NSA Responds to ABA President’s Letter: “Committed to the Rule of Law”

– By Sharon Nelson and John Simek

Nelson and Simek have been frequent presenters at ABA TECHSHOW. Nelson served as Chair of the 2006 TECHSHOW Planning Board. Together, they are the principals of Sensei Enterprises.

At TECHSHOW 2014, Simek will be co-presenting “N.S.AY What? Firm and Client Data Security & Encryption in the Age of Monitoring,” with Chris Reis, on Friday, March 28, 2014, at 2:30 PM.

On March 10th, NSA Director General Keith Alexander replied to ABA President James Silkenat’s February 20th letter requesting information about recent stories indicating that attorney-client communications were shared with the NSA by its Australian counterpart. The ABA Journal story contains a link to the actual letter.

To no one’s surprise, the NSA says it is “firmly committed to the rule of law and the bedrock legal principle of attorney-client privilege.” It went on to say that the “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.”

So . . . who determines (a word which appears a lot in the letter) what is appropriate? For the most part, the NSA and a secret court does.

It may be mincing words, but when the NSA says it does not “ask” foreign partners to conduct activity prohibited under U.S. law, the cynic in me says it doesn’t have to ask. The voluntary sharing of information between “The Five Eyes” alliance has already been well established. One of several stories involves our good buddies in Britain tapping cables and cheerfully turning over vast amounts of personal information to the NSA.

John and I both thought the letter was written to pacify and was carefully worded to avoid an outright lie – but any intended reassurance felt as solid as Jell-O to us.

Want to learn more? Attend John’s NSA session at ABA TECHSHOW 2014!