The Defense Department recorded at least 18 phone calls intended to allow confidential communication between an American citizen being held prisoner by U.S. forces in Iraq and the prisoner’s attorneys at the American Civil Liberties Union, according to a court filing late Friday.
In at least two instances, a civilian Defense Department employee listened to the attorney-client calls, government lawyers disclosed.
The surveillance may have run afoul of a federal judge’s order issued in December calling for the Pentagon to give the ACLU “immediate and unmonitored access” to the prisoner by phone or videoconference.
Justice Department attorneys described the monitoring as “an inadvertent breach … of attorney-client communications.”
“DoD deeply regrets this incident,” the attorneys said.
Not all the calls appear to have involved actual conversations, and some were apparently dialed to the wrong number, the court submission said. The ACLU lawyers took the calls at the U.S. Attorney’s Office in Manhattan, the filing said.
The Justice Department filing also said the monitoring was part of routine surveillance the Defense Department conducts of communications from military phones overseas. Those who arranged the calls were unaware of the monitoring, government lawyers said.
ACLU attorneys were advised of the problem on April 27, the court filing said. The filing does not name the employee or the specific Defense Department division for which he works. The employee did not reveal to anyone the content of the two calls he listened to and has been ordered not to do so in the future, the court submission said.
“Confidentiality of attorney–client communications is a cornerstone of our legal system, and any violation of it is cause for serious concern,” ACLU attorney Jonathan Hafetz said. “The government properly informed us that it recorded and screened our client’s privileged communications, and we will hold the government to its commitment to address this breach.”
The prisoner, who has not been publicly named but appears to be a dual Saudi-U.S. citizen, was turned over to American forces in Syria in September. The U.S. military, which contends that the detainee was allied with ISIS forces, later moved him to Iraq.
The ACLU went to court in October to demand access to the prisoner and to press for his release. Over the Trump administration’s objections, U.S. District Court Judge Tanya Chutkan ordered the U.S. government to allow the ACLU to contact the prisoner.
In April, Chutkan issued a preliminary injunction blocking a U.S. plan to send the prisoner to Saudi Arabia against his will. Last month, a federal appeals court panelupheld that injunction.