Thomas Nelson, an Oregon attorney representing two lawyers has filed a public complaint against individuals responsible for the interception of attorney-client communications as part of the NSA domestic surveillance program.  

Nelson previously went public with the interception claims raised as part of the Al-Haramain case.  For the full story, click here

The Ninth Circuit recently rejected efforts to use an inadvertently disclosed document in the case. For an earlier entry, click here

Below is the text of Nelson’s public letter:

I am writing on behalf of two attorneys licensed to practice law in the United States, Wendell Belew and Asim Ghafoor, both of whom live in the District of Columbia area.  Each of them at the times relevant hereto was working professionally on behalf of Al-Haramain Islamic Foundation, Inc., an Oregon Islamic charity (“AHIF Oregon”), and Soliman Al-Buthi, a Saudi Arabian citizen who then was a director of AHIF Oregon and is now Director of Environmental Safety for the Capital City of Riyadh. 

In the winter and spring of 2004, in the course of their professional representation of AHIF Oregon and Mr. Al-Buthi, Messrs Belew and Ghafoor came to have international telephone conversations with Mr. Al-Buthi.  In August 2004 the Office of Foreign Assets Control (“OFAC”), an office of the Department of Treasury, inadvertently released to attorneys for AHIF Oregon and Mr. Al-Buthi a log of intercepted telephone conversations between Mr. Al-Buthi on the one hand and his referenced attorneys on the other.  In September 2004 OFAC AHIF Oregon and Mr. Al-Buthi as “specially designated global terrorists,” or“SDGTs.” With the announcement of the NSA “Terrorist Surveillance Program” (“TSP”) in December 2005 it became clear that the intercepted privileged telephone communications had occurred in the absence of a warrant issued by the Foreign Intelligence Surveillance Court.  OFAC’s inadvertent release of the log, when combined with the designation of AHIF Oregon and Mr. Al-Buthi as SDGTs in September 2004, established that OFAC had used intercepted conversations in its decision to designate AHIF Oregon and Mr. Al-Buthi notwithstanding (i) that the information in the log was obtained without a proper judicial warrant, and (ii) that the interceptions were of privileged attorney-client communications.  

Attorneys occupy a position of special trust in the American judicial system.  Not only must attorneys not act illegally, they must act in conformance with legal ethics at all times – even when the conduct itself if engaged in by a non-attorney would not be technically illegal.  In the context of the NSA’s warrantless interception of privileged attorney-client communications, we believe that such conduct itself violates the criminal prohibitions of the Foreign Intelligence Surveillance Act, specifically 50 U.S.C. § 1809.  Here, of course, the interception itself was not only illegal, it was a direct invasion of the privilege of attorney-client communications. 

While each attorney is responsible for his ethical conduct to the jurisdiction which authorized him or her to be admitted to the bar, it is an almost universal requirement that attorneys not knowingly receive, review, or use information or material that is the subject of a valid attorney-client privilege.  For example, the American Bar Association’s Model Rule of Professional Conduct 4.4(a) provides, “In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.”  (Emphasis added.)  Moreover, attorneys under the jurisdiction of the Office of Professional Responsibility cannot use a nonlawyer (such as an investigator) to unlawfully obtain conversations otherwise protected by the attorney-client privilege and by other substantive law.  ABA Model Rule 8.4(a) provides:  “It is professional misconduct for a lawyer to:  (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another . . . .”

 In sum, it seems clear that the wiretapping that occurred pursuant to the TSP was illegal because it was not supported by a valid warrant.  See 50 U.S.C. § 1809.  The Office of Professional Responsibility’s analysis must go further than merely determining whether criminal conduct occurred; it must investigate whether Department of Justice employees and those acting in concert with them acted unethically in intercepting attorney-client communications without a warrant and then using the information so obtained to the detriment of the attorneys’ clients.  It is this latter issue that we respectfully request your office to investigate and decide. I would be happy to provide any additional information you desire. 

Please let me know if you have any questions. 

Very truly yours, 

Thomas H. Nelson 

Attorney for Wendell Belew, Esq.  and Asim Ghafoor, Esq.