From: Michael Letwin
Sent: Thursday, February 24, 2005 10:31 AM
To: ALAA MEMBERS; Attendance
Subject: Stewart Verdict’s Threat To Defense Attorneys
February 14, 2005
The Lynne Stewart Verdict
Stretching the Definition of “Terrorism” to New Limits
By ELAINE CASSEL
On February 10, after thirteen days of deliberations, a federal jury in New York City returned a guilty verdict in the case of 65-year-old attorney Lynne Stewart. The jury found Stewart guilty on five counts of defrauding the government, conspiracy, and providing support for terrorism.
Stewart will be sentenced on July 15. She may serve up to thirty years in prison. Appeals are expected to consume years. In the meantime, Stewart will lose her right to practice law and face hard prison time.
The eavesdropping on attorney-client communications that led to this prosecution would have been unimaginable before September 11. I will argue that this eavesdropping has a serious cost in inhibiting defense attorney’s ability to zealously represent their clients. This cost is of a constitutional dimension: The Sixth Amendment’s right to counsel cannot be served while the government is a third party present at attorney-client meetings.
Another problematic aspect of the Stewart prosecution is how far the definition of support for terrorism was stretched. Stewart never provided any financial support, weaponry — or any other concrete aid — for any act of terrorism. No act of terrorism is alleged to have resulted from her actions.
Stewart’s supposed support for terrorism instead consisted of aiding her client in 2000 by giving a press release to Reuters News Service in Cairo, Egypt, and of being present when her co-defendants allegedly aided her client in writing a series of letters.
The Facts of the Case
Stewart was appointed by a federal court to represent Egyptian Sheik Omar Abdel Rahman. Rahman was convicted of conspiring to commit acts of terrorism in New York City in the months after the 1993 World Trade Center bombings. But Stewart had nothing to do with that conspiracy.
Rahman is currently serving a life sentence in federal prison hospital in Colorado (previously, he was serving his sentence in Minnesota).
Stewart continued to represent Rahman, after he was convicted, and his appeals were denied. She has said that her representation had two main purposes. One was trying to improve the terms of the blind and diabetic Sheik’s confinement. Another was to try to convince the U.S. to return him to his home country, Egypt.
The government, however, claimed that her continued representation was a ruse so that she could aid the Sheik in getting messages out to his followers, members of the Islamic Group, an organization tied to terrorism.
For a time, the government simply denied Stewart access to her client. But in 2000, the Justice Department said that visits could resume if Stewart would agree to certain restrictions on their meetings.
These restrictions are known as Special Administrative Measures (SAMs). Pursuant to regulations enacted in 1996, these restrictions can be placed on a federal prisoner’s communications or contacts with the outside world – including visitors, and the media — when the government believes “that there is a substantial risk that a prisoner’s communications or contacts with persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons.”
The SAMs prohibited Stewart from having any contact with her client that the Department of Justice deemed to be outside the scope of “legal representation” and prohibited Rahman from having contact with anyone outside prison walls except his wife. The SAMs specifically restricted his access to the media.
Stewart agreed to the SAMs – having little choice, as it was the only way she could visit her client.
What Stewart did not know what that after she signed the SAMs, the government began surveillance of her visits, first under the 1994 Foreign Intelligence Surveillance Act warrant targeting her client, and then under specific regulations that allowed them to target her.
The Eavesdropping Regulation: How the Government Made Its Case
On October 31, 2001, Attorney General John Ashcroft, secretly amended the SAM regulations – without notice to the public. As amended, the regulations allow the Bureau of Prisons to conduct videotape and audiotape surveillance with respect to attorneys’ communications with people in federal custody.
There is no exception for attorney-client privileged communications; indeed, the regulations contemplate that these sacrosanct conversations will be the very ones surveilled. Moreover, the regulations apply not only to convicted persons, but also to defendants awaiting trial – and even detainees against whom no charges are even pending. Finally, the surveillance can be broad: It can done “to the extent determined to be reasonably necessary for the purpose of deterring future acts of violence or terrorism.”
No warrant is necessary for the surveillance to occur. Nor is specific notice to the attorney or the client that they will be monitored; according to the regulations. Rather, routine notice that their communications “may” be monitored is enough.
The government eavesdropped on Stewart’s communications with Rahman – and these communications, along with her subsequent communications with the media, are the sole basis for her conviction.
The government alleges that Stewart never intended to abide by the SAMs, and that – as, it say, it discovered by eavesdropping – she violated them in several ways.
Along with Mohammed Yousry, an interpreter, and Ahmed Abdel Sattar who sometimes acted in the role of a law clerk, the government alleges, Stewart tried to thwart the government’s surveillance. At trial, the government introduced surveillance tapes intending to demonstrate that Stewart served as a willing conduit for the Sheik, using her position as a lawyer as a smokescreen for illegal communications and conspiracies by people whose agenda she shared.
In particular, the government charges, Stewart violated the prohibition on outside contacts in two ways. First, it alleged in 2000, she released to Reuters News Service a statement from the Sheik to his followers saying that he was “withdrawing his support for a ceasefire that currently exists” with respect to violence that his followers in Egypt were engaged in (the cease-fire was declared after 58 tourists were slain in Luxor, Egypt, in a bid to win the sheik’s release). The government charged that the press release was a veiled message for the shiek’s followers to engage in violence. Reuters ran a story about the statement in Arab newspapers.
Second, the government says Stewart was present when Yousry and Sattar allegedly helped the Sheik compose letters that served as communications to his followers. (Notably, though, while Yousry and Sattar speak Arabic, it is undisputed that Stewart neither speaks nor understands Arabic.)
In closing arguments, Prosecutor Andrew Dember argued that Stewart and the co-defendants effectuated a virtual “jail-break,” in which Rahman did not actually get sprung from prison, but did get his messages of violence out to the world.
Yet no actual act of violence, terroristic or otherwise, has ever been linked to either the letters to the Sheik’s followers, or the statement by the Sheik given to Reuters.
Yousry was convicted on the same charges as Stewart; Sattar was convicted of conspiracy to murder civilians.
The Constitutional Issues The Eavesdropping Regulations Raise
Stewart herself was represented by famed civil rights and criminal defense attorney Michael Tigar. Tigar argued, on her behalf that the surveillance regulation was unconstitutional – and thus that evidence procured as a result of surveillance should not be admissible at Stewart’s trial. Although Tigar and Stewart lost their motion, their argument was a strong one.
The Sixth Amendment guarantees a criminal defendant’s right to counsel. The Ashcroft eavesdropping regulations are unprecedented in the way they interpose the government between a client and his or her attorney – and thus violate this right. How can a defendant be expected to speak openly and candidly with counsel, and contribute to his own defense, when the government is listening on every conversation, recording every gesture, following every move?
The trial judge in the case, John G. Koeltl, should have suppressed the eavesdropping evidence, but instead, he ruled against Stewart. He did, however, rule for her on another constitutional claim.
Judge Koeltl’s Rulings on the Terrorism Claims
Remember, Stewart was convicted of defrauding the government, conspiracy, and providing support for terrorism.
The “defrauding the government” charge was weak: It was based on the government’s allegation that Stewart never intended to abide by the SAMs, as she had agreed to do. But it seems likely that Stewart’s intention, instead, was to abide by the SAMs in order to continue to represent her client.
Moreover, the original terrorism charge against Stewart was unconstitutional, as Judge Koeltl held. Initially, Stewart was charged under a federal statute that prohibited providing “material support” for terrorism – regardless of one’s intent in doing so.
The government said Stewart violated the statute by making Rahman’s message available to the press. (Where was the “material” support? The government said it came in the form of “personnel” – meaning, Stewart herself.)
Judge Koeltl wisely reasoned that to prosecute Stewart under this theory was unconstitutional. She lacked sufficient notice that the statute would be applied this way – to prohibit a news release, rather than, say, the provision of weaponry. He ruled that the statute applied to the facts of Stewart’s case was too vague to satisfy Due Process requirements.
So the government, as it explained in a press release, then indicted Stewart for the same acts again, under another federal statute – one that, unlike the first statute, requires intent.
Passed in 1994, after the 1993 bombing of the World Trade Center, the statute prohibits defines a violation as giving material support to anyone while intending or knowing that the support will be used in connection with any one of a list of violent crimes.
What violent crime did the government cite? It claimed Sattar was alleged to have been conspiring to commit terrorism abroad, urging Rahman’s followers to kill Jews. But again, no such crimes have ever been linked to the Reuters news release.
This time, Judge Koeltl found the statute, as applied, to be constitutional. But in doing so, he interpreted the intent standard to require very specific proof: proof that
Stewart knew she was providing resources to carry out a specific violent crime.
The Stewart Conviction is a Warning to Defense Attorneys
Stewart’s defense team had doubts that the prosecution could carry this strong burden of proof. Though the facts were basically not in dispute, Tigar argued that Stewart was acting as a zealous advocate.
The ABA’s Code of Professional Conduct demands zealousness of lawyers. It also mandates that lawyers make their services available to unpopular causes. Stewart was fulfilling both duties by agreeing to serve as court-appointed attorney for Rahman, the defense argued.
Stewart admitted she violated the SAMs, but she was duty-bound to do so, she said. What self-respecting defense attorney, she contended, would let a government restriction stand in the way of the confidential attorney-client relationship?
Through helping with the news release, Tigar maintained, Stewart, as his lawyer, was trying to keep her client’s case before the public and the government, and ultimately hoping to gain his release to Egypt.
The government countered, and the jury agreed, that when she so spoke, and aided her co-defendants in speaking, she was no longer acting as a lawyer. She was aiding and abetting terrorism.
Prior to September 11, 2001, many attorneys might have sided with Stewart. They would certainly have seen a blatant Sixth Amendment violation in both the SAMs and the eavesdropping regulations – and possibly seen First Amendment violations when it came to the SAMs. And they might also have agreed that to honor the right to counsel, an attorney ought to try to resurrect the traditional attorney-client relationship despite these unconstitutional constraints.
Now, however, the First and Sixth Amendments have been gutted–at least in terms of the attorney-client relationship. Indeed, as I argued in the first article I wrote about Stewart, the government seems to be conducting an all-out assault on the right to counsel.
Defense attorneys who represent alleged terrorists – or even detainees who are merely suspected of some connection to terrorism — now know that the government may listen in on their attorney-client communications. They also know that this eavesdropping may give rise to evidence that may be used in their own prosecution for terrorism if they cross the imaginary line drawn by the government.
How can these attorneys be zealous advocates with this government-inspired fear overshadowing their every word?
If the attorneys are prosecuted, they can expect, at trial, to be conflated with their clients – just as Stewart was. The prosecution showed an old tape of Osama bin Laden promising revenge if Rahman were not released. In a courtroom only a short distance from Ground Zero, the tape must have meant a great deal. But it related to Rahman, not Stewart. Though Rahman may be a Bin Laden confederate, that does not mean his attorney is.
The larger issue here is not whether Stewart “stepped over the line” from lawyer to criminal co-conspirator, as the jury verdict implies. Nor is it whether terrorism fears caused the jury to reach an irrational verdict – as may well be the case. The larger issue is that those who face terrorism-related charges will now be entitled to a government-crippled defense.
The Ashcroft Justice Department showed disdain for attorneys–save its own. Unfortunately, the Gonzales Justice Department likely will be even worse on this score. Referring to the Stewart verdict, Gonzales was quick to warn that he would “pursue both those who carry out acts of terrorism and those who assist them with their murderous goals.” (Emphasis added.)
This is pure hyperbole – treating Stewart’s willingness to assist her client in putting out a press release as the moral equivalent of financing or arming terrorists. It furthers the lie that a terrorist’s lawyer, by zealously representing her client, at the same time aids and abets terrorism.
Hundreds of prisoners alleged to be terrorist combatants sit in cages and cells in Guantanamo Bay, Cuba. Every one, according to the Supreme Court, has the right to challenge his detention in federal court, through the ancient writ of habeas corpus.
What attorneys will risk their licenses –and life in prison –in order to protect their rights?
Elaine Cassel practices law in Virginia and the District of Columbia, teaches law and psychology, and follows the Bush regime’s dismantling of the Constitution at Civil Liberties Watch. Her new book The War on Civil Liberties: How Bush and Ashcroft Have Dismantled the Bill of Rights, is published by Lawrence Hill. She can be reached at: firstname.lastname@example.org