FISA amendments hamstring ICDAA's efforts to represent overseas clients

Daniel N. Arshack [Vice President, International Criminal Defense Attorney's Association]: "The FISA Amendments Act passed by the House (H.R. 6304) allows the mass acquisition of U.S. citizens' and residents' international communications. Although the Act prohibits the government from intentionally "targeting" people inside the U.S., it places virtually no restrictions on the government's targeting of people outside the U.S., even if those targets are communicating with U.S. citizens and residents. The law's effect - and indeed, the law's main purpose - is to give the government nearly unfettered access to Americans' international communications:

1. The law gives the government sweeping surveillance power without requiring it to identify the targets of its surveillance.

2. The law allows the government to intercept U.S. citizens' and residents' international telephone and email communications without having to identify the facilities, phone lines, email addresses, or locations to be monitored. The law allows the government to conduct intrusive surveillance without meaningful judicial oversight.

3. The law places no meaningful limits on the government's retention and dissemination of information relating to U.S. citizens and residents.

4. The law does not limit government surveillance to communications relating to terrorism.

5. The law gives the government access to some communications that are purely domestic. The law immunizes the telecoms that participated in the Bush administration's warrantless wiretapping program.

The law suit, in which the International Criminal Defense Attorney's Association is one of several plaintiffs, is a challenge to the constitutionality of the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801 et seq. ("FISA"), as amended by the FISA Amendments Act of 2008. As amended, FISA allows the executive branch sweeping and virtually unregulated authority to monitor the international communications - and in some cases the purely domestic communications - of law-abiding U.S. citizens and residents. The amended law (the "challenged law") eviscerates the "[c]lear legal standards and effective oversight and controls" that the Senate Church Committee concluded in 1978 were necessary to ensure that government surveillance did "not itself undermine the democratic system it [was] intended to protect."

The International Criminal Defence Attorneys Association ("ICDAA") is a non-profit organization incorporated in the United States and Canada that seeks to create the foundations for a full, fair, and well-organized defense in proceedings before international tribunals such as the International Criminal Tribunal for Rwanda based in Arusha, Tanzania, the International Criminal Tribunal for the former Yugoslavia and the recently established International Criminal Court (ICC), both based in The Hague, the Netherlands. The ICDAA works to organize a full, thorough and structured defense with the aim of bolstering the legitimacy of the judicial process established by the international community to prosecute war crimes and crimes against humanity; bring together in a professional association the defense attorneys who are responsible for preparing and pleading cases to be tried by various international tribunals; share with the international community experience and knowledge derived from the adversarial system of justice; encourage communication among lawyers specializing in criminal law from countries around the world; and assist in the development of international criminal law and in particular of international institutions such as the ICC. ICDAA membership is comprised of organizations and criminal defense lawyers from around the world, including from the United States.

ICDAA's members, including its members inside the United States, routinely engage in sensitive and privileged international communications relating to their representation of criminal defendants. For example, members of the ICDAA who represent individuals before the ICC communicate with clients and witnesses located in the Sudan and the Democratic Republic of Congo. ICDAA's members' communications with clients, clients' families, witnesses, journalists, human rights organizations, experts, investigators, and foreign government officials, are vital to their effective representation of their clients.

Because of the content of its members' communications, the identity of those with whom they communicate, and the geographic location of individuals with whom they communicate, ICDAA reasonably believes that its members' communications have been and will continue to be monitored under the challenged law.

ICDAA's members have an ethical obligation to protect the confidentiality of their clients' information, including information covered by the attorney-client privilege. However, the challenged law makes it nearly impossible to ensure that their international email and telephone communications are secure. The law requires the attorneys to take burdensome and costly steps to gather information necessary for the effective representation of their clients in a manner that ensures those communications remain confidential. In some cases, attorneys will have to gather information in person that they would otherwise have been able to gather by telephone or email. In email and telephone communications, attorneys will be forced to weigh the utility of asking for additional information against the risk that the communication will be acquired by the U.S. government."

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