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CounterPunch
October
12, 2002
The Lynne Stewart Case
When Representing an Accused Terrorist Can Mean the Lawyer Risks
Jail, Too
by ELAINE CASSEL
As every lawyer knows, client confidentiality
is the very foundation of the attorney-client relationship. Attorney
Lynne Stewart certainly believed that to be true, but her principles
and zealous representation have landed her a four-count criminal
indictment for aiding and abetting terrorism.
Without warning, Stewart was taken out
of her home and arrested. Attorney General Ashcroft then staged
a press conference within hours of her arrest. The same night,
he appeared on David Letterman's show, to assure viewers (and
potential jurors, it seems) that the "terrorist" lawyer
was guilty as charged.
The basis for the prosecution? Communications
Stewart made with and about her client, a convicted terrorist
for whom she was court-appointed counsel for his trial and whom
she continued to represent in post-conviction matters.
Surveillance
of Attorney-Client Communication Before 9/11
Readers may wonder how Ashcroft learned
of Stewart's supposedly confidential attorney-client communications
in the first place. It may surprise some readers, but even before
9/11 the government had authority to wiretap attorney-client
communications if it had reason to think that the attorney and
client were complicit in criminal behavior.
This is the so-called "crime-fraud"
exception to the attorney-client privilege. As in other wiretap
orders issued by a federal judge, piercing this ancient privilege
requires a showing of reasonable suspicion that a crime is being
committed.
But there are other ways in which the
government can be privy to attorney-client communications. Under
a set of regulations called Special Administrative Measures (SAM),
some incarcerated persons are forbidden from communicating not
only with the outside world, but also with their lawyers on any
topic that DOJ deems to be outside the scope of "legal representation."
What is outside the scope of legal representation?
No one knows, and the DOJ is not saying, as the SAM's are vaguely
worded. But attorneys are not only allowed, but also duty-bound
to provide broad services to their clients, as advisor, counselor,
and intermediary between the client and the government.
According to Rule 1.2 of the ABA's Model
Rules of Professional Conduct, lawyers have a duty to render
"candid" advice not only about the law, but also about
"economic, social, and political factors that may be relevant
to the client's situation."
Thus, for example, while DOJ might believe
it is improper for a lawyer to tell a client the Treasury Department
may be about to seize the assets of his organization, the model
rules may require that a lawyer provide the client with this
information in order to protect his interests.
FISA Warrants
In addition to monitoring attorney-client
communications by means of SAM's, the government could (and no
doubt did, in the Stewart case) conduct surveillance under authority
of a Foreign Intelligence Surveillance Act (FISA) warrant.
To get the warrants, DOJ must convince
the special FISA court (a rotating panel of federal district
court judges) that it needs to conduct counter-intelligence on
people or organizations allegedly engaging in terrorism or secret
intelligence activities against the United States. (However,
FISA warrants cannot be used to target Americans except in the
"national interest" or to protect against acts of terrorism.)
Taken together, Title III wiretap warrants,
FISA warrants, and SAM's did not, in Ashcroft's opinion, give
him enough leverage to interfere in the attorney-client relationship.
So, after the 9/11 attacks - on October 31, 2001 - the Attorney
General promulgated new, and far broader, wiretap regulations
aimed squarely at criminal defense attorneys.
How the New
Regulation Broadly Extended Wiretap Authority
The new regulation became effective immediately,
without the usual opportunity for prior public comment, no doubt
to foreclose what should have been outrage from lawyers and the
public. (For a thorough analysis of the problems with the regulation,
see the column by Akhil and Vikram Amar on this subject.)
Unlike FISA and Title III, the new regulation
allows warrantless wiretaps - requiring only that "notice"
be provided to the attorney and client that they "may"
be monitored. And, unlike FISA, the new regulation can be used
to target American citizens, even without the suspicion that
they are involved in acts that threaten national security.
Under the new regulation, the status
of the client's confinement is irrelevant. He may be a detainee
with no pending charges, a defendant awaiting trial, or someone
serving a sentence. (Even convicted persons have legitimate needs
to work with their lawyers on appeals, habeas corpus petitions,
and to improve conditions of their prison confinement.)
DOJ determines the scope of the "monitoring."
According to the regulation, surveillance is allowed "to
the extent determined to be reasonably necessary for the purpose
of deterring future acts of violence or terrorism."
What's more, there is no provision for
judicial oversight of the decision to conduct surveillance, the
nature and extent of the surveillance, or DOJ's determination
of the boundaries of "legal" representation. Imagine
leaving it up to DOJ to tell you what you can and cannot do for
your client. Presumably, doing any thing more than pleading the
client guilty could create grounds for accusing an attorney of
aiding and abetting terrorism.
The Lynne Stewart
Indictment: Directly Based Upon Attorney-Client Communications
U.S. citizen and New York City attorney
Lynne Stewart is a criminal defense attorney with a career-long
history of representing unpopular clients. For many of them,
she is their court-appointed attorney.
Stewart does the kind of work, in short,
that the ABA's Model Rules state that lawyers have a duty to
do. As the Rules note, "[a]ll 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."
Stewart was a member of the court-appointed
defense team for Sheik Abdel Rahman. Rahman is serving a life
sentence in connection with the 1993 World Trade Center bombing.
(His sentence was challenged on appeal, but affirmed.) Stewart
continued to act as one of Rahman's attorneys after his incarceration.
Rahman is connected with the Islamic
Group, which is on the Secretary of State's list of terrorist
organizations. For this reason, as well as for the bombing, he
is a person of intense interest to the government. Accordingly,
for over two years, his conversations with Stewart were wiretapped.
The surveillance began in early 2000,
presumably pursuant to Title III or FISA warrants. It continued
through October 31, 2001, when the new regulation went into effect
and it could legally have been warrantless. And it did not end
until about six months more, in early 2002. What ended them was
an indictment.
On April 9 of this year, Ashcroft and
his Justice Department issued the indictment. In addition to
charging Stewart, it also charged a number of others: Mohammed
Yousry, the Arabic language interpreter for communications between
Stewart and Rahman; Ahmed Abdel Sattar, a resident of Staten
Island, New York and described in the indictment as a "surrogate"
for Rahman; and Yassir Al-Sirri, currently in custody in the
United Kingdom.
The Specific
Charges Against Stewart
Stewart is charged, under the 1996 Antiterrorism
Act, with four counts of aiding and abetting a terrorist organization.
If convicted, she faces 40 years in prison.
Specifically, the indictment alleges
that Stewart allowed Yousry to communicate with Rahman in Arabic
regarding nonlegal matters, and that she purposely made extraneous
comments in English that would mask and conceal the Arabic conversation.
The indictment also poses charges with
disturbing First Amendment implications. It alleges that Stewart
violated the SAM by responding to a media question about Rahman's
position on a "terrorist" cease-fire and that she lied
to the government by agreeing to the SAM measures, as the government
required her to do in 2000, before she could see her client.
Besides raising First Amendment issues,
this last charge seems particularly troublesome for other legal
reasons. Predicating a fraud charge on a defendant's intent to
violate a contract is unusual, for it is very hard to show such
pre-contract intent. Many people enter into agreements in good
faith but later break them, and the law recognizes that.
Why the Regulation
Puts the Right to Counsel In Jeopardy
The indictment claims that Stewart did
these and other acts in order to help Rahman maintain his influence
over the terrorist activities of the Islamic Group.
An indictment like Stewart's sends a
clear warning to attorneys: Don't represent accused terrorists,
or you could be our next suspect.
It may also make conscientious lawyers
worry that they will not be able to do their job properly with
such clients. A lawyer may wonder if she can be zealous when
torn between avoiding her own prosecution and representing his
client. ("Zealousness," too, is a duty under the Model
Rules). Indeed, a lawyer may be unavoidably caught in a conflict
of interest trap with her own client.
The fear of a conflict of interest, in
such circumstances, would be a very real one. As the Stewart
indictment shows, an attorney can be now charged with aiding
and abetting terrorism simply for engaging in everyday acts of
lawyering. For example, 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.) Yet for Stewart, it is a crime.
Of course, it is certainly possible Stewart
should not have spoken when she did, given the agreement she
signed. But that agreement itself may be unconstitutional as
a violation of both the First Amendment and the Sixth Amendment
right to counsel.
Moreover, the violation may have been
inadvertent; even if it was not, there are many sanctions that
can be imposed upon a lawyer short of a criminal charge - from
disqualification, to disbarment before the relevant court, to
money sanctions, and so on. That the government is trying to
put Stewart in jail for her remark is, given the alternatives,
alarming.
In light of the new regulation, a lawyer
may also worry that he or she will be forced to do the unthinkable:
Testify against a client and disclose the content of their communications
- with the only alternative being the attorney's own prosecution
for contempt of court. Again, the conflict of interest is clear.
No one wants his lawyer to also be his or her potential co-defendant
- for one co-defendant will often cooperate with the government
against another.
A lawyer familiar with the Stewart case
may also worry about exposing other clients to risk. FBI agents
seized files and computer disks from Stewart's office that related
to clients other than Rahman.
Asking a lawyer to represent a client
under all these circumstances is like asking a surgeon to only
do surgery one-handed, and risk jail time if she uses the other
hand. The surgeon may reasonably refuse to do it at all, feeling
that she would be betraying her profession if she provided sub-standard
care.
And what happens when the client charges
the attorney with ineffective assistance of counsel or malpractice
(the client may perhaps be a wrongly accused terrorist suspect
who is later exonerated)? The government won't be the one paying
the judgment or suffering the judicial rebuke if the attorney
fails to walk the perfect line between "acceptable"
representation and zealous advocacy.
In a very real sense, the surveillance
itself flings open the window to government knowledge of every
aspect of the case, every communication with the client, every
legal and factual argument, every case read. In effect, the defense
attorney may become the prosecutor's paralegal and research assistant
- allowing him to anticipate every defense argument and counter
them long ahead of time, even though the defendant does not know
ahead of time what the prosecution will argue. What conscientious
defense attorney would open his or her files to the government?
A Convenient
Way For the Government to Scare Off Competent Counsel
Ending, for all practical purposes, the
right to counsel may be exactly what the Administration wants.
After all, the Administration has expressly denied counsel even
to U.S. citizens Yaser Hamdi and Jose Padilla.
The Supreme Court, however, may well
rule those actions, unconstitutional. But, in the meantime, how
convenient for the Administration if, rather than denying counsel
outright, it can instead intimidate attorneys from accepting
the cases from the outset.
But Stewart is fortunate in that her
attorney, Michael Tigar, is not dissuaded by the government's
tactics. He has been appointed by U.S. District Judge John Koeltl
(of the Southern District of New York) to lead Stewart's defense
team.
Tigar, well known for convincing a jury
not to impose the death penalty on Oklahoma City conspirator
Terry Nichols (Tigar was court-appointed in that case as well),
is no stranger to unpopular causes and clients.
Tigar is mounting a vigorous defense
of his client, even though Judge Koeltl has refused to require
the Justice Department to disclose whether or not it is conducting
surveillance on Stewart-Tigar communications.
But not every lawyer is - or should need
to be - as brave as Tigar. And many lawyers will no doubt think
twice about tempting fate and risking their livelihoods--and
their bar licenses--in order to represent an alleged terrorist
or terrorist sympathizer.
A Chilling
Effect that Will Linger
Tigar has said to the press simply that
Stewart will be exonerated. But we will not know until the end
of her trial (set for October 7, 2003) whether he is prescient
or just optimistic. Meanwhile, irreparable damage will likely
be done to Stewart and her legal practice, and to other lawyers
and their clients, such as those in pending cases in Buffalo
and Portland.
Perhaps they are all guilty as Ashcroft
assures us that they are. But, then again, maybe they are not.
That is what trials are for. And a defendant facing the awesome
powers of the federal government, especially in these times where
branding and labeling one a "terrorist" puts one in
a danger of loss of life and freedom, cannot effectively defend
himself without competent counsel at his side.
Clarence Gideon sensed this when, from
his jail cell, he asked the Supreme Court of the United States
to make Florida give him an attorney if they insisted on depriving
him of his freedom. The Supreme Court agreed, holding, in Gideon
v. Wainwright, that "The Sixth Amendment stands as a constant
admonition that if the constitutional safeguards it provides
be lost, justice will not . . . be done."
This principle, the core of our criminal
justice system, is jeopardized by the government's post-9/11
regulations and the pernicious precedent of the Stewart prosecution.
Elaine Cassel
practices law in Virginia and teaches law and psychology. She
is the co-author of Criminal Behavior.
This article was originally published
by FindLaw Writ.
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