What if the government arrested you on terrorism
charges? What if your lawyer was afraid to zealously defend you (as
required by the Model Rules)? What if your lawyer was so afraid, he wouldn't
even tell you that he wasn't able to zealously defend you? This is the direction
American criminal law is taking, according to defense attorney and civil rights
activist Elaine Cassel, author of The
War on Civil Liberties: How Bush and Ashcroft Have Dismantled the Bill of Rights,
and my radio show guest on Feb. 26. [stream]
Last month, a jury convicted
Lynn Stewart, the lawyer for terrorist Omar Abdel Rahman, of five
counts of "defrauding the government, conspiracy, and providing support for
terrorism." Rahman has been in prison since 1996 for involvement in
the plot to destroy New York City landmarks. To read Elaine's articles about
the Stewart case, click here
According to the U.S. government, she "conspired" to deliver a message to Reuters
and she talked loudly about nothing while her client talked with the paralegal.
She faces up to 30 years in prison. Stewart's translator and paralegal are in
deep trouble too. What's so bad about the message to Reuters? Interestingly,
Reuters' article about her conviction last month avoids
mentioning their own role in the "criminal conspiracy" to deliver a message
to terrorists until the very last paragraph, but eventually explains:
"Evidence included a call Stewart made in 2000 to a Reuters correspondent
in Egypt in which she read a statement issued by the cleric saying he had withdrawn
his support for the Islamic Group's cease-fire in Egypt. The group had observed
the cease-fire since a 1997 attack on tourists in Luxor."
Funny thing is, the Islamic Group didn't do anything as a result of this statement.
The cease-fire held. So she
really didn't break the law, since the law says that the government
must respect her right to say whatever she wants. As long as you're checking
the Bill of Rights, take a look at the Fifth
and Sixth Amendments as well. You'll see that the federal government is
also forbidden from depriving "any person" of their rights without due process
and counsel to defend them. The Bill of Rights doesn't say "Americans," or "citizens,"
it says "people," "owner," "the accused" – anyone.
Which bring us to Stewart's other crime, talking out loud. See, in order to
meet with Rahman, the government made her sign a Special Administrative Measures
(SAM) document, which included changes made by John Ashcroft to Bureau of Prisons
rules after 9/11. It applied all sorts of restrictions on what she could say
on behalf of her client, and allowed the government to eavesdrop on her conversations
with Rahman – something she was not allowed to tell him. So, according to the
jury, she violated the SAM by talking loudly while her client was talking to
someone else so the cops couldn't eavesdrop. Stewart's violation of the SAM
is also the basis for the fraud charges.
The fact that this case ever got past the first preliminary hearing ought to
be shocking to all Americans. How are lawyers supposed to represent clients
if they can't talk to them in private? According to Ms. Cassel, this conviction
could lead to a chilling new reality for lawyers in "terrorism cases" from now
on – assuming, that is, that prosecutors don't just turn suspects over to the
military because they don't
have a case at all. In referring to the Special Administrative Measures,
Cassel has written:
"[I]t 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
"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 substandard care."
She also pointed out in the interview that the federal ability to eavesdrop
on conversations between lawyers and defendants is in no way limited to terrorism
cases. Even the judge
from Fox News is worried!
Such is the policy of our government when it comes to post-9/11 "terrorism
cases." The PATRIOT
Act definition of terrorism is so vague as to be meaningless, and so far,
the Justice Department is more
likely to mess it up than get it right. They have used the PATRIOT Act in
many cases that have nothing to do with terrorism. They did use it to convict
the "sleeper cell" in Detroit, but the judge had
to release them because an FBI agent committed felony perjury
in order to obtain the conviction (no word yet if the federal prosecutors are
going to use the PATRIOT Act to charge the FBI with obstructing the great case
they probably had). There are also the convictions of the truly terrifying paintball
terrorists who, as Elaine Cassel shows again, are
innocent men. When they do arrest someone important like Khalid-Sheik Mohammed,
they torture him in Jordan. Innocent
Afghan goat-herders are sent to Guantanamo.
George W. "to
the extent appropriate and consistent with military necessity" Bush warns
of more attacks to come. In order to "protect us," he has appointed Alberto
Geneva quaint and obsolete" Gonzales the new attorney general, Michael "round
'em up and ask questions later" Chertoff the new director of Homeland
Security, and John "I
have no idea what death squads you're talking about" Negroponte the new
director. None of these
appointments bode well for what is left of the rule of law in this country.
Won't the American people demand an end to this madness?
According to Editor and Publisher,
"A recent Gallup poll asked Americans whether they would be willing or not
willing 'to have the U.S. government do each of the following' and then listed
an array of options.
"For example, 'assassinate known terrorists' drew the support of 65% of
all adults. 'Torture known terrorists if they know details about future terrorist
attacks in the U.S.' won the backing of 39%."
"If they know." So first get them to admit they know by asking nicely, then
torture them for details? Perhaps this simply means torture them if you think
they know? By the way, a quarter said it would be a good idea to use nuclear
weapons against terrorists.
In the Lynn Stewart case, the judge thought it would be appropriate for the
prosecution to show the jury a decade-old video of Osama bin Laden saying her
client's name. The U.S. and Britain – where the double-jeopardy "rule" is about
to be revoked – have recently been running around the world sticking rifles
in people's faces, telling them we're bringing them Enlightenment
ideals of individual liberty, the rule of law, self-government, free markets,
and the rest of what most Americans and Britons see as their heritage. As we
do so, the seeds of hatred that are sown and the
enemies we reap are then used by our governments as an excuse to destroy
the same legacy of liberty they claim
to be exporting.
It happened in Stewart's case, and it could happen in yours.