Brief for Amicus Curiae National Association of Criminal Defense Lawyers in Support of Plaintiff-Appellant.

Argument: For two weeks, the Federal Bureau of Prisons (“BOP”) and Warden Herman Quay denied inmates at the Metropolitan Detention Center in Brooklyn (“MDC”) access to counsel and confined them to their cells with no light, little to no heat in the dead of winter, and no access to essential medical treatments. The District Court held that only the inmates themselves could bring suit to remedy the situation. This case presents a question of prudence not standing. The Federal Defenders should have the ability to enforce the right to counsel. The effective assistance of counsel is central to the functioning of our adversarial system. Assistance of counsel is impossible without attorney-client access. The Federal Defenders have strong incentives to protect the right to counsel. The Federal Defenders are an ideal candidate for enforcing the right to counsel.

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of respondents.

Argument: Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. 1881a (Supp. II 2008)-referred to here as Section 1881a - allows the Attorney General and Director of National Intelligence to authorize jointly the "targeting of [non-United States] persons reasonably believed to be located outside the United States" to acquire "foreign intelligence information," normally with the Foreign Intelligence Surveillance Court's prior approval of targeting and other procedures. 50 U.S.C. 1881a(a), (b), (g)(2) and (i)(3); cf. 50 U.S.C. 1881a(c)(2). Two of the plaintiff-respondents in this case are criminal defense lawyers for whom confidentiality is essential in their work. They are seeking both a declaration that Section 1881a is unconstitutional and an injunction permanently enjoining any foreign-intelligence surveillance from being conducted under Section 1881a.

In light of every attorney’s duty of confidentiality, the petitioners, both “United States persons,” are wrong to contend these plaintiff-respondents allege merely “speculative” and/or “self-inflicted injuries” from surveillance under the FISA Amendments Act (FAA), §1881a. FISA surveillance targets regions, persons and subjects heavily implicated by matters in which the respondents serve as defense counsel. They thus must choose between foregoing international communications about sensitive matters or incurring the expense and burden of traveling overseas for in-person communication. The court of appeals should be affirmed.