance outweighs the government's need. The privacy interests harmed by upstream surveillance outweigh the government's interest in the program. Indiscriminately seizing and searching communications will include attorney-client communications and therefore impact individuals' Sixth Amendment rights.
Coalition of the Human Rights and Security Coalition submitted a statement to the Senate Judiciary Committee to urge the closure of Guántanamo Bay at it reaches its 20th anniversary.
Coalition letter to President Biden regarding the absence thus far of executive actions addressing discriminatory and militarized policing in Black and Brown communities.
"Despite the repeated evidence of significant issues with the implementation of these intelligence authorities, the House introduced and passed a reauthorization bill without a committee mark up or any debate. Although the House bill did make some significant changes, it did not go nearly far enough to address the serious constitutional concerns that have come to light over the past four and half years."
"In the four years since the USA FREEDOM Act was passed, several revelations have made clear that the FISA authorities in question lack sufficient safeguards for Constitutional rights, and that agencies have not even complied with the safeguards that exist. Such sweeping surveillance authorities that have repeatedly been shown to violate privacy rights should not be passed without open debate and opportunity for amendment."
"It is critical that the House Judiciary Committee, which is the committee of primary jurisdiction over FISA, advance reforms that reflect the priorities of its members and protect their constituents from unwarranted invasions of their privacy and other constitutional rights."
On May 23, 2018, NACDL held a free webinar about the practice of government evidence laundering, known as “parallel construction." When the U.S. government launders the origin of evidence obtained in criminal cases, it is able to obscure secret surveillance technology or potentially unconstitutional investigative methods from the accused in criminal cases. The webinar featured Brian Pori, a federal public defender from New Mexico with extensive experience leading trainings on government evidence laundering, and Sarah St. Vincent, the author of Human Rights Watch's comprehensive investigative report “Dark Side: Secret Origins of Evidence in US Criminal Cases."
Protecting Your Digital Devices at the Border
Read "Protecting Your Digital Devices at the Border: A Criminal Defense Lawyer's Primer" here and find the companion case list here.
This primer aims to educate attorneys about the implications of CBP's claimed powers and offer strategies that will help them comply with their ethical obligations and responsibilities to their clients when entering the U.S. Along with the primer, NACDL compiled a resource of district court cases that deal with the border search exception and digital devices, with special attention paid to the influence of Riley v. California.
On January 4, 2018, Customs and Border Protection (CBP) released a directive on the border searches of digital devices that made significant changes to the practicesthat NACDL detailed in “Protecting Your Digital Devices at the Border: A Criminal Defense Lawyer's Primer." The directive includes specific procedures to protect attorney-client privilege and work product doctrine, as well as a dangerous new provision that asserts travels have an "obligation" to provide CBP with their device passwords. You can learn more about the directive from Esha Bandari at the ACLU, the Deeplinks blog at the Electronic Frontier Foundation, and Edward Hasbrouck's two-partanalysis of the password provision.
Digital Device Search Webinar
U.S. Customs and Border Protection (CBP) searches the digital devices of people at border crossings and at ports of entry without a warrant and without suspicion. NACDL members are uniquely exposed to abuse in this context: digital devices store materials and information subject to the attorney-client privilege and attorney work-product doctrine, as well as information on overseas clients and witnesses, and other extremely sensitive materials that could be covered by Rule 1.6 of the Model Rules of Professional Responsibility.
The webinar was presented by Esha Bhandari, a staff attorney with the ACLU Speech, Privacy, and Technology Project, where she focuses on litigation and advocacy relating to online speech, academic freedom, privacy rights, and the impact of big data.
Section 702
The Open Technology Institute published an excellent visualization of all recorded compliance violations of Section 702 of the Foreign Intelligence Surveillance Act. View "A History of FISA Section 702 Compliance Violations" at the New America website here. NACDL recently signed a letter in opposition to the first version of the USA Liberty Act, a House Section 702 reform bill that fails to strengthen the warrant requirement for searching databases containing Section 702 content. The USA Liberty Act also increases sentences for knowingly removing classified documents and creates a new crime of negligently removing such documents.
Use NACDL's tool to contact your Representative today to urge them to strengthen the USA Liberty Act or let Section 702 sunset!
NACDL hosted a webinar featuring the expertise of Colin Fieman, an Assistant Federal Public Defender and lead counsel in the first “Operation Pacifier" cases, and Paul Ohm, a law professor and specialist in information privacy, computer crime law, intellectual property, and criminal procedure.
The guide, “Challenging Government Hacking in Criminal Cases," examines recent court decisions on the government's use of malware in the context of Fourth Amendment protections from unreasonable searches.
