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2014-02-18

Spying on Lawyers: Snowden Documents Show NSA Ally Targeted U.S. Law Firm

Guests

Michael Ratner, president emeritus of the Center for Constitutional Rights and a legal adviser to Julian Assange and WikiLeaks.

Jesselyn Radack, former ethics adviser to the United States Department of Justice. She is currently director of National Security & Human Rights at the Government Accountability Project, the nation’s leading whistleblower support organization.

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A new report based on leaks by Edward Snowden reveals the National Security Agency played a role in the monitoring of a U.S. law firm that represented the Indonesian government during trade disputes with the United States. According to The New York Times, the NSA’s Australian counterpart told the agency it was spying on trade talks between the United States and Indonesia, including potentially privileged communications between Indonesian officials and the U.S. law firm, Mayer Brown. The document notes the Australian agency "has been able to continue to cover the talks, providing highly useful intelligence for interested U.S. customers." The report by James Risen and Laura Poitras bolsters claims by Snowden and others that the NSA and its allies conduct spying for economic gain. We speak to Jesselyn Radack, legal adviser to Snowden. She is director of National Security & Human Rights at the Government Accountability Project. We are also joined by Michael Ratner, president emeritus of the Center for Constitutional Rights.

Transcript

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: A new report based on leaks by Edward Snowden reveals the NSA played a role in the monitoring of a U.S. law firm that represented the Indonesian government during trade disputes with the United States According to The New York Times, the NSA’s Australian counterpart told the NSA it was spying on trade talks between the United States and Indonesia, including potentially privileged communications between Indonesian officials and the U.S. law firm Mayer Brown. The document notes the Australian agency has been able to continue to cover the talks, providing highly useful intelligence for interested U.S. customers. The report, front page New York Times by James Risen and Laura Poitras, bolsters claims by Snowden and others that the NSA and its allies conduct spying for economic gain. I wanted to bring Michael Ratner back into the conversation, along with Jesselyn Radack. You’re both attorneys. So this is spying on a U.S. law firm. Talk about the NSA and lawyers, which goes to everyone’s legal rights.

MICHAEL RATNER: I mean, I think there’s two big points here. One, you brought out, which is that this is economic spying. And Edward Snowden has said that what will be revealed as we go through these documents are more and more economic spying, and that, essentially, this whole claim that this is about stopping terrorism is just bogus, really. I mean, that’s really what’s going on. And so I think that’s a crucial point here. This was to get an advantage in various trade talks over shrimps, etc.

AMY GOODMAN: So it’s just—for the CIA, for the NSA, it’s a new role after the Cold War. It’s to be a spying arm for U.S. corporations?

MICHAEL RATNER: That’s what it appears to be, that they actually—not only for themselves in trade negotiations, but also may well feed this material to private corporations, U.S. corporations in particular. So I think that’s one thing.

The second thing, we’ve all been concerned for a very long time about spying on attorneys and our clients. And we do know that, for example, if I talk to my client, Julian Assange, that because he at least—we don’t have any—there’s no public indictment of him. We don’t know if he’s actually been indicted; we suspect he is. But according to NSA spying rules, they can actually take in attorney-client conversations with our clients overseas, as long as those clients haven’t been indicted. That’s just wide open. That’s ridiculous. I mean, as an attorney, I have a right of legal confidentiality with my clients, indicted or not. So we know they’re already—already doing that.

In this case, of course, they were taking in a law firm suspected to be this law firm, Mayer Brown, which, interestingly enough, actually helped us with the Guantánamo cases, and they’re taking in what they’re negotiating or what advice they’re giving to the Indonesian government. So it does seem to me at this point that certainly the lawyers’ conversations with Julian Assange and all of our clients—Jesselyn’s, as well, with her clients—are probably—are more likely that—almost for sure just swept in there, no minimization, just every—all of our legal advice to our clients are taken in by the NSA. It’s outrageous. I mean, the question I would have: What happened to Julian Assange’s right to counsel? What happened to it? It’s basically been destroyed by the NSA.

NERMEEN SHAIKH: And, Michael Ratner, why would they conduct this kind of surveillance now of lawyer-client correspondence? Only because they can?

MICHAEL RATNER: Well, I think they want to know everything about what—for example, in the case of Julian Assange or other whistleblowers out there, other publishers, what they’re planning to do, what legal moves they might make. Like, for example, on these recent stories that have come out today, the Glenn Greenwald stories, are we planning to bring a lawsuit? What are we planning to do? If they can get—what’s going to be our—what’s going to be our legal take on it? If they can get advance notice of that, they can begin to counter it in their own publicity and how they deal with it legally, etc. You know, there’s a reason why you have the attorney-client privilege, and that’s so your client can share with you confidentially both what their situation is, as well as what your legal tactics are. Essentially, the government now, it’s wide open what the legal tactics are.

AMY GOODMAN: The Director of National Intelligence James Clapper said in an interview published on Monday that the intelligence community should have told the American public about secret phone data collection when that program first began years ago. He told The Daily Beast, quote, "I probably shouldn’t say this, but I will. Had we been transparent about this from the outset right after 9/11—which is the genesis of the 215 program—and said both to the American people and to their elected representatives, we need to cover this gap, we need to make sure this never happens to us again, so here is what we are going to set up, here is how it’s going to work, and why we have to do it, and here are the safeguards… We wouldn’t have had the problem we had." Let me get your response to that, Michael Ratner, and then I’d like to hear from Jesselyn Radack and ask you, Jesselyn, as an attorney representing Edward Snowden, if you have any confidential way to communicate with him.

MICHAEL RATNER: I don’t see how he could say there wouldn’t have been a dramatic negative response to broad-scale government spying on all our phone calls. I mean, what happened is, it came out, it came out without the government saying it, and there was a huge response. I mean, it changed the perceptions in this country about the one that the NSA is doing. I don’t think it would have made any difference had they put that forward in a different way. In fact, the one case where they finally admitted it, with the warrantless wiretapping, there was a huge outcry about that. So I think this is—this is fictitious. They shouldn’t be doing it. They shouldn’t be surveilling Americans’ phone calls. They should get probable cause. And that’s the only way, in my view, that you can actually do surveillance.

AMY GOODMAN: Jesselyn Radack?

JESSELYN RADACK: I found what Clapper said completely disingenuous. We know that he perjured himself before Congress, under oath, on camera, with no consequence. And this again strikes me as one of the least untruthful of his statements, so I take that with a grain of salt. He thinks it should be known, because they got caught, and that is the only reason he continues to makes these opportunistic statements.

In terms of monitoring, I assume I am being monitored. I am encrypted to the hilt. I’m not going to say what encryption techniques I use, but it’s a really unfortunate way to do business as a lawyer to have to pretty much arrange meetings in person with your client and to have to be so encrypted and get into a very encrypted environment anytime you want to communicate. And in terms of spying on attorney-client relationships, you have to remember, NSA is collecting bulk metadata. They don’t have some carve-out for attorneys and clients. They don’t have a carve-out for doctor-patient communications. They don’t have a carve-out for communications between accountants and their clients. They have access to any of that information, should they choose not only to collect it, but to go ahead and look at it. And there have been other instances, not only economic, but spying on political enemies like the Muslim charity al-Haramain. And that case was not allowed to proceed because of, I believe, state secrets privilege in that particular one, where the government accidentally sent them the transcripts of recorded attorney-client conversations.

So, the fact that this has occurred and has occurred a number of times and is now being documented, really it’s incumbent upon attorneys to use encryption. I have a disclaimer that my organization, the Government Accountability Project, you know, came up with, a disclaimer on every email that this communication may be monitored and collected without consent, in secret, by the NSA. I mean, I think everybody should have that kind of statement after their email, because I think it would raise public awareness about how insidious and widespread this problem is.

AMY GOODMAN: Jesselyn Radack, we have—

JESSELYN RADACK: But if you’re an attorney in—

AMY GOODMAN: We have to wrap up, but I did want to ask—

JESSELYN RADACK: Sure.

AMY GOODMAN: If you hadn’t answered those questions at the airport, do you think you would have been barred from entry or arrested, like David Miranda was, detained?

JESSELYN RADACK: I certainly feared that, yes. And I feared that if I gave the wrong answers or was flip with them in any kind of way, that, yeah, if I gave them any kind of grief whatsoever, yes, that was actually my fear.

AMY GOODMAN: Today is a big anniversary, Michael Ratner. What is it?

MICHAEL RATNER: Well, today is the fourth anniversary, the actual day today, of the release by WikiLeaks of Reykjavik 13, which was the first Cablegate document released, which is the one that was showing there was pressure on Iceland to try and concede to IMF, etc., demands when they were going through their difficult economic period. It’s the first one of the Cablegate documents. So it’s that anniversary. And just to give us some lightness, it’s my daughter Ana’s birthday today. So that’s a way to get that in, but...

AMY GOODMAN: Happy birthday, Ana. Well, thank you, Michael Ratner, for being with us, president emeritus of the Center for Constitutional Rights, which is the legal adviser to Julian Assange and WikiLeaks. And thank you, Jesselyn Radack, for joining us, former ethics adviser to the Department of Justice under George W. Bush, currently director of National Security & Human Rights at the Government Accountability Project. This is Democracy Now! When we come back, we’re going to Houston to speak with The New York Times reporter Steven Greenhouse about a big labor defeat in Tennessee, the UAW defeat in a Volkswagen plant. Stay with us.

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