Activist attorney Lynne Stewart, who was court-appointed to defend the blind Sheik Abdel Rahman in charges arising out of the 1993 World Trade Center bombing, is charged with aiding and abetting her client’s "acts of terrorism" by speaking to the press about her client’s politicial position. She is being criminally prosecuted for doing what lawyers do–advocating and speaking for her client. In the world according to John Ashcroft, the lawyer becomes synonymous with the client. This is an unheard of spin on the attorney-client relationship, one that defies hundreds of years of history of professional obligation and duty. Ashcroft has made lawyers–as well as their clients–targets in his war on civil liberties. He would vilify lawyers who uphold the highest tradition of their profession.
Now Michael Tigar, an activist himself, who has spent his lifetime representing controversial clients and causes (and as the target of an FBI false smear tactic, former Supreme Court Justice Brennan withdrew his offer to the young Tigar to clerk for him), is representing Lynne Stewart. No case could be more fitting for him than this one. And in this terrorist trial, the government has an attorney who won’t be timid in calling the judge and the prosecutors on their illegal conduct.
In a letter Tigar wrote to Judge Koeltl on May 21, Tigar lambasts the prosecutor’s suggestions that it, and it alone, will decide what evidence Tigar and his client get to see. Though the prosecutor refers to the documents as "classified," no proof, let alone rationale, of their classified status has been disclosed. Morever, the prosecutors say that as to the documents they will let Tigar and his team see, they, the prosecuors and/or their agents, will "monitor" Tigar and his staff to see what they do with the information. Of course, they may also be monitoring his meetings with his client. Ashcroft wrote that into law a couple of years ago.
The judge signed an order agreeing to the government’s proposal, before Tigar had an opportunity to comment on the plan. Tigar warns the judge that the court’s control of the evidence is a violation of the separation of powers between the Executive (that would be DOJ and Ashcroft) and the Judiciary (Judge Koeltl) branches of government, and a violation of defendant’s due process rights.
Incredibly, Tigar’s letter to the judge is dated the same day the story broke about the government’s secreting of evidence from alleged drug kingpin Ochoa and his attorney (see the article on this page). As I noted, Ochoa’s attorney, Roy Black, suggested that the government might be trying to hide its own misconduct in extorting money from drug lords to aid the efforts of the right-wing paramilitary in Colombia.
In the Stewart case, Tigar pulls no punches in calling it as he sees it: "The secrecy in this case," he says, "apparently relates to political acitivty in Egypt. Given the United States official support for the Mubarak regime, it is certainly possible that the government is using secrety as a shield for preferring that regime’s state-sponsored terrorism to non-governmental criminality directed at regime change."
Tigar goes on to warn the judge that the message to lawyers and clerks who are involved in the case, that they must be subject to "background checks" if they wish to read case documents, sends the same message that the FBI, by its own words, tried to send him as a young man–that they would teach the young Tigar a "bitter lesson" in return for his dissident views.
Tigar indeed learned a lesson–and learned it well. He learned not to sit stll for government threats and to fight back at injustice. Tigar will confront the government and Judge Koeltl in arguments on important motions in federal court in New York City on June 13. The trial is set for January 2004.
ELAINE CASSEL practices law in Virginia and the District of Columbia, teaches law and psychology, and writes Civil Liberties Watch under the auspices of The City Pages. She can be reached at: email@example.com