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Citing a “cardinal rule” of litigation, a federal judge in Brooklyn yesterday ordered government attorneys to tell him how much they know about the possible monitoring of conversations between eight former terrorism suspects and their lawyers. The eight men, all illegal aliens, were men arrested after the Sept. 11, 2001, terrorist attacks and later deported. They are suing the government for abuses while they were detained at the Metropolitan Detention Center in Brooklyn. Now that they are no longer in the United States, the men suspect that their conversations with their attorneys have been monitored under a National Security Agency program authorized by President George W. Bush after 9/11. In May, a federal magistrate judge, Steven Gold, ordered the Justice Department attorneys defending the abuse claims to state whether they, potential witnesses or the defendants, who include former Attorney General John Ashcroft and FBI Director Robert Muller, were privy to any such monitoring. The magistrate judge also wanted to know whether any information obtained from monitoring would be used to defend the case. Judge Gleeson affirmed that ruling yesterday in Turkmen v. Ashcroft, 02-CV-2307, with one modification: The government attorneys will now submit the information to Judge Gleeson, ex parte, and he will examine it and report back to the plaintiffs’ attorneys. The decision will be published Tuesday. “As Judge Gold recognized, it is a cardinal rule of litigation that one side may not eavesdrop on the other’s privileged attorney-client communications,” Judge Gleeson wrote. “Litigation involving officials of the executive branch of government is no exception.” Judge Gleeson rejected arguments that to confirm or deny whether the plaintiffs’ communications were monitored would shed light on the capabilities of the NSA program and disclose valuable intelligence. “It would not reveal classified information to say that the Department of Justice has been scrupulous in walling off the government officials who are involved in this litigation from exposure to . . . surveillance or knowledge derived from such surveillance,” the judge said. “The Department has rightfully espoused that procedure as its policy, and the plaintiffs are entitled to the government’s representation that it has made good on it.” One of the government’s attorneys, Stephen E. Handler of the Justice Department, previously told Magistrate Judge Gold that he had not been informed that any member of his trial team was aware of intercepted communications. He also agreed to prepare a written response at the behest of the magistrate judge. But in a subsequent letter to the magistrate judge, Mr. Handler said that the Justice Department, after further examining the issue, could not “confirm or deny whether any communications were intercepted by classified means.” He asked Magistrate Judge Gold to reconsider his decision to ask the government to reveal the information. Magistrate Judge Gold then issued his May ruling. Rachel A. Meeropol of the Center for Constitutional Rights, which represents the plaintiffs, said the ruling “recognizes the importance of judicial scrutiny.” The Department of Justice did not respond to a request for comment. In a previous ruling in the Turkmen case, Judge Gleeson held that the government did not violate the law when, in response to 9/11 attacks, it arrested aliens of Middle Eastern descent and held them for long periods to investigate possible ties to terrorism (NYLJ June 15, 2006). Tom Perrotta can be reached at [email protected]

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