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Wilner v. National Security Agency (NSA)

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Synopsis

Wilner v. NSA is a Freedom of Information Act (FOIA) lawsuit seeking records of any NSA surveillance gathered on 23 attorneys who represent detainees at Guantánamo.

Status

The Center for Constitutional Rights (CCR) filed the lawsuit in the U.S District Court for the Southern District of New York on May 17, 2007. On June 25, 2008 the district court granted summary judgment to the government on its Glomar claims, accepting that it could refuse to either confirm or deny the existence of records “relating to ongoing or completed electronic surveillance or physical searches” relating to any of the individual plaintiffs. The Court of Appeals for the Second Circuit affirmed the district court’s opinion in all respects on December 30, 2009. The Supreme Court denied the plaintiffs' petition for certiorari regarding the government's Glomar claims on October 4, 2010. 

Description

Wilner v. NSA is a FOIA lawsuit filed by the Center for Constitutional Rights (CCR) against the NSA and Department of Justice (DOJ), demanding that the government comply with requests to turn over all records of NSA's warrantless wiretapping of 23 attorneys who currently represent or have represented detainees at Guantanamo.

Because they have represented clients at Guantánamo, the plaintiffs – who include CCR staff attorneys Gitanjali Gutierrez and Wells Dixon as well as law professors and partners at prominent international law firms – may have been the subjects of the NSA's warrantless wiretapping program that began shortly after September 11, 2001. The lawyers have sound reasons to be worried: They fit the officially acknowledged profile of those subject to surveillance under the former administration’s program; the Bush Administration told Congress that attorneys were not categorically excluded from surveillance under the NSA Program; and the New York Times reported in 2008 that "[t]he Justice Department does not deny that the government has monitored phone calls and email exchanges between lawyers and their clients as part of terrorism investigations in the United States and overseas," and that "[t]wo senior Justice Department officials" admitted that "they knew ... of a handful of terrorism cases ... in which the government might have monitored lawyer-client conversations."

Soon after the NSA's warrantless spying program became public in December 2005, CCR submitted FOIA requests to the NSA and DOJ for records related to the policies, procedures, and guidelines of the NSA program and for records of records of any surveillance of the Guantanamo lawyers' communications.

That last request is the subject of the part of this lawsuit that plaintiffs asked the Supreme Court to review. The DOJ and the NSA refused to even acknowledge the existence of documents related to whether the individual lawyers were being subjected to warrantless surveillance. In response, CCR filed suit. In defending the suit, the government refused to either confirm or deny whether such records existed, and the lower courts refused to order the government to confirm whether it had eavesdropped on attorney-client communications. The question before the Supreme Court was whether the government can refuse to confirm or deny whether records of such surveillance exist, even though any such surveillance would necessarily be unconstitutional and illegal.

The cert petition filed with the Supreme Court included declarations from the Guantánamo attorney plaintiffs detailing how the threat of illegal surveillance by the NSA has made it harder for them to gather evidence in their cases from witnesses overseas, including family members of detainees, who are often unwilling to speak freely on the phone given the threat that the government may be listening in. Nonetheless, the Supreme Court denied the plaintiffs' petition for certiorari on October 4, 2010.

With this ruling, all but one of the legal challenges to the original NSA Program will have been dismissed without the Obama administration ever having taken a position on whether or not the original NSA Program was legal.

Timeline

 

On May 17, 2007, CCR filed Wilner v. NSA in the U.S District Court for the Southern District of New York.

On May 28, 2007, CCR amended their Complaint Wilner v. NSA in the U.S. District Court for the Southern District of New York.

On August 2, 2007, the Defense filed an Answer to the Amended Complaint.

On November 2, 2007, CCR filed a Revised Amended Complaint.

On November 19, 2007, the Defense filed their answer to the second Amended Complaint.

On March 18, 2008, the Defense filed a Partial Motion for Summary Judgment Regarding the Glomar Response, refusing to confirm of deny the existence of records responsive to plaintiffs’ request concerning whether they were subject to warrantless surveillance.  Joseph Brand, David M. Hardy, and J. Michael McConnell, the Director of National Intelligence, wrote declarations in support of the Motion.

On May 5, 2008, the Defense filed a Motion for Summary Judgment (non-Glomar response related).

On May 6, 2008, CCR filed a Memorandum in Opposition to the Government’s Partial Motion for Summary Judgment Regarding the Glomar response, arguing that the Glomar functions to protect legitimate Government interests, not to conceal unconstitutional activity.  The Government’s refusal to disavow interfering with attorneys’ communications violates the First and Fifth Amendment.  Declarations in support of the memorandum were provided by plaintiffs Scott Barker, Charles H. Carpenter, John A Chandler, Joshua Colangelo-Bryan, J. Wells Dixon, Tina Monshipour Foster, H. Candace Gorman, Richard A. Grigg, Gitanjali S. Gutierrez, Jonathan Hafetz, Joseph Margulies, George Brent Mickum IV, Brian J. Neff, Clive A. Stafford Smith, Michael J. Sternhell, Stephen M. Truitt, and Thomas B. Wilner, and by ethics expert David Luban.

On June 3, 2008, the Defense filed their Reply in Further Support of Defendants' Partial Motion for Summary Judgment regarding the Glomar response. 

On June 25, 2008, Judge Denise Cote issued and opinion and order granting the Defendants' March 18, 2008 Partial Motion for Summary Judgment regarding the Glomar response, accepting that the government could refuse to either confirm or deny the existence of records "relating to ongoing or completed electronic surveillance or physical searches" relating  to any of the individual plaintiffs.

On September 24, 2008, Wilner plaintiffs filed a notice of appeal regarding Judge Cote's order granting the defendants' motion for partial summary judgment.

On December 12, 2008, Wilner plaintiffs filed their appellate brief in the Second Circuit. 

On January 30, 2009, the government filed their brief for appellees.

On December 30, 2009, the Court of Appeals for the Second Circuit affirmed the district court's opinion granting partial summary judgment to the government on its Glomar claims.

On March 30, 2010, plaintiffs filed a petition for certiorari in the Supreme Court on the Glomar claims.

On October 4, 2010, the Supreme Court denied the plaintiffs' petition for certiorari regarding the government's Glomar claims. 

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