Writing Sample

Yury Byalik ARGUMENT I. RELYING ONLY ON THE PUBLICLY AVAILABLE INFORMATION ABOUT THE WARRANTLESS WIRETAPPING PROGRAM, THE SOCIETY HAS SUFFICIENTLY ESTABLISHED STANDING UNDER ARTICLE III OF THE UNITED STATES CONSTITUTION BECAUSE THE ATTORNEY MEMBERS ARE OBLIGED ON ACCOUNT OF THEIR PROFESSIONAL RESPONSIBILITY TO REFRAIN FROM COMMUNICATING WITH THEIR CLIENTS IN VIOLATION OF THEIR FIRST AMENDMENT RIGHTS. The Circuit court properly held the Society has standing to challenge the government’s Terrorist Surveillance Program (“TSP”) because it suffered an injury which is fairly traceable to the challenged action of the defendant and the injury will be redressed by a favorable decision. The Society consists of attorneys, academics, and political activists in the United States who regularly communicate with individuals located overseas. (R at 10.) The government has conceded that the communications by the Society are precisely the kinds of communications that the government is targeting under the TSP. (R at 8.) As a result, the plaintiffs are presently and continually being harmed. The Supreme Court has acknowledged that it is only necessary that one plaintiff has standing. See Warth v. Seldin, 422 U.S. 490 (1986) (determining that an association may have standing solely as the representative of its members). Thus any party in the Society may bring this claim. Even though each individual member of the society has been injured by the government’s actions, the focus of the injury will rest with the attorneys because they are officers of the law and their “slightest divergence from rectitude involves the breach of all their obligations.” Baker v. Humphrey, 101 U.S. 494, 500 (1880). The attorneys’ injury is a direct result of the government’s failure to comply with the Foreign Intelligence Surveillance Act (“FISA”) in enforcing the TSP. FISA specifically provides “no otherwise privileged communication obtained in accordance with, or in violation 1

of, the provisions of this subchapter shall lose its privileged character.” 50 U.S.C. § 1806(a) (2008). The government, in contrast to the rules established by FISA, has admitted that under the TSP, privileged communication such as those between an attorney and his client are not excluded from being intercepted. (R at 9.) Consequently, the attorneys were required by their professional obligations to notify their clients about the TSP and the likelihood that any communication by telephone or email might be monitored by the government. (R at 11.) The attorney-client privilege is one of the oldest recognized privileges of confidential communications. Upjohn Co. v. United States, 449 U.S. 383, 390 (1981). The privilege is intended to promote honest, open communication between attorneys and their clients and in so doing, “promote broader public interests in the observance of law and the administration of justice.” Id. The relationship between an attorney and his client is one of trust and confidence and requires, as a result, complete revelation of all facts which affect the rights and obligations of either. Orr v. Waldorf-Astoria Hotel Co., 291 F. 343, 344 (8th Cir. Minn. 1923). Additionally, an attorney has a duty to explain matters to his client “to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Model Rules of Prof’l Conduct R.1.4(b) (1983). Furthermore, the rules generally require an attorney to maintain confidential information that relates to the representation of the client. Model Rules of Prof’l Conduct R.1.6 (1983). The comment to ABA Model Rule 1.6 states that “[t]he confidentiality rule . . . applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.” Model Rules of Prof’l Conduct R.1.6 cmt. 3 (1983).

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The government may attempt to undermine this obligation of an attorney by claiming that it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice by interfering with national security. Model Rules of Prof’l Conduct R.8.4(b) (1983). However, this argument is without merit because section (c) provides that it is also a professional misconduct for a lawyer to engage in conduct involving dishonesty or misrepresentation, such as not informing a client his communication is being tapped, which would be in direct contradiction to section (b). Model Rules of Prof’l Conduct R.8.4(c) (1983); ABA Model Rule 8.4(c). Moreover, the government’s argument is immaterial because of the crime-fraud exception which provides that the attorney-client privilege does not apply when legal representation is secured in the furtherance of intended, or present, continuing illegality. United States v. Neal, 27 F.3d 1035, 1048 (5th Cir. 1994). If the attorneys continued communications with their clients, the attorneys would violate the Rules of Professional Responsibility and their ethical obligations. The attorneys’ only other alternative to effectively represent their clients, is to travel overseas to meet with clients in person. This is an immense financial burden on the attorneys and would require a considerable amount of financial resources. This example of harm constitutes a classic form of injury in fact, “indeed, it is often assumed without discussion.” Danvers Motor Co. v. Ford Motor Co., 432 F.3d 286, 292 (3d Cir. 2005). While it is difficult to reduce injury in fact to a specific formula, economic injury is “one of the paradigmatic forms” and has been held to establish standing. Id. at 291. In Danvers Motors Co., the defendants’ required substantial expenditure of resources by the plaintiffs in complying with a certification requirement, and the plaintiffs made very significant out of pocket investments to comply. The Court held that such financial harm is indistinguishable from a garden-variety civil lawsuit. They further opined that standing should always exist to claim damages. Id. at 292. See, e.g., GMC v. Tracy, 519 U.S. 278, 286 (1997) 3

(customers who pay more for a product because of a regulation allegedly "forbidden under the Commerce Clause satisfy the standing requirements of Article III"). The attorneys in this case have suffered an injury because they have had no choice but to change their behavior as a result of the governments wiretapping activity. Where a proscription of activity occurs as a result of a defendants conduct, courts have consistently held that such a “chill” was enough to establish standing. For example, in Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000), plaintiff’s presented affidavits and testimony that asserted that Laidlaw’s chemical discharges, and the affiant members’ reasonable concerns about the effects of those discharges, directly affected those affiant’s recreational, aesthetic and economic interests. Id. One community member testified that he refrained from fishing, camping, swimming, and other recreational activities near a river located by the defendant’s facility because he was concerned that the water was polluted as a result of defendant’s discharges. Id. at 182. Angela, another member, stated that she no longer engaged in similar activities near the river because she was concerned about harmful effects from discharged pollutants and that she and her husband would liked to have purchased a home near the river but did not intend to do so because of such discharges. Id. The Court held that the sworn statements adequately documented the “chilling” behavior and thus injury in fact. Id. at 83. Similarly, in Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149 (4th Cir. 2000), a community member testified that he and his family swim less in and eat less fish from the lake because of his fears of pollution from Gaston Copper’s pollution in excess of its permit. Id. He claimed that the pollution or threat of pollution from Gaston Copper's upstream facility has adversely affected his and his family's use and enjoyment of the lake. Id. at 151. The Court determined that the testimony plainly demonstrated injury in fact and is one “traditionally thought to be capable of resolution through the judicial process.” Id. at 156. 4

It is also important to note that traditional requirements of standing are relaxed when restraint of speech or expression is involved because of the potential for abuse of First Amendment rights. Dombrowski v. Pfister, 380 U.S. 479, 486 (1965). As a result, the Supreme Court has consistently recognized that threatened, rather than actual injury, can satisfy Article III standing requirements. Heckler v. Mathews, 465 U.S. 728, 738 (1984); See, e.g., Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464 (1982); Gladstone Realtors v. Village of Bellwood, 441 U.S. 91 (1979). Further, “one does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending that is enough.” Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979). Plaintiff’s injuries are also caused in part from the decisions of third parties to cease communicating with the plaintiffs. See e.g., Socialist Workers Party v. Attorney Gen., 419 U.S. 1314 (1974) (finding article III standing where defendants activity had the effect of dissuading delegates from participating in the convention). In this case, it would be reasonable to conclude that potential clients of the attorneys would be dissuaded from using them for legal representation if there is a chance that their communications would be tapped. As a result, the injury would be both to the attorneys and the prospective clients as illustrated by the possible loss of employment for the attorneys and the inability of clients to use those attorneys for their representation. The attorney’s inability to effectively represent their clients satisfies the injury in fact requirement. The government in this case mistakes this injury as simply having a chilling effect on attorney’s speech because they believe that no concrete harm exists since the plaintiffs cannot prove they are being tapped. But see Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190 (9th Cir. 2007) (revealing that the NSA monitored electronic communications of Islamic 5

foundation and their attorneys under similar circumstances present here). As a result, the government’s reliance on either Reagan or Laird to support that position is misplaced. United Presbyterian Church v. Reagan, 557 F. Supp. 61 (D.D.C. 1982); Laird v. Tatum, 408 U.S. 1 (1972). In Reagan, plaintiffs claimed injury from the “chilling” of constitutionally protected activities, which they may refrain from pursuing out of fear that such activities would cause them to be targeted for surveillance. The problem with the government’s attempt to rely upon this sort of harm to establish standing in the present case is that allegations of a subjective “chill” are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm. The court in Reagan opined that no part of the challenged Executive Order imposes or even relates to any direct governmental constraint upon the plaintiffs. Reagan, 557 F. Supp. at 63. In the present situation, the government’s activity has a direct affect on attorney’s injuries which cause them to suffer a great deal of harm in violation of their First Amendment Rights. Similarly in Laird, the Supreme Court held that the mere existence, without more, of a governmental investigative and data-gather activity is insufficient to support standing. Laird, 408 U.S. at 1. Plaintiffs claim arose out of their perception of the Army’s surveillance program. They believe that it is inherently dangerous for the military to be concerned with activities in the civilian sector and that the army may at some future date misuse the information in some way that would cause direct harm to respondents. Laird, 408 U.S. at 13. In contrast to Laird, the attorneys here do not simply complain of some generalized fear of future misuse of intercepted communications. The attorneys here complain of specific present and imminent harm that is not capable of being redressed without a favorable ruling. The reasonableness of the attorneys’ fear of surveillance is sufficient to establish actual and imminent harm because the TSP has forced the attorneys to choose between refraining from legally 6

protected rights or requiring them to expend a substantial amount of resources; both of which sufficiently establish injury for standing. See e.g., Warth v. Seldin, 422 U.S. 490, 499 (1975) (it is well established that the injury required by Article III may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing). Accordingly, courts have consistently distinguished Laird where plaintiffs have suffered specific professional or job-related injuries like the kind sustained here. In Meese v. Keene, 481 U.S. 465, 475 (1987), plaintiff wished to exhibit three films but was deterred from doing so by a statutory characterization of the films as political propaganda. Id. The Court held that plaintiff has alleged and demonstrated more than a subjective chill. The Court found that he established that the term “political propaganda” threatens to cause him cognizable injury because such characterizations would damage his personal, political, and professional reputation. Meese, 481 U.S. at 473. The court found that the act in essence forces the plaintiff to choose between foregoing use of his films for the exposition of his views or suffering an injury to his reputation. Id. at 475; See also, Riggs v. Albuquerque, 916 F.2d 582 (10th Cir. 1990) (holding that lawyers, political activists, and politically active organizations that were allegedly targets of unconstitutional surveillance by intelligence had standing). The decisions in these cases fully recognize that governmental action may be subject to constitutional challenge even though it has only an indirect effect on the exercise of First Amendment rights. Plaintiff’s injuries are traced to the TSP and would be redressed if the government was in compliance with FISA. While injury, cause, and redressability are parts of standing that should be analyzed independently, their proof often overlaps. Gaston Copper Recycling Corp., 204 F.3d at 154. The findings of causation and redressability flow naturally from the injury caused by the TSP. If the government complied with the procedures set forth in FISA, they would be required to follow the “minimization procedures” and communications between an attorney and 7

his client would remain privileged. 50 U.S.C. § 1801(h) (2008). Had it not been for the TSP, the attorneys would not be violating any duty by communicating with their clients and their clients would not be concerned that their communications are being intercepted. It is irrelevant to the adjudication of this suit that President George Bush decided not to reauthorize the TSP. (R at 10.) A defendant is not permitted to have a case mooted as a result of his voluntary termination of the allegedly unlawful conduct. Friends of the Earth, 528 U.S. at 174. If the government was allowed to have a case dismissed with their voluntary actions, they would be able to avoid litigation every time by voluntarily refraining from the alleged misconduct. See e.g., Riggs, 916 F.2d at 586 (determining that dismissal prior to discovery would be inequitable under similar facts because plaintiffs have alleged a direct harm caused by defendants’ actions; the defendants cannot argue on one hand that the plaintiffs have failed to prove injury and, on the other hand, that the plaintiffs are not entitled to the very evidence that is essential in proving that injury.)

CONCLUSION This Court should affirm the Circuit Court’s decision that Society has standing under Article III of the constitution and the state secret privilege does not bar its claim. In accordance with the weight of authority, this case should be remanded to the lower court to be heard on the merits.

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