Do US gag orders block seeking of legal counsel? Do gag orders issued in the United States of America prevent you from seeking legal counsel and discussing the case? I expect that anyone who has received a gag order may not understand the legalize of the order and what they can and cannot do. Naturally, I'd expect them to email some lawyers to ask for advice. By definition, a gag order prevents you from speaking about it. But does that also apply to seeking legal counsel? I'm sure there have been countless cases of gag orders in the U.S., but I also expect that we don't know about most instances due to, well, the gag order. Two exceptions come to mind: Calyx Internet Access, 2004 Lavabit, 2013 In the first case, Nicholas Merrill was represented by the ACLU. Was it a violation of the gag order for Merill to contact the ACLU? In the US, does a gag order prevent you from emailing organizations with lawyers for the purpose of seeking legal advice?
The issue raised by the post primarily comes up in the context of a &quot;National Security Letter&quot; which is a form of administrative subpoena which a recipient is not allowed to disclose having received in many cases. For example, the case of ACLU v. Ashcroft, linked in the question, and pertaining to Calyx Internet Access (2004), involved a National Security Letter. There was also a National Security Letter component to the Lavabit (2013) case cited in the question. But the National Security Letter statute itself (at least as presently amended) expressly allows conferral with counsel about it. The relevant statute is 18 U.S.C. § 2709(c)(2) which provides: (A) In general. — A wire or electronic communication service provider that receives a request under subsection (b), or officer, employee, or agent thereof, may disclose information otherwise subject to any applicable nondisclosure requirement to — (i) those persons to whom disclosure is necessary in order to comply with the request; (ii) an attorney in order to obtain legal advice or assistance regarding the request; or (iii) other persons as permitted by the Director of the Federal Bureau of Investigation or the designee of the Director. Even if this exception were not in the law, however, this exception would probably be implied in law, because the courts have held that National Security Letters and similar non-disclosure agreements must provide a timely opportunity for judicial review, which implicitly includes a right to counsel in the proceeding. See Under Seal v. Sessions, Slip Op. at 34-40 (9th Cir. 2017). Similarly, a Medicaid gag rule, that prohibited people from conferring with lawyers regarding legal options for circumventing means tests for the Medicare nursing home program, were held unconstitutional. See, e.g., Zahner v. MacKereth, Civil No. 11-306 Erie (W.D. Pa. Jan. 16, 2014, not overruled or negatively treated on appeal). There are a few tribunals, primarily the Foreign Intelligence Surveillance (FISA) Court (that provides probable cause and legality review for national security inquires) and the military commissions in Guantanamo Bay, Cuba, in which a lawyer representing a party in those tribunals must have a security clearance. But, the requirement of a security clearance to represent someone in the tribunal would not apply to pre-litigation legal counsel to review and response to the National Security Letter.
Ultimately the answer (in the US) is the US Constitution. The courts pretty much have the unlimited power to interpret the law, and the limits on power mainly pertain to what the state can do. The length of the leash on the government depends on what kind of rights are at stake. The weakest and default limit is known as "rational basis", and comes down to asking whether a government action is rationally related to a legitimate government interest (such as stopping terrorist attacks) plus whether there was due process and equal protection. There are more rigorous standards (intermediate scrutiny, strict scrutiny) in case a law involves a "suspect classification", or in case a fundamental constitutional right is infringed. In the case of strict scrutiny, the government would have to show that it had a compelling interest in the action, the law would have to be "narrowly tailored" (i.e. does that thing and only that thing), and should be the least restrictive way to achieve that result. Roe v. Wade is probably the best-know example of that kind of review, which held that abortion laws "violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy". A court would not order a party to do an impossible act. A court could order a party to do something which the party had argued was impossible, but you can interpret a court's decision to indicate that it rejected the argument. The defendant would not shoulder the burden of proving that the action was impossible, though they would have to counter the government's argument that the act could be performed if they believe it is not possible. (In the Apple case, the argument would probably be some Apple-internal document that says "Yeah, we can do it, but do we want to?"). There is probably an expense-related limit in that the courts would not order Apple to liquidate all of their assets to comply. But: if a case were to end up at the Supreme Court, the court is stricken with mass insanity and arbitrarily orders a defendant to do the impossible, there is only the option of impeachment and Senate trial to remove the offending justices, and that is just not going to happen. There is no higher authority that overturns SCOTUS.
Is an attorney permitted to ask questions like those in either paragraphs two and three? Yes. That does not mean that they will be considered relevant or even appropriate, though. Is the witness allowed to decline to answer such questions for reason of irrelevance, or other grounds? Yes. In general, though, it would be safer for the witness to state an objection (be it on the basis of irrelevance, confrontational, asked &amp; answered, as to form, etc.) and answer the question nonetheless, rather than simply refusing to answer it. By simply declining to answer a question regardless of the basis for refusal, the witness risks affording a crooked lawyer the opportunity to falsely generalize that the witness was uncooperative. One exception to the idea of "object-and-then-answer" is where some privilege is the alleged basis for the objection, since the substance of the answer could be such that it amounts to waiving the privilege even where that privilege is legitimate. The witness may also opt to answer the lawyer's irrelevant questions even without stating an objection. Some questions are so obviously irrelevant, dull, or stupid that a failure to raise an objection will be inconsequential. In such scenarios, raising objections can only lengthen the deposition transcript and make it harder to read. For a real-life example of deposition with plenty of dull questions, take a look at the transcript (which I split in parts one, two and three) of the 4-hour deposition where I myself was the witness (you can download the case file, almost in its entirety, from this page). You will notice that I did not raise objections during the deposition, the main reason being what I explained above: To avoid giving the opposing counsel an opportunity to falsely accuse me in court of being uncooperative during deposition. Furthermore, addressing the crook's futile questions (1) projects transparency and helps on the witness's part, and (2) precludes a false &amp; misleading impression as if the witness had something to hide. After all, wrongdoers are the ones most interested in eluding testimony in ways very similar to this other deposition. The reason of being of objections is precisely that the law "is aware" that, as a matter of fact, lawyers indulge in all kinds of abusive questions when taking sworn testimony --be it in trial or at deposition-- of a witness.
National security letters can compel the production of some kinds of (non-&quot;content&quot;) user data, and (according to Wikipedia) typically contain a nondisclosure requirement forbidding the recipient of the letter from disclosing it. I assume that a witness has received and complied with a national security letter, and a non-government party wants to ask the witness questions which outside the courtroom, the witness would be forbidden to answer by the national security letter. The witness, or the government if represented in the lawsuit in question, may object to the questions. The purpose which justifies the secrecy requirements of a national security letter is also likely to justify the exercise of state secrets privilege. If the judge thinks a statute might otherwise be violated, they might intervene in the absence of any objection, or consider alternative remedies like an in camera hearing. If the court does not intervene to prevent the evidence being given, and the witness is charged with breaching the secrecy law, this would raise complex questions about the interpretation of the law imposing criminal penalties. The common law doctrine of absolute privilege for witnesses giving evidence in judicial proceedings applies in the United States, and could be raised in defence to any criminal charges.
Unless you received an order from the court prohibiting contact, it might be legal; but it's probably not the best idea. Let the lawyers handle it Attorneys have far better, more effective means of dealing with this situation than the course of action you describe. Lawyers have productive tools to accomplish the job and they know how to use them. For example, assume the best-case-scenario results from your idea and you get the other side to admit their affidavit is fallacious in some way. "Aha!" you shout. "Success! Daylight!" But then what? It's not on record. You can't testify to the admission because that's hearsay. Now imagine they next share this information about your little conversation with the counterparty that had them sign the affidavit in the first place. After first being alerted of your concerns, they both now act in concert to shore up their stories and you never see that "daylight" again. Contrast that outcome with one where your guy or gal's attorney deposes the witness under oath, gets them to concede to your version of the facts then introduces the deposition as favorable evidence at trial. That's a much better outcome for "your side." Wouldn't you agree? Be wary of unintended consequences Generally speaking, such direct contact between the parties is often problematic and rarely helpful. (Except, in some cases, when direct contact between the parties leads to a negotiated settlement. Which happens far less often than the direct contact going sideways making the situation even more intractable.) Before you launch off on your own and do something that might be counterproductive. First, identify the areas of the affidavit that you think are inaccurate. Give that information to the party you support, then have them run it by their attorney to figure out the best way to handle the situation.
The wording is a little confusing, but I interpret it as saying the following: Normally, discovery in a court case allows either party to demand documents from the other, to be used as evidence. However, our courts have exceptions; certain documents might be 'privileged against discovery', meaning they couldn't be demanded in that way. If one of those exceptions would apply to a document under court rules, then you can't request it under Freedom of Access either. To know what those privileges are, and how broadly they apply, you'll have to consult the rules of court procedure for your state.
Defamation laws do not distinguish between charitable organizations and others: however, in the US there are special considerations for "public figures" (they are not afforded as much protection). The medium does not matter -- texting, blogging, letter-writing, whatever. The defamatory statement need not have been received by a wide audience – it suffices that the message was received by one person other than the person being defamed. A single defamatory act is all it takes: there is no requirement of there being an established and repeated practice of defaming. One way to defend against a charge of defamation is to show that the statement is true. An alternative is to show that the statement is incapable of being proven true or false (e.g. calling someone a "jerk" doesn't assert a factual proposition). A careful scrutiny of the actual statement, performed by an attorney specializing in such matters, is really the only way to know whether words like "may", "possibly" would make a statement an expression of opinion rather than a statement of fact. A person suing for defamation would have to have suffered a loss, but there is a category of false statements, per se defamation, considered to be so injurious that damage need not be proven. That included allegations of criminal activity and allegations of professional incompetence, either of which could be applicable in the context you are describing. The First Amendment provides much protection against such suits, which may not exist in other countries. Because of this, a law was recently passed in the US, 28 USC 111, which says that domestic courts will not enforce a foreign defamation judgment that is inconsistent with the First Amendment. [Addendum] This part is crucial: "The only people I've expressed my concerns to, aside from the organization itself, is my parents and my wife's parents. However, they have shared with a few friends...". If you alleged illegal behavior to your parents, that's a problem. If you only said e.g. "I have concerns", that's not a problem. It would also matter in what way you tried "to disclose to a U.S. based organization details of the foreign organization they are supporting that indicate it might not be on the up and up".
It's happened before in real life. Here is a 1994 article describing an Illinois criminal trial where defense counsel pulled the old switcheroo and sat a different person with him at the defense table instead of the defendant. The defendant, instead, sat somewhere else in the courtroom. After a witness misidentified the perp as the person at the defense table (not the defendant), the judge directed a not-guilty verdict to settle the case but sanctioned the defense attorney instead. The appellate and state supreme courts upheld the sanction (by a one-vote margin in both cases) but dissenting opinions noted counsel and defendant technically broke no rules. From the article: The dissent said Mr. Sotomayor's intent was only to show the unreliability of the prosecution's witness. Moreover, seating a client at counsel's table is customary but not required. Nor is a lawyer obliged [...] to help a witness make an identification. Also, here is a similar but not duplicate question.