Protecting Attorney-Client Privilege in the Context of U.S. National Security

In the past five years, the American Bar Association has twice had to request the U.S. government to respect attorney-client privilege. The first instance concerned the representation of detainees at Guantanamo Bay, and the second addressed the National Security Agency's mass surveillance of online communications. This article essentially asks under what legal authority the U.S. government can monitor attorney-client communications. This article first explains the basis of the attorney-client privilege in common law and the professional code of ethics regulating the legal profession. It then reviews the exceptions to this privilege, including the crime-fraud exception and the laws allowing monitoring of attorney-client communications, such as Title III of the Omnibus Crime Control and Safe Streets Act of 1968, the Foreign Intelligence Surveillance Act, and special administrative measures implemented in federal prisons. It analyzes whether legal authority exists for U.S. government surveillance of attorney-client communications relating to the representation of Guantanamo detainees and mass online surveillance. This article's purpose is to explain the legal framework for protecting or exempting attorney-client privilege from government surveillance so that it may serve as an instructive reference for Korean institutional and legal actors deliberating the balance of national security and civil liberties.