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2nd Circuit Hears Arguments on Wiretap Program
New York Law Journal
October 13, 2009
A federal appeals panel on Friday heard arguments from lawyers who want the government to tell them whether they have been subject to warrantless wiretapping launched in the wake of the Sept. 11 attacks. The 23 lawyers who represent detainees at Guantanamo Bay maintain their electronic communications may have been intercepted under the Terrorist Surveillance Program. "The looming possibility of surveillance chills the Guantanamo lawyers' communications and hobbles their representations of clients," the Center for Constitutional Rights argued on behalf of the plaintiffs.
In June 2008, Southern District of New York Judge Denise Cote granted the government's summary judgment motion dismissing a Freedom of Information request brought in 2007 by the center to determine whether the lawyers' records had been intercepted. On Friday, the center urged a panel to reverse Cote's decision in Wilner v. National Security Agency, 08-4726-cv.
Asked by a three-judge panel, which included Judges Jose A. Cabranes, Debra Ann Livingston and Edward Korman sitting by designation from the Eastern District of New York, if the lawyers wanted the 2nd Circuit to declare the program illegal, Kathryn Sabbeth of the University of North Carolina at Chapel Hill School of Law, who argued for the center, replied, "Absolutely not."
However, she insisted Cote had misapplied the "Glomar" doctrine, a judicial exception to FOIA allowing agencies to refuse to confirm or deny the existence of records.
Lawyers for the government countered that disclosing whether or not a person "may or may not have been" subject to the surveillance program was a "closely guarded" state secret.
