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When Representing An Accused Terrorist Can Mean The Lawyer Risks Jail, Too


Tuesday, Oct. 08, 2002

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.

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.

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.

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.

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.

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. Her textbook, Criminal Behavior (Allyn & Bacon, 2001), explores crime and violence from a developmental perspective. She writes and lectures for continuing legal education courses in Internet law, privacy, genetics, and health law. She is Chair of the Behavioral Science Committee of the ABA Science and Technology Law Section and a member of Litigation and Criminal Justice Sections.

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