In the 1960's and the 1970's the FBI, CIA and the Chicago Police Department followed me, kept files on me, wrote about my anti-war and civil rights speeches, made copies of my writings, took my picture. I was not a lawyer then and although their activities were clear attempts to chill my First Amendment rights, they failed.
In the 1980's, after I became a lawyer, the Albuquerque Police Department began collecting files on activists and lawyers. We sued but the police destroyed the files before we saw them. Once again the police had tried to chill my First Amendment rights, but they could not.
This time the government has succeeded in chilling my First Amendment rights and jeopardizing my clients' First, Fourth, Fifth and Sixth Amendment rights. This time the government has gone far beyond listening to what I say in public, making endless copies of public speeches, taking photos. This time the government has invaded not only my privacy but the sacred bond I have with my clients to keep their confidences.
The oldest privilege within the common law tradition on which this country was founded is the attorney-client privilege. A client has every right to believe that what he or she tells a lawyer in confidence will be secure. But now there is every indication that the government has listened to conversations I have had with my clients both here and abroad. My practice requires that I speak with lawyers living abroad, with witnesses and experts around the world. I no longer use the telephone, fax or email to communicate with clients, lawyers, witnesses, experts in any of my cases that involve terrorist related charges. I must travel the world to represent my clients as they have the right to be represented–zealously within the bounds of the law and with their confidences and my work-product protected.
Congress passed the wiretap laws and the FISA to provide access to telephone, email, and faxes when necessary to protect the security of the country. If those laws are violated, we can ask a court to suppress the evidence. If we believe the laws are unconstitutional, we can ask a court to find them so. If the Executive chooses to take it upon itself to ignore the Constitution and the laws Congress has passed, we have no recourse and our democracy is in peril.
As a member and Past-President of NACDL, I am proud that NACDL has joined the ACLU in this important litigation.