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The Lynne Stewart Case

The Lynne Stewart Case, Bringing Down the Curtain on Defense Attorneys

by ELAINE CASSEL

In January, 2002, Attorney General John Ashcroft spent $8,000 for curtains to cover up the semi-nude statutes depicting the “Spirit of Justice” and the “Majesty of Law” in the Great Hall of the Department of Justice Headquarters. What most passed off then as the silly protestations of an authoritarian and puritanical Attorney General seem now, in retrospect, to have been a symbolic gesture that something more sinister was brewing.

For no drapes, no disclaimers, no reassurances can veil the threat to law and justice represented by Ashcroft’s single-handedly imposing a regulation that effectively ended-for certain defendants– attorney-client privilege and confidentiality. On October 31, 2001, the Attorney General pushed through an amendment to federal prison regulations that became effective immediately, without the usual opportunity for prior public comment.

The regulation allows the Department of Justice, unilaterally, without judicial oversight, and with no meaningful standards, to conduct surveillance on attorneys’ contact with people in federal custody, be they detainees with no pending charges, defendants awaiting trial, or convicted persons, “to the extent determined to be reasonably necessary for the purpose of deterring future acts of violence or terrorism.”

Let there be SAM

Before the eavesdropping regulation, the government had begun to impose on detainees, defendants, and convicts Special Administrative Measures (SAM) ) that restrict communication with everyone, including their defense attorneys. Vaguely worded to trap the unwary, the regulations prohibit not only contact with the outside world, but also contact with the attorney that the Department of Justice deems to be outside the scope of “legal representation.” Add to SAM’s Foreign Intelligence Surveillance Act (FISA) warrants (issued for the broad purpose of gathering foreign intelligence information, without the necessity for showing that the target is involved in terrorism or secret intelligence activities), and the DOJ already had a free line to attorney-client communications when the client was alleged to be associated with terrorism.

FISA warrants cannot be used to target Americans except in the “national interest” and to protect against acts of terrorism. However, the eavesdropping regulation, which requires no warrant and can be imposed at any time upon “notice” to the attorney and client that they “may” be monitored, can, and in the case of New York Attorney Lynne Stewart no doubt did, allow DOJ to target attorneys directly without suspicion of their being involved in acts threatening national security.

The Lynne Stewart Indictment

Stewart, a criminal defense attorney with a career-long history of representing unpopular clients, many of whom are court-appointed, is Ashcroft’s first target in what appears to be a war on criminal defense attorneys. She was a member of the court-appointed defense team of Sheik Abdel Rahman, who is serving a life sentence in connection with the 1993 World Trade Center bombing of the World Trade Center (United States v. Rahman, et al., 189 F.3d 88 {1999}). She continued to act as one of his attorneys after his incarceration. Rahman is connected with the Islamic Group, which is on the Secretary of State’s list of terrorist organizations.

On April 9, 2002, Stewart was indicted under the 1996 Antiterrorism Act. She is charged with four counts of aiding and abetting a terrorist organization and faces 40 years in prison if convicted. The indictment indicates that Stewart’s communications with Rahman had been the subject of government wiretaps for more than two years (and about 18 months prior to the October 31, 2001 rule went into effect), probably by means of FISA (Foreign Intelligence Surveillance Act warrants that do not require probable cause, but only a suspicion that one is engaging in terrorist activities) and Title III warrants against her and/or her client. The October 31, 2001 regulation legitimized targeting Stewart directly. Others named in the indictment are Mohammed Yousry, the Arabic language interpreter for communications between Stewart and Rahman; Ahmed Abdel Sattar, a resident of Staten Island, New York and an active Islamic Group leader, whom the indictment describes as a “surrogate” for Rahman; and Yassir Al-Sirri, currently in custody in the United Kingdom.

The indictment charges that (1) Stewart allowed Yousry to communicate with Rahman regarding nonlegal matters, (2) took steps to conceal those conversations by making extraneous comments in English that would mask the Yousry-Rahman conversation in Arabic, (3) violated the SAM by responding to a question asked by the news media about Rahman’s position on a “terrorist” cease-fire, and (4) lied to the government by agreeing to the SAM measures that she violated. Each of these alleged acts were aimed, it is charged, at maintaining Rahman’s influence over the terrorist activities of the Islamic Group. (An important fact is that Stewart was denied further visits with her client until she signed the SAM in 2000.)

What Do Lawyers Do?

The Preamble to the ABA Model Rules of Professional Conduct sets out the broad scope of what it means to be a lawyer. Lawyers are not just professionals and representative of their clients, but they are public citizens with “special responsibility for the quality of justice.” Lawyers serve several functions with dealing with their clients-advisor, advocate, negotiator, and evaluator. As an advisor, lawyers are duty-bound, pursuant to Model Rule 1:2, to render “candid” advice not only about the law, but about “economic, social, and political factors that may be relevant to the client’s situation.”

As advocate, Stewart had the obligation, which she no doubt fulfilled to a fault, of zealously asserting her client’s position under the rules of the adversary system. The Model Rules do not limit this duty to only lawyers whose clients have popular political causes, “All lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel.”

The DOJ constraint limiting attorney-client conduct to “legal” representation is diametrically opposed to the Model Rule’s broad mandate. The October 31 regulation leaves room for the government finding anything beyond entering a guilty plea for a “terrorist” client as beyond the boundaries of “legal representation,” and basis for charging the defense attorney with aiding and abetting terrorism.

DOJ is Listening

Client confidentiality is the very foundation of the attorney-client relationship. A lawyer cannot reveal information relating to client representation unless the client gives informed consent or the disclosure is otherwise necessary to carry out the representation (ABA Model Rule 1:6). Eavesdropping on attorney-client communications renders this requirement a nullity and representation nigh impossible. Every communication with a client, whether taking place in person, by fax, by phone, or email, is privy to the government-if the client is labeled as having connections to terrorism.

The eavesdropping rule purports to maintain a “firewall” or “screen” around topics that the government is not interested in-but what these topics would be are impossible to say. And no defense attorney would be so na?ve as to not expect that the government would use every breath, every word, and every pause to achieve its prosecutorial goals.

What is the Purpose of the Surveillance Regulation?

If the government has reasonable suspicion that the attorney is involved in criminal conduct with the client, the government could obtain a Title III search warrant directed at the attorney. The so-called “crime-fraud” exception to attorney-client privilege justifies piercing the relationship to catch the wrongdoer. The surveillance regulation was not necessary to achieve any legitimate law enforcement ends. So what’s it all about?

Given this administration’s downright antipathy to judicial trials, it would not be unreasonable to suggest that the goal of the government, and Ashcroft in particular, is to deny certain people the right to any counsel at all-in the likelihood they are fortunate to be tried in a court and not held without trial or tried in a “military tribunal.” What potential defense attorney would not be troubled by the thought that the government might be privy to every attorney-client communication (“may” is the operative word, for the government does not tell the attorney if he or she is actually being monitored)? How might that chill client contact? Lawyers representing “terrorist” suspects have talked about the difficulty of communicating with clients. Some only do so in person now, and even then, only by passing notes so as not to be overhead. In person visits to these suspects consume hours of waiting and bureaucratic paper shuffling.

It is conceivable that the attorney could be called to testify against the client, and not be able to assert the privilege because the communication had been recorded. In addition, other clients of the attorney may be caught in the government’s trap. FBI agents seized files and computer disks from Stewart’s office that related to clients other than Rahman.

But that is only the beginning of the dilemma. As the Stewart indictment shows, an attorney can be charged with aiding and abetting terrorism if she engages in many everyday acts of lawyering. Responding to press queries, unless the subject of court gag orders imposed during trials, is a normal part of being a lawyer in a controversial case. The lawyer may choose not to speak, but the choice is the lawyer’s, not the government’s.

Stewart’s reply to the press about her client’s position became an act of aiding and abetting terrorism. Filing a pleading on behalf of an unpopular client could also be seen as an act in furtherance of terrorism rather than an act of legal representation. How is an attorney to know? The regulation is vague, and DOJ will draw the line where it thinks “legal representation” begins and ends. And, not surprisingly, there is no provision for judicial review of attorney surveillance.

With the indictment of Stewart, Ashcroft showed his intention to brand attorneys who represent “terrorists” as “terrorists” by association and to deny their First Amendment rights of speech, petition, and association, as well as to tie their hands in their professional role. Indeed, in a cleverly worded press announcement delivered near Ground Zero on the date the indictments were handed down, he referred to Stewart as an “associate” of the Sheik, mentioning that she was his attorney later in the announcement.

A Meaningless Sixth Amendment

Along with Special Administrative Measures, the October 31, 2001 regulation renders the Sixth Amendment meaningless for individuals and attorneys of the administration’s choosing. The right to counsel is mocked when that counsel’s work is subject to government surveillance. Even if the government does not indict the attorney for illegal conduct in the course of representation, the government can know every aspect of the case, every communication with the client, every legal and factual argument, every case read.

It once was thought (and still is, in civil libertarian circles), that defense attorneys’ unique role was to be a watchdog for civil rights. But that can’t happen when the Ashcroft Justice Department makes itself the gatekeeper of the criminal judicial process. Ashcroft would deny entry to pesky lawyers trying to get hearings for their clients detained for months without being charged. He would certainly bar the door to lawyers who want to find out the names of hundreds of immigrants held incommunicado for a year or more. Though a district judge or two (Judge Doumar in Richmond and Judge Mukasey in New York) has challenged the Administration’s power to limit constitutional rights on an ad hoc basis, appellate courts (like the Fourth Circuit) are handing over the Bill of Rights to Bush and Ashcroft, to do with as they see politically expedient.

Michael Tigar For the Defense

Stewart’s fate is in the hands of Michael Tigar court-appointed to head her defense. Tigar is no stranger to unpopular causes and clients . Indeed, to this observer, the defense of Lynne Stewart might be seen as a culmination of much that Tigar has fought for his entire career-First Amendment rights, especially free speech. Only this time the speaker is a lawyer, and speaking for a client means charges of complicity in client crime

In over 200 pages of motions filed on January 10, 2003, Tigar exhorts the court to dismiss all counts of the indictment against Stewart on many grounds, the most compelling of which may be First Amendment basis. Tigar’s talents as a law professor of more than 25 years are apparent, as the motion is filled with historical, political, literary references in support of his argument that prosecutors are trying to criminalize the lawful acts of a skilled advocate representing an unpopular client. The government’s responses to the motions are due in March, with oral arguments to be held in May 2003. The motions will be the subject of a future article to be published on this site.

A win for Stewart (the trial has been scheduled for January, 2004), may not come soon enough to prevent irreparable damage. Not just to Stewart (whose law practice and livelihood suffers under this cloud of these charges), but to defendants and lawyers in other “terrorist” trials, pending and impending, and to Law and Justice.

ELAINE CASSEL practices law in Virginia and the District of Columbia and is a contributor to Counterpunch and Findlaw.com. She is the chair of the American Bar Association’s Behavioral Science Committee of the Science and Technology Law Section and is the author, with Douglas Bernstein, of Criminal Behavior (Allyn & Bacon, 2001). She also teaches law and psychology. She can be reached at: cassel@counterpunch.org.