Lawyers fear feds eavesdrop on talks with terror suspects

PORTLAND — Thomas Nelson, an Oregon lawyer, has lived in a state of perpetual jet lag for two years. Every few weeks, he flies from Portland to the Middle East to meet with a high-profile Saudi client who cannot enter the United States because he faces charges here of financing terrorism.

Nelson says he does not dare to phone this client or e-mail him because of what many prominent criminal-defense lawyers say is a well-founded fear that all of their contacts are being monitored by the U.S. government.

Because he is constantly shifting time zones to see his client face to face, "I just don't sleep normally anymore," Nelson said. "But I don't have a choice. It's very clear to me that anything I say to my client or to other lawyers in this case is being recorded."

Across the country, and especially in Oregon, it seems, lawyers who represent suspects in terrorism-related investigations complain that their ability to do their jobs is being hindered by the suspicion that the government is listening in, using the eavesdropping authority it obtained — or granted itself — after the Sept. 11 terrorist attacks.

Steven Wax, a Portland lawyer involved in several terrorism cases, said he has told clients to assume everything they say to him is being secretly monitored. Wax said he "self-censors" his e-mails, even to other lawyers and friends. The situation, he said, has elements of "Kafka and 'Alice in Wonderland.' "

The Justice Department does not deny the government has monitored phone calls and e-mails between lawyers and their clients as part of its terrorism investigations.

But in cautiously worded court statements, the department says if there has been surveillance of lawyers involved in terrorism cases, it has been handled in strict accordance with federal law and with the Constitution's promise of a criminal defendant's right to counsel.

Skeptical reaction

"We do conduct ourselves ethically and adhere to our responsibilities under the rules of ethics," a Justice Department lawyer, Anthony Coppolino, told a federal judge in a Portland court hearing this month.

The department's promises of ethical conduct have met with special skepticism in Oregon, where lawyers believe they have seen proof of secret government monitoring.

In a terrorism-financing investigation centered on the offices of an Islamic charity in Portland, the government mistakenly provided defense lawyers in August 2004 with what the lawyers say was a logbook of intercepted phone calls between the charity's lawyers in Washington, D.C., and clients in Saudi Arabia.

The charity's lawyers say the logbook, which was stamped "top secret," appeared to reflect eavesdropping under the National Security Agency's (NSA) warrantless-wiretapping program.

After the government realized its mistake, defense lawyers were ordered to return all copies of the logbook to the FBI and were warned they could face prosecution if they disclosed its contents.

It is believed to be the only case in which nongovernment lawyers may have seen physical evidence of the security agency's so-called terrorist-surveillance program, which has been called unconstitutional by many legal scholars, lawmakers and civil-liberties groups because it allowed the monitoring of the phone calls of Americans without a court's permission.

Sean Maher, a New York lawyer who is a co-chairman of the national-security committee of the National Association of Criminal Defense Lawyers, said he knew talented private lawyers who were refusing to take on terrorism cases because of potential violations of their privacy, including monitoring of their communications. That fear has grown as a result of the disclosures in Oregon, Maher said.

Background checks

Lawyers who agree to defend terrorism suspects in cases involving classified information are required to undergo background checks that can include an FBI review of their financial and medical records, including records of psychiatric care.

"People just aren't going to get involved in this process," Maher said.

The anxiety among defense lawyers — paranoia is a word often used — has grown as the Bush administration has pressed Congress to pass a bill to permanently ease restrictions on domestic wiretapping in investigations involving national security. Democratic congressional leaders and the White House are at a stalemate.

Although the administration says it has shut down the wiretapping program, lawyers involved in the Oregon case say they believe communication with their clients — and among themselves — is still being monitored.