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CounterPunch
January
28, 2003
Bringing Down the
Curtain on Defense Attorneys:
The Lynne Stewart
Case
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
naïve 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.
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