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Is Vermont lawyer being wiretapped?

  Political and Legal  -   POSTED: 2007/09/23 16:40

A Vermont lawyer representing a client being held at Guantanamo, Cuba, is worried that his phone is being tapped by the federal government.

He ought to be. The federal government may have interpreted the revised federal surveillance law to allow it to wiretap the lawyers of Guantanamo prisoners.

The Vermont Public Service Board heard testimony last week about the suspicions of lawyer Bob Gensburg of St. Johnsbury, who says his phone line has inexplicably gone dead and has been subject to strange buzzing noises. Gensburg is one of Vermont's most respected lawyers, and he is not likely to be imagining these occurrences or to be making them up.

The PSB has already involved itself in the issue of unwarranted spying by the government, mounting an investigation into whether Verizon and AT&T had turned over phone calling records to the National Security Agency without warrants. The federal government has sued to block the PSB's investigation, and those in other states, on the grounds that it would jeopardize national security to talk about the activities of the telephone companies.

Mike McConnell, the director of national intelligence, may have undermined the government's case last month when he acknowledged in an interview that the telecommunications companies had helped the government carry out its program of warrantless electronic spying. It will be harder for the government to argue in court that it cannot talk about the phone companies' role now that the nation's spy chief has talked about it. The Public Service Board is now receiving briefs from the parties in the case in response to McConnell's admission.

Meanwhile, Gensburg wonders if his calls to Afghanistan on behalf of his client are being monitored by the government. If so, it would be an unconscionable breach of the lawyer-client privilege.

Gensburg is not the only Vermonter with connections to Afghanistan. Others have relatives working there or friends living there. One editor of our acquaintance telephoned a friend in Kabul within the past two years. The question inevitably arises: Was the telephone contact monitored or subject to the government's efforts at data mining?

Data mining and warrantless spying on international calls are being carried out in the name of the war on terrorism. So is the detention of Afghans and others at Guantanamo, without charges, with limited access to lawyers, and without recourse to the law. The possibility of unaccountable secret detention of American citizens still exists because of the erosion of the habeas corpus rights that are supposed to be part of our constitutional birthright. Last week the Senate failed to end a Republican filibuster of a bill authored by Sen. Patrick Leahy that would have restored our habeas corpus rights.

No one knows if Gensburg's phone has been tapped, but the Bush administration's disregard for constitutional protections creates an atmosphere of fear and suspicion that make the possibility seem real. One of the great advantages of a democracy is that we need not live in fear that the government will be rifling through our desk drawers or spying on private communications.

As for the telephone companies, it was their responsibility to know right from wrong and to stand up to the government when it sought their cooperation in illegal surveillance. The companies are seeking immunity in Congress for their actions. Instead, the investigations in Vermont and elsewhere need to move forward to hold those accountable, in government and the private sector, for actions that compromised our constitutional rights. No one in Vermont or anywhere else should have to fear that a phone call to Kabul is going to get them in trouble — unless the government has reasonable grounds to believe that a particular individual is actually involved in criminal activity.

For the government to monitor the phone calls of a lawyer or to cast out a vast electronic dragnet is for it to practice the methods of the Soviet Union or East Germany. The Vermont PSB now has an important role in checking the excesses of the government and private companies in spying on innocent Vermonters.


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