Did the NSA violate attorney-client privilege in domestic surveillance?

posted at 11:01 am on February 16, 2014 by Ed Morrissey

Technically no, but if the latest revelations from Edward Snowden are true, perhaps only technically. One document from the Snowden trove provides a glimpse at how the NSA could get around FISA safeguards on domestic intelligence-gathering by partnering with an allied nation to get the information NSA could not legally collect. But did it? The Australian Signals Directorate offered to share data it collected on an American law firm that represented another government in a trade dispute, the New York Times’ James Risen and Laura Poitras report, and may have compromised attorney-client privilege — but did the NSA bite? The answer is far from the lead (via Instapundit):

A top-secret document, obtained by the former N.S.A. contractor Edward J. Snowden, shows that an American law firm was monitored while representing a foreign government in trade disputes with the United States. The disclosure offers a rare glimpse of a specific instance in which Americans were ensnared by the eavesdroppers, and is of particular interest because lawyers in the United States with clients overseas have expressed growing concern that their confidential communications could be compromised by such surveillance.

The government of Indonesia had retained the law firm for help in trade talks, according to the February 2013 document. It reports that the N.S.A.’s Australian counterpart, the Australian Signals Directorate, notified the agency that it was conducting surveillance of the talks, including communications between Indonesian officials and the American law firm, and offered to share the information.

The Australians told officials at an N.S.A. liaison office in Canberra, Australia, that “information covered by attorney-client privilege may be included” in the intelligence gathering, according to the document, a monthly bulletin from the Canberra office. The law firm was not identified, but Mayer Brown, a Chicago-based firm with a global practice, was then advising the Indonesian government on trade issues.

On behalf of the Australians, the liaison officials asked the N.S.A. general counsel’s office for guidance about the spying. The bulletin notes only that the counsel’s office “provided clear guidance” and that the Australian agency “has been able to continue to cover the talks, providing highly useful intelligence for interested US customers.”

The foreign government represented by the American firm was Indonesia, according to the NYT’s transcript of the top-secret communication. The State Department describes Indonesia in fairly glowing terms as an American ally:

Indonesia’s democratization and reform process since 1998 has increased its stability and security, and resulted in strengthened U.S.-Indonesia relations. In 2010, Presidents Obama and Yudhoyono inaugurated the U.S.-Indonesia Comprehensive Partnership, which has fostered consistent high-level engagement on issues related to democracy and civil society, education, security, climate and environment, energy, and trade issues, among others.

The document does not provide any clue as to whether the NSA took up the offer from the ASD. If it did, though, it would have violated FISA laws as well as the legal privilege accorded attorney-client communications in the US — in principle, anyway. That won’t make American law firms very happy with the Obama administration, as it may tend to make things a little difficult with client recruitment, or at least in hardening communications. As Risen and Poitras note, though, that protection is actually quite limited when it comes to intelligence operations.

It’s not the first suggestion that NSA used its partnerships to conduct end runs around FISA. Last June, the revelation of the involvement of the UK’s GCHQ opened up that possibility. As I noted at the time, the sharing of the surveillance capabilities made a “criss-cross” arrangement possible, akin to the plot of Alfred Hitchcock’s Strangers on a Train. What makes this even more curious is that it doesn’t appear to have had any national-security import, but instead offered merely diplomatic and trade advantages to the US — if we took up the offer at all.

This isn’t part of the massive data trawling operation that made headlines. It looks more like standard spycraft from Australia, not data-trawling from the NSA, and a partnership-building offer that may or may not have been accepted. That doesn’t make it any better, but it’s not exactly news — except for the possible intrusion on attorney-client privilege, which as I wrote above wouldn’t make trial lawyers too happy with the White House if it took place. And to the extent that this implicates NSA in economic espionage, it’s going to further erode our standing with allies who find themselves targeted by those efforts … even if those allies conduct exactly the same kind of industrial espionage themselves.

The Lawfare blog calls this mostly overblown, though, and look to the story below the jump:

For starters, it is important to emphasize that the Times story does not involve NSA spying. It doesn’t involve any remotely-plausible suggestion of illegality. It doesn’t involve any targeting of Americans. And it doesn’t involve any targeting of lawyers either.

The facts the story reports are these:

  • The surveillance in question was conducted by the Australian Signals Directorate (ASD), not NSA.
  • The surveillance targeted Indonesian government officials engaged in trade talks with the United States.
  • The surveillance apparently took place overseas. (There is no suggestion in the story that the surveillance took place inside the United States.)

In other words, a foreign intelligence service was conducting surveillance against another foreign government, which was in communication with a U.S. law firm.

Deep in the story, write Benjamin Wittes and Jane Chong, one sees rather clearly that the NSA applied the practice of minimization when this arose:

Piece all this together, and it sounds like NSA probably asked the Australians to observe practices similar to what would have been the rules had the surveillance been conducted by NSA itself, at least with respect to those materials the ASD meant to share with NSA. Judging from the fact that the Australians managed to share information in a “highly useful” fashion, it appears they complied with this request—which was presumably the reason they sought the guidance in the first place.

So what would those rules have been? The key is minimization. When the U.S. conducts this sort of surveillance under FISA Section 702 (the minimization rules under Executive Order 12333 probably differ somewhat), NSA cannot target anyone for Section 702 collection—not even foreign persons overseas—without a valid foreign intelligence purpose.

There’s less here than meets the eye, conclude Wittes and Chong. It’s less Strangers on a Train, and more like playing footsie.


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How would we know, in general, when all the proceedings and courts are secret? There’s a reason courts are supposed to be public, and it has to do with human nature.

Fenris on February 16, 2014 at 11:11 AM

Did the NSA violate attorney-client privilege in domestic surveillance?

…SURE!…now…prove it!

KOOLAID2 on February 16, 2014 at 11:18 AM

Ada udang di balik batu!

TexasDan on February 16, 2014 at 11:20 AM

It appears that the Democrats are just fine with this, as they are with the IRS targeting. Apparently it’s because it’s their guy making the decisions and not that nasty George Bush. What is becoming apparent is this is all being handled a lot different than it would be if a Republican were in office. I’m beginning to believe the new campaign slogan for Republicans should be “Make the press responsible again, elect Republicans to office,”

bflat879 on February 16, 2014 at 11:22 AM

I usually post the first thing that pops into my head. But this time there wasn’t a pop.

SparkPlug on February 16, 2014 at 11:26 AM

Did the NSA violate attorney-client privilege in domestic surveillance?

They’ve been damn good at keeping what they have on John Roberts under wraps

Franklin100 on February 16, 2014 at 11:30 AM

You know it takes a lot of brain power to be able to write an article like this. Ed does a great job and digs deep for details. Then he puts it all together to make it easy for us pikers to digest.

H/t Ed

SparkPlug on February 16, 2014 at 11:31 AM

What makes this even more curious is that it doesn’t appear to have had any national-security import, but instead offered merely diplomatic and trade advantages to the US — if we took up the offer at all.

Ed, do you really think that gaining diplomatic and trade advantages does not directly relate to promoting national security?

Aplombed on February 16, 2014 at 11:34 AM

As I noted at the time, the sharing of the surveillance capabilities made a “criss-cross” arrangement possible, akin to the plot of Alfred Hitchcock’s Strangers on a Train. What makes this even more curious is that it doesn’t appear to have had any national-security import, but instead offered merely diplomatic and trade advantages to the US — if we took up the offer at all. (From Ed’s article)

You got a point, Ed. Sorry to later read at the summary, you don’t think this isn’t a major privacy breach.
The Five Eyes is all about plausible deniability- If New Zealand does our spying, we can say with a straight face ‘we’ didn’t do the unlawful surveillance on our own folks. They did it! Look squirrel!
We need to cut back on what the NSA deems necessary. There is no reason for storing metadata on every American man, woman and child for five years (probably forever). This is what the Gestapo and the Stasi valued the most- dossiers. To be used or misused to fit the crime needed. You know- absolute power.

Air Force Intelligence
Army Intelligence
Central Intelligence Agency
Coast Guard Intelligence
Defense Intelligence Agency
Department of Energy
Department of Homeland Security
Department of State
Department of the Treasury
Drug Enforcement Administration
Federal Bureau of Investigation
Marine Corps Intelligence
National Geospatial-Intelligence Agency
National Reconnaissance Office
National Security Agency
Navy Intelligence

Really? How about fifty of these. Heck, why not ten thousand!

“I had been looking for leaders, but I realized that leadership is about being the first to act.”– Edward Snowden

Sometimes. Research just how insidious meta data collection is. It’s the Matrix on steroids. Or Minority Report.

Nape-wa-ste on February 16, 2014 at 11:35 AM

We can’t trust any government.

rbj on February 16, 2014 at 11:40 AM

Did the NSA violate attorney-client privilege in domestic surveillance?
They’ve been damn good at keeping what they have on John Roberts under wraps

Franklin100 on February 16, 2014 at 11:30 AM

I’m glad some noticed that abrupt change in ideology. J.Edgar still lives.

Nape-wa-ste on February 16, 2014 at 11:48 AM

Did the NSA violate attorney-client privilege in domestic surveillance?
They’ve been damn good at keeping what they have on John Roberts under wraps

Franklin100 on February 16, 2014 at 11:30 AM

I’m glad some noticed that abrupt change in ideology. J.Edgar still lives.

Nape-wa-ste on February 16, 2014 at 11:48 AM

…yes!…good one!

KOOLAID2 on February 16, 2014 at 11:56 AM

Ada udang di balik batu!

TexasDan on February 16, 2014 at 11:20 AM

If you do, you’ll clean it up, by gawd.

Nape-wa-ste on February 16, 2014 at 12:00 PM

Question for anyone. Have you had any recent problem losing a comment due to the Hot Air page auto-refreshing?

hawkdriver on February 16, 2014 at 12:07 PM

No, Hawkdriver but I hate that auto refreshing, unless it puts you exactly where you were at beforehand. It doesn’t. :(

Nape-wa-ste on February 16, 2014 at 12:10 PM

Question for anyone. Have you had any recent problem losing a comment due to the Hot Air page auto-refreshing?

hawkdriver on February 16, 2014 at 12:07 PM

Yes. Ever since the most recent open reg I have had all kinds of problems…

OmahaConservative on February 16, 2014 at 12:14 PM

Ada udang di balik batu!

TexasDan on February 16, 2014 at 11:20 AM

Let me guess: “Yes we can!” in Indonesian?

ShainS on February 16, 2014 at 12:18 PM

Did the NSA violate attorney-client privilege in domestic surveillance?

Magic Eight Ball says, “All signs point to yes” in my view. Of course, they can just rewrite/reinterpret/ignore the law at will, so there’s that to consider!

Yes. Ever since the most recent open reg I have had all kinds of problems…

OmahaConservative on February 16, 2014 at 12:14 PM

Me too! I can actually post now. Not good for time management. Not good.

xNavigator on February 16, 2014 at 12:26 PM

Me too! I can actually post now. Not good for time management. Not good.

xNavigator on February 16, 2014 at 12:26 PM

Heh.

If you’re actually reading the posts and the stories to which they link — before commenting — you’re doing it wrong … ;-)

ShainS on February 16, 2014 at 12:30 PM

I guess if you’re typing a long comment. Do it outside and candp it to the comment box.

Thanks everyone who answered.

hawkdriver on February 16, 2014 at 12:35 PM

I guess if you’re typing a long comment. Do it outside and candp it to the comment box.

Thanks everyone who answered.

hawkdriver on February 16, 2014 at 12:35 PM

No problems here, but I am on a laptop using Firefox and the NoScript and AdBlockPlus addons. So the auto refresh never gets pushed on me. Ditto for autoplay ads, never see ‘em.

Difficultas_Est_Imperium on February 16, 2014 at 12:55 PM

does a foreign government/entity even get the client confidentiality that citizens get?

dmacleo on February 16, 2014 at 1:03 PM

I guess if you’re typing a long comment. Do it outside and candp it to the comment box.

Thanks everyone who answered.

hawkdriver on February 16, 2014 at 12:35 PM

Just me, but I type my response out on a word processor so I can edit and read before c&p into comment box. I’ve had refreshes that erase a lot of well thought out sentiments. I hate it when that happens!

Nape-wa-ste on February 16, 2014 at 1:20 PM

Difficultas_Est_Imperium on February 16, 2014 at 12:55 PM

You need to reverse the way you use the ‘quote’ command. The quote is ‘in the box’, not your response.
Just sayin’. :)

Nape-wa-ste on February 16, 2014 at 1:23 PM

does a foreign government/entity even get the client confidentiality that citizens get?

dmacleo on February 16, 2014 at 1:03 PM

That doesn’t make a damn bit of difference. If you are a political opponent of Dog Eater, foreign or domestic, all levers of government will be put to use in destroying you. The US government and its agencies have been weaponized to obliterate all opponents.

This government is now the ultimate power in the universe

Franklin100 on February 16, 2014 at 1:27 PM

[hawkdriver on February 16, 2014 at 12:35 PM]

I don’t know what browser you have. I have Firefox (15.01) and I can refresh the page myself and not lose a comment in progress. Also I didn’t know that HA refreshes as so many others do, because the only website where my browser allows refreshing is Drudge. I don’t know why that is. …

Oh wait, I checked my extensions and I have Greasemonkey, which is a script manager. I must have done something in there to stop auto-refresh and Drudge has something a bit different so his gets through.

Dusty on February 16, 2014 at 1:36 PM

GOP campaign theme?

Only Republicans are held accountable for their sins by a Liberal media, Therefore, if you want honest government…

Is there a good Lakoffian (metaphorical) way to phrase that message?

ShadrachSmith on February 16, 2014 at 1:36 PM

The US government and its agencies have been weaponized to obliterate all opponents.

This government is now the ultimate power in the universe

Franklin100 on February 16, 2014 at 1:27 PM

I know. Rome v.2.0. Total control of the media (with drama a main feature) combined with big business colluding with out of control congressmen/women who spend like there’s no tomorrow. Grant the trans-nationalists immunity to hide vast overseas wealth in off shore bank accounts; allow huge war industries to pay NO taxes through subsidies and keep syphoning off industrial jobs because we can’t keep tariffs at a fair rate. Gee, that sounds like long term insanity, if you ask me.
And somehow I’m supposed to be grateful I can go and shop at Walmart- China’s B.F.F.™

Nape-wa-ste on February 16, 2014 at 1:45 PM

Difficultas_Est_Imperium on February 16, 2014 at 12:55 PM

I’m on an IMAC so I think I’m required by law to use Safari. :-)

hawkdriver on February 16, 2014 at 1:46 PM

Dusty on February 16, 2014 at 1:36 PM

I normally save a lot. Because. But I lost a gigantic comment this morning.

hawkdriver on February 16, 2014 at 1:47 PM

I normally save a lot. Because. But I lost a gigantic comment this morning.

hawkdriver on February 16, 2014 at 1:47 PM

Write it out on a word processor, then copy and paste. As a fellow Mac user*, I like Safari. (And I haven’t updated since Snow Leopard so I don’t have any ‘back doors’ if you know what I mean :)

2006 Mac Pro work station. 2 duo core Xenon processors, 2.25 Tb’s hard drives (3), 16 Gb’s Ram, two video cards. Gets the job done.

Nape-wa-ste on February 16, 2014 at 2:05 PM

Did Ed miss the point that the NSA is supposed to be the National Security Agency and that it has no legal authorization for spying to gain advantage in trade talks?

corona79 on February 16, 2014 at 2:05 PM

Of course they violated attorney-client privilege in this case. They do it in all cases. If all electronic communications are being swept, and there are no real prohibitions as far as the use of the data; there is no privilege as far as the government is concerned unless you are high enough in the government to have those collecting tasked to protect you. And in the absence of the rule of law, I would not be too sure that they were protecting you.

The interesting thing will be the reaction of the ABA. Normally, I believe, that they consider themselves as being in the “protected” group because of their bedrock support for the power of the State. Some of them may suddenly realize that they are not.

Subotai Bahadur on February 16, 2014 at 2:10 PM

Did Ed miss the point that the NSA is supposed to be the National Security Agency and that it has no legal authorization for spying to gain advantage in trade talks?

corona79 on February 16, 2014 at 2:05 PM

Wrong. It is a well established fact that a major part of NSA’s mission is diplomatic spying. Trade talks are part of diplomacy.

Aplombed on February 16, 2014 at 2:32 PM

rlwo2008 on February 16, 2014 at 2:44 PM

People should read Andy McCarthy’s article in the National Journal, and hundreds of well-balanced articles about the NSA instead of the nonsense the narcissistic traitor leaks that manage to always find their way to this forum..

rlwo2008 on February 16, 2014 at 2:46 PM

And somehow I’m supposed to be grateful I can go and shop at Walmart- China’s B.F.F.™

Nape-wa-ste on February 16, 2014 at 1:45 PM

I’d like to cut Walmart some slack. People demand cheap products and they have to get it from China. If they bought from Omaha Nebraska they would have to charge an arm and a leg and people would have coniption fits about that.

crankyoldlady on February 16, 2014 at 4:12 PM

I don’t know what browser you have. I have Firefox (15.01) and I can refresh the page myself and not lose a comment in progress. Also I didn’t know that HA refreshes as so many others do, because the only website where my browser allows refreshing is Drudge. I don’t know why that is. …

Oh wait, I checked my extensions and I have Greasemonkey, which is a script manager. I must have done something in there to stop auto-refresh and Drudge has something a bit different so his gets through.

Dusty on February 16, 2014 at 1:36 PM

Firefox Options or Preferences -> Advanced -> General -> Accessibility -> ‘Warn Me When Sites Try To Redirect Or Reload The Page’

Check that box.

The ‘warning’ ends up being a block because you never click the ‘allow’ button.

slickwillie2001 on February 16, 2014 at 5:23 PM

It is a well established fact that

Translation - I got nuthin’, so might as well make up some crap.

corona79 on February 16, 2014 at 10:21 PM

The Intelligence Community is not concerned with laws; it is concerned with accomplishing its task…safety from those who would harm us. In this case, we would agree that those who would harm us are terrorists.

But to accomplish this task they need a lot of data, most of which will not ever be pertinent…but having it provides a certain sense of security to them by its presence…sort of like having an open-book test. It can be argued that this security is overstated or even false, but there you have it.

The problem is that the definitions require a certain “we” vs. “they” viewpoint. Why a problem? Because politicians in general, despite their claims and protestations to the contrary, have more and more seen voters as “they”, as dangerous to their own continence in office and threatening their life of power and privilege.

So, if you are waiting for the Politicians, either in Congress or in the White House, to protect you from the all-seeing and all-hearing of the intelligence services, you are doomed to disappointment.

The Intelligence agencies do it because they “believe” and the Politicians allow it because of “fear.” “We” are now the enemy, to be as carefully surveilled as any terrorist. Get used to it!

TKPedersen42 on February 17, 2014 at 10:56 AM

The problem is that the definitions require a certain “we” vs. “they” viewpoint. Why a problem? Because politicians in general, despite their claims and protestations to the contrary, have more and more seen voters as “they”, as dangerous to their own continence in office and threatening their life of power and privilege.
TKPedersen42 on February 17, 2014 at 10:56 AM

Never a truer statement has ever been said.

Nape-wa-ste on February 17, 2014 at 10:04 PM