Lawyers' Suit over Taping Client Conversations Proceeds

Legal Aid lawyers claiming the government violated their rights by secretly recording attorney-client communications with 9/11 detainees won a major battle in June when a federal judge permitted the bulk of the action to proceed.

The case is unusual in that it centers on the rights and privileges of lawyers operating behind the attorney-client shield, rather than on the rights of the clients.

Eastern District of New York Judge Nina Gershon rejected nearly all of the arguments for dismissal, including qualified immunity, and said the attorneys raised a viable complaint under both the Wiretap Act and the Fourth Amendment. She dismissed a Fifth Amendment claim alleging violations of substantive due process rights, but only because that claim arose from the same alleged injuries and sought the same remedy as the Fourth Amendment claim.

'The oldest privilege for confidential communications recognized by law, the attorney-client privilege, is intended to encourage full and frank communications between attorneys and their clients and thereby promote broader public interests in the observations of laws and the administration of justice,' Judge Gershon wrote in Lonegan v. Hasty, 04-CV-2743. 'That an individual is held in connection with an investigation of terrorist acts does not render that individual ' or his or her attorney ' ineligible for the protections of the Fourth Amendment.'

Gershon's 36-page opinion and order is rooted in the terrorist attacks of 9/11, and the nation's response. In the aftermath, 84 individuals were arrested on immigration charges and detained at the Metropolitan Detention Center (MDC) in Brooklyn. None was ever charged with terrorist activity and most were simply deported.

Between Oct. 23, 2001, and Dec. 31, 2001, lawyers with the Legal Aid Society of New York conducted about 30 interviews with detainees. Officers at the MDC assured the lawyers that the meetings were not being taped. However, an investigation connected to another case led to the discovery of 308 videotapes proving that authorities had recorded meetings between attorneys and their clients.

A probe by the Justice Department's Office of the Inspector General found that meetings between attorneys and their clients were routinely recorded, despite the assurances the plaintiffs claim they were given by officials at the MDC.

In response to those revelations, six Legal Aid lawyers began a federal lawsuit alleging constitutional deprivations as well as statutory violations. The constitutional claims focused on the Fourth and Fifth amendments, and the statutory issues highlighted U.S. Department of Justice policy.

Justice Department policy, codified at 28 C.F.R. '543.13, generally bars auditory monitoring of attorney-client conversations at federal penitentiaries. Six weeks after 9/11, however, Attorney General John Ashcroft issued a directive that effectively amended '543.13 to permit auditory monitoring, but only when there is a reasonable suspicion that the inmates might use communications with attorneys to promote terrorist acts and only upon notice to both the inmate and the attorney (see, 28 C.F.R '543.13(d)).

The lead and initially sole defendant, former MDC warden Dennis Hasty, sought dismissal of the federal action, claiming qualified immunity. Since the suit was initially filed, eight other defendants have been named.

Gershon's decision addresses only the motion brought by Hasty. The defendants added in an amended complaint have been served and were granted an extension to file motions.

No Qualified Immunity

Gershon said Hasty would be entitled to qualified immunity only if the rights in question were not clearly established at the time of their asserted violation. But she pointed out that the 2nd U.S. Circuit Court of Appeals had held as far back as 1987 that, absent a court order or statutory exception, the Wiretap Act bars prison authorities from intercepting communications involving inmates.

'In sum, on the face of the complaint, no reasonable officer in Hasty's position could have believed that recording plaintiffs' communications with Detainees without prior judicial authorization was permitted by the Wiretap Act,' Gershon wrote.

She also said a reasonable warden would 'have been aware of the policies and regulations of his or her own agency prohibiting prison officials from recording attorney-client communications except under narrow circumstances.'

Gershon termed 'misplaced' the defendant's reliance on cases holding that a convicted prisoner does not have a reasonable expectation of privacy within a prison cell. She observed that the plaintiffs in this case are defense attorneys, not convicted criminals, and that the interviews took place in an area designated for attorney-client communications, not in a cell.

'Hasty's argument that the presence of video cameras in the vicinity of the Visiting Area put plaintiffs on notice that their conversations were subject to recording … is unavailing,' Gershon wrote. '[P]laintiffs were told by prison officials that the video cameras were not recording their conversations with Detainees.'

'It is no small matter when the government monitors attorney-client meetings,' Lonegan says. 'If the government were allowed to monitor these conversations, if we were not allowed to have private conversations with our clients, we would not be able to do what we do. This is terribly important.'

Nelson A. Boxer, a partner at Alston & Bird in Manhattan who represents the plaintiffs, says he is 'very encouraged' by the decision, but declined further comment.

Gershon's decision came just days after attorneys for defense lawyer Lynne Stewart filed a memo seeking information on whether Stewart was subject to the National Security Agency eavesdropping program.

Stewart was convicted last year for helping her client, Sheik Omar Abdel Rahman, communicate with a terror organization. Her attorney, Joshua Dratel, filed papers in late June raising concerns that his trial strategy and other privileged communication were essentially leaked to the prosecution through the government's wiretapping program.

Meanwhile, Stewart awaits sentencing, which is now scheduled for September.

Legal Aid lawyers claiming the government violated their rights by secretly recording attorney-client communications with 9/11 detainees won a major battle in June when a federal judge permitted the bulk of the action to proceed.

The case is unusual in that it centers on the rights and privileges of lawyers operating behind the attorney-client shield, rather than on the rights of the clients.

Eastern District of New York Judge Nina Gershon rejected nearly all of the arguments for dismissal, including qualified immunity, and said the attorneys raised a viable complaint under both the Wiretap Act and the Fourth Amendment. She dismissed a Fifth Amendment claim alleging violations of substantive due process rights, but only because that claim arose from the same alleged injuries and sought the same remedy as the Fourth Amendment claim.

'The oldest privilege for confidential communications recognized by law, the attorney-client privilege, is intended to encourage full and frank communications between attorneys and their clients and thereby promote broader public interests in the observations of laws and the administration of justice,' Judge Gershon wrote in Lonegan v. Hasty, 04-CV-2743. 'That an individual is held in connection with an investigation of terrorist acts does not render that individual ' or his or her attorney ' ineligible for the protections of the Fourth Amendment.'

Gershon's 36-page opinion and order is rooted in the terrorist attacks of 9/11, and the nation's response. In the aftermath, 84 individuals were arrested on immigration charges and detained at the Metropolitan Detention Center (MDC) in Brooklyn. None was ever charged with terrorist activity and most were simply deported.

Between Oct. 23, 2001, and Dec. 31, 2001, lawyers with the Legal Aid Society of New York conducted about 30 interviews with detainees. Officers at the MDC assured the lawyers that the meetings were not being taped. However, an investigation connected to another case led to the discovery of 308 videotapes proving that authorities had recorded meetings between attorneys and their clients.

A probe by the Justice Department's Office of the Inspector General found that meetings between attorneys and their clients were routinely recorded, despite the assurances the plaintiffs claim they were given by officials at the MDC.

In response to those revelations, six Legal Aid lawyers began a federal lawsuit alleging constitutional deprivations as well as statutory violations. The constitutional claims focused on the Fourth and Fifth amendments, and the statutory issues highlighted U.S. Department of Justice policy.

Justice Department policy, codified at 28 C.F.R. '543.13, generally bars auditory monitoring of attorney-client conversations at federal penitentiaries. Six weeks after 9/11, however, Attorney General John Ashcroft issued a directive that effectively amended '543.13 to permit auditory monitoring, but only when there is a reasonable suspicion that the inmates might use communications with attorneys to promote terrorist acts and only upon notice to both the inmate and the attorney (see, 28 C.F.R '543.13(d)).

The lead and initially sole defendant, former MDC warden Dennis Hasty, sought dismissal of the federal action, claiming qualified immunity. Since the suit was initially filed, eight other defendants have been named.

Gershon's decision addresses only the motion brought by Hasty. The defendants added in an amended complaint have been served and were granted an extension to file motions.

No Qualified Immunity

Gershon said Hasty would be entitled to qualified immunity only if the rights in question were not clearly established at the time of their asserted violation. But she pointed out that the 2nd U.S. Circuit Court of Appeals had held as far back as 1987 that, absent a court order or statutory exception, the Wiretap Act bars prison authorities from intercepting communications involving inmates.

'In sum, on the face of the complaint, no reasonable officer in Hasty's position could have believed that recording plaintiffs' communications with Detainees without prior judicial authorization was permitted by the Wiretap Act,' Gershon wrote.

She also said a reasonable warden would 'have been aware of the policies and regulations of his or her own agency prohibiting prison officials from recording attorney-client communications except under narrow circumstances.'

Gershon termed 'misplaced' the defendant's reliance on cases holding that a convicted prisoner does not have a reasonable expectation of privacy within a prison cell. She observed that the plaintiffs in this case are defense attorneys, not convicted criminals, and that the interviews took place in an area designated for attorney-client communications, not in a cell.

'Hasty's argument that the presence of video cameras in the vicinity of the Visiting Area put plaintiffs on notice that their conversations were subject to recording … is unavailing,' Gershon wrote. '[P]laintiffs were told by prison officials that the video cameras were not recording their conversations with Detainees.'

'It is no small matter when the government monitors attorney-client meetings,' Lonegan says. 'If the government were allowed to monitor these conversations, if we were not allowed to have private conversations with our clients, we would not be able to do what we do. This is terribly important.'

Nelson A. Boxer, a partner at Alston & Bird in Manhattan who represents the plaintiffs, says he is 'very encouraged' by the decision, but declined further comment.

Gershon's decision came just days after attorneys for defense lawyer Lynne Stewart filed a memo seeking information on whether Stewart was subject to the National Security Agency eavesdropping program.

Stewart was convicted last year for helping her client, Sheik Omar Abdel Rahman, communicate with a terror organization. Her attorney, Joshua Dratel, filed papers in late June raising concerns that his trial strategy and other privileged communication were essentially leaked to the prosecution through the government's wiretapping program.

Meanwhile, Stewart awaits sentencing, which is now scheduled for September.