Court: NSA can refuse to say if lawyers were wiretapped

The National Security Agency does not need to tell lawyers for Guantanamo Bay detainees whether their phones were tapped as part of the Bush administration's domestic surveillance program, a federal judge ruled Wednesday.

The NSA has refused to say whether it listened in on the conversations of the lawyers who are advising detainees being held at the U.S. naval facility in Cuba. The NSA says even confirming the existence of such wiretaps would jeopardize national security.

A federal judge in New York agreed, saying the super-secret agency can't be forced to disclose information about the program.

"Confirming or denying whether plaintiffs' communication with their clients has been intercepted would reveal information about the NSA's capabilities and activities," U.S. District Judge Denise Cote wrote.

President Bush acknowledged in 2005 that, for years following the Sept. 11, 2001, terrorist attacks, the NSA intercepted international phone conversations and e-mails involving U.S. citizens. The program did not require warrants and operated without oversight from the nation's spy court, which normally approves wiretaps of suspected terrorists and spies.

Since lawyers don't know whether their phones are tapped, some have avoided international phone calls and e-mails with clients and family members, said Shayana Kadidal, an attorney for the Center for Constitutional Rights.

When calls must be made, "It means we begin conversations with, 'We can't be certain the government isn't listening in on this call,'" Kadidal said.

Under the Freedom of Information Act, the lawyers demanded to know whether their calls were intercepted. The NSA refused to confirm or deny the existence of such records. Such a response is allowed when acknowledging the mere existence of a document would compromise intelligence operations.