British intelligence services have “routinely been intercepting legally privileged communications between lawyers and their clients in sensitive security cases,” reported Owen Bowcott in the Guardian. Internal documents from MI5 (the UK’s domestic counter-intelligence and security agency), MI6 (the British Secret Intelligence Service) and GCHQ (the Government Communications Headquarters) reviewed by the Investigatory Powers Tribunal document the agencies’ use of technology to intercept conversations between lawyers and their clients. Under British law, these conversations have “special protected status.” Instead, intelligence agencies are using these intercepted conversations to gather information on cases and to sway court decisions in cases involving those same agencies.
In November 2014, the British government was forced to confirm secret programs within intelligence agencies, like MI5 and GCHQ, that allowed intelligence officials to eavesdrop on legally privileged conversations between lawyers and their clients. As a result, government lawyers have been able to ask questions in court that they would have never thought of before, if it were not for the material intercepted from the private conversations. Furthermore, the documents revealed that GCHQ could gain access to files of intercepted communications from US National Security Agency databases.
The breach of lawyer-client privilege undermines the integrity of the judicial system. In a recent case, two Libyans, Abel-Hakin Belhaj and Sami Al Saadi, and their families were taken to a MI6-CIA facility where they were tortured. After Belhaj filed a lawsuit against the British government for mistreatment, his lawyer feared that their conversations were no longer private. During this time, the intelligence agencies were compelled to acknowledge that they did have access to legally privileged material in their files. This directly violates their rules, as one of the intelligence agency documents states: “Material subject to LPP [legal professional privilege] is amongst the most sensitive sorts of information that may be obtained by the security service. The confidentiality of lawyer-client communications is fiercely guarded by the law and any departure from it in the national security context must be narrowly construed and strictly justified.”
The public disclosure of these programs indicates how intelligence agencies have sought to blur the boundaries defining what is and what is not covered by legal professional privilege. This leaves many to question whether privacy between lawyers and their clients, a core right in the justice system, is actually being upheld.
Owen Bowcott, “UK Intelligence Agencies Spying on Lawyers in Sensitive Security Cases,” The Guardian, November 7, 2014, http://www.theguardian.com/world/2014/nov/06/intelligence-agencies-lawyer-client-abdel-hakim-belhaj-mi5-mi6-gchq.
Victoria Parsons, “First Ruling on Interception of Legally Privileged Material Awaited,” The Bureau of Investigative Journalism, November 14, 2014, http://www.thebureauinvestigates.com/2014/11/14/first-ruling-on-interception-of-legally-privileged-material-awaited/.
Student Researcher: Athena Moguel (Sonoma State University)
Faculty Evaluator: Patrick Jackson (Sonoma State University)