Evidence

NSA tells ABA it is 'firmly committed' to rule of law and 'bedrock' attorney-client privilege


In a response Monday by the National Security Agency to a request by the American Bar Association for information on NSA policies concerning material to which the attorney-client privilege applies, the NSA says it is “firmly committed to the rule of law and the bedrock legal principle of attorney-client privilege.”

While the NSA said in a Monday letter (PDF) to ABA President James R. Silkenat that it can’t comment on media reports that an Australian ally monitored communications between law firm Mayer Brown and its client, the government of Indonesia, NSA director Gen. Keith B. Alexander, says his agency “absolutely” agrees that the attorney-client privilege “deserves the strong protections afforded by our legal system” and says it is “vital” to have in place policies and practices to prevent the erosion of the privilege.

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File photo of James Silkenat by Marc Hauser.

“Let me be absolutely clear,” Alexander continued. “NSA has afforded, and will continue to afford, appropriate protection to privileged attorney-client communications acquired during its lawful foreign intelligence mission in accordance with privacy procedures required by Congress, approved by the Attorney General, and, as appropriate, reviewed by the Foreign Intelligence Surveillance Court. Moreover, NSA cannot and does not ask its foreign partners to conduct any intelligence activity that it would be prohibited from conducting itself in accordance with U.S. law. This broad principle applies to all of our signals intelligence activities, including any activities that could implicate potentially privileged communications.”

In a Tuesday written statement, Silkenat said the ABA “appreciates the NSA’s expression of respect for the attorney-client privilege and looks forward to continuing a constructive dialogue with the NSA to ensure that American lawyers and their clients have confidence that their privileged communications are appropriately protected.” He called the attorney-client privilege “fundamental to our system of justice and critical to the work of lawyers, who rely on the candor of their clients.”

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