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Leaked Snowden document suggests answer to gun blog question

Document leaked by Edward Snowden indicates attorney-client privilege is viewed by the government as just that -- a privilege, and one they can decide not to grant.
Document leaked by Edward Snowden indicates attorney-client privilege is viewed by the government as just that -- a privilege, and one they can decide not to grant.
The Guardian via Getty Images

Some calls assumed protected by attorney-client privilege may not result in National Security Agency wiretaps being turned off, a Tuesday story by The Nation reported. That revelation goes to the heart of a question raised last month on Gun Rights Examiner’s companion blog.

“Has the NSA Wiretapping Violated Attorney-Client Privilege?,” the headline for Nicholas Niarcos’ investigative report asks. “A document leaked by Edward Snowden, along with interviews with lawyers representing terrorism suspects, reveal a disturbing loophole in this once-sacred legal principle.”

Referencing section 4 of NSA’s “minimization procedures,” it appears “at first glance” that taps must be turned off, the report notes.

“But given a second reading, section four doesn’t apply to all attorney-client calls. It provides only for the minimization (and protection) of the calls of ‘a person who is known to be under criminal indictment in the United States’-- someone who has already been charged under US law,” Niarcos reported. “This is because indicted persons have a Sixth Amendment right to counsel. People who aren’t indicted don’t have this right, and so their calls are not minimized.”

Of particular emphasis in the article: Department of Justice guidelines, spoken of in not safe for work terms.

These revelations tie in with a question asked in January on The War on Guns blog.

“You know it just struck me that given the domestic spying issues of late, has anyone considered that DOJ may be actively getting attorney client and defense strategy from these spying programs?” a frequent source and colleague asked. “Has anyone in Congress asked DOJ? NSA? Is this not a worthy question?”

Having read that Edward Snowden would be joining the non-profit Freedom of the Press Foundation, this correspondent asked the group “Are there any indications that DOJ may be actively getting attorney client and defense strategy from spying programs?”

No response has been received to date, but the report in The Nation appears to tangentially answer the question. While it tells us "[t]here are rules for which kinds of communications can be monitored -- for example, domestic communications are off limits, although communications from agents of foreign powers and suspected terrorists don’t count as domestic," that last bit opens all kinds of doors, and the admission that "[t]he invocation of National Security trumps other rules" opens all kinds of concerns.

Among those, especially for activists involved in issues associated with the gun issue, or other conservative issues affiliated with what has been loosely called the “Patriot Movement,” is whether such scrutiny has been extended to them. This is of particular concern since FBI, Department of Homeland Security and ”fusion center” efforts have relied on characterizations of “extremism” from “progressive” influence peddlers like the Southern Poverty Law Center to cast an eye on everyone from Constitutionalists, to citizen journalists, to military and police personnel who place their oath to the Constitution above orders they deem illegal, to “preppers,” and to people who shave their beards or pay for things in cash, display conservative bumper stickers, frequent gun shops and ranges, and own giant inflatable pink pigs, and no, that last is not a joke, or at least an intentional one.

A follow-up question to the one posed by my colleague wondered if such monitoring was being conducted on non-terrorism-related domestic cases. What’s clear, as far as the surveillance state is concerned, is we are all terrorists now -- or at least considered good candidates. That would seem to make everyone and everything “fair game,” bringing to mind nothing so much as the words of Inspector Clouseau:

I suspect everyone and I suspect no one.

Except this is no laughing matter.

With the blanket excuse of “national security,” is anything off limits to such scrutiny?

Perhaps a better question might be, why should anyone believe the taps are turned off when the guidelines say they must be? And why should we believe that intelligence-gathering is not happening including to gain political leverage? Lest anyone pronounce that paranoid, perhaps they could explain what gives them the confidence not to be in the Orwellian environment that has become the accepted norm here in the land of the free and the home of the brave.

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When your turn to be tested comes, how will you fare? Wouldn’t it be better to stop the antis before they get that far? How can we, if most gun owners let a relative handful of activists do all the work? The latest GUNS Magazine "Rights Watch" column is online, and you can read it before the issue hits the stands. Click here to read "The Unconstitutional State.”