News Release

NSA Secret Wiretap Program Held Unconstitutional

Washington, DC (August 17, 2006) – As plaintiffs in the lawsuit seeking to enjoin the government’s warrantless wiretapping program, the National Association of Criminal Defense Lawyers (NACDL) and its members are grateful for today’s courageous decision by U.S. Judge Anna Biggs Taylor. Judge Taylor held the secret “terrorist surveillance program” (TSP) unconstitutional under the First and Fourth Amendments and separation of powers doctrine, and unlawful under the federal Wiretap Act (Title III) and the Foreign Intelligence Surveillance Act (FISA).

NACDL President Martin S. Pinales explained in a statement issued earlier, “Our Jan. 17 complaint sought declaratory and injunctive relief against the National Security Agency and its warrantless interception of Amercans’ telephone conversations and electronic communications. Such surveillance seriously compromises the First Amendment’s guarantees of freedom of speech, of the press, and of association; the Fourth Amendment’s prohibition on warrantless searches and seizures; and the attorney-client privilege essential to ethical representation.”

As Judge Taylor noted, the government’s secret wiretapping program has severely impaired our members’ ability to confer with clients and witnesses outside the United States. NACDL Past President Nancy Hollander, and NACDL member-plaintiffs Joshua Dratel and William Swor must travel great distances at substantial personal financial costs in order to meet personally with their clients and other persons relevant to their cases. As the judge observed, “The ability to communicate confidentially is an indisputable part of the attorney-client relationship.” The judge quoted University of Michigan legal ethics professor Leonard Niehoff in holding that the secret program “creates an overwhelming, if not insurmountable, obstacle to effective and ethical representation,” and referenced the NACDL plaintiffs’ declarations extensively in her footnotes.

Hollander, Dratel and Swor all represent persons or organizations alleged by the government to have connections with international terrorism. “The Plaintiffs in this case are not claiming simply that the [government’s] surveillance has ‘chilled’ them from making international calls to sources and clients. Rather, they claim that the Defendant’s surveillance has chilled their sources, clients, and potential witnesses from communicating with them. The alleged effect on the Plaintiffs is a concrete, actual inability to communicate with witnesses, sources, clients and others without great expense.,” Judge Taylor wrote in her order.

The NACDL’s mission is to ensure justice and due process for persons accused of crime. “This court believes in the right of our clients, who are all people accused of crimes, to confidentiality, which has long been believed to be essential to the criminal justice system,” Hollander said in a telephone press conference today. “The court has made that clear by finding this program to be improper and illegal. I’m quite relieved, and hope that this decision will turn us in a new direction in this country.” 

To Read Judge Taylor's Decision, Click Here.

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NACDL Communications Department

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.