Criminal Representation

Did Congress quietly make it a crime for lawyers to defend terror suspects?

On May 17, 2004, the left-wing lawyer Lynne Stewart will go on trial in New York for allegedly helping a convicted terrorist leader direct jihad operations from inside a federal prison.

Stewart has admitted in interviews since her indictment that in June 2000 she broke an agreement with the Justice Department and violated Bureau of Prisons restrictions to help her imprisoned client, the "blind sheikh" Omar Abdel Rahman, issue a press release to the Reuters news service recommending that his followers in the Islamic Group in Egypt abandon a two-year-old "cease-fire." The Islamic Group was responsible for the 1997 gun-and-knife massacre of 58 foreign tourists and four Egyptians at Luxor as well as other attacks.

Stewart claims that in issuing Abdel Rahman's press release, she did "nothing more than any other lawyer would ever do," helping her client communicate with the outside world and exercising her own right to free speech. She says she is being singled out for representing a reviled client.

Casual observers may be forgiven for dismissing the Stewart prosecution as an anomalous case of a reckless lawyer facing repercussions for irresponsible conduct, with no broader implications for the justice system. It's true that Lynne Stewart makes an implausible civil liberties heroine. She has expressed admiration for Abdel Rahman's decidedly illiberal vision of "positive social change," arguing that the radical Islamic revolution he seeks is "the only hope" for various oppressed peoples in the Middle East. She maintains that American criticism of the Taliban's treatment of women is a case of "the pot calling the kettle black" because of supposedly comparable discrimination against women here. And by her own admission, Stewart concluded for herself that the Bureau of Prison restrictions on Abdel Rahman's communications with the outside world were unreasonable and, instead of challenging the restrictions in court, deliberately helped the sheikh circumvent them.

Yet Stewart's prosecution has revealed a broad and troubling Justice Department strategy. This strategy goes far beyond the need to make sure lawyers abide by restrictions on prisoner communications -- restrictions motivated by the legitimate security concerns that cases like this raise. For that purpose, it would be sufficient to criminalize attorney violations of the restrictions known as "special administrative measures" (SAMs), which have been used since the Clinton administration to prevent Abdel Rahman and other imprisoned terrorists from communicating (directly or indirectly) with their supporters on the outside. Instead, the Justice Department is pursuing a course that threatens the Sixth Amendment right to legal representation by exposing just about any attorney who represents a suspected terrorist to the risk of prosecution, thereby discouraging lawyers from taking such cases or, if they do, from representing their clients zealously.

The conduct for which Stewart was charged occurred before September 11 and before Congress passed the USA PATRIOT Act, a statute aimed at enhancing federal power to fight terrorism. Stewart could not be prosecuted under the PATRIOT Act because of the Constitution's Ex Post Facto Clause, which forbids the application of criminal laws to conduct that occurred before they were passed. That was a lucky break for Stewart, who is instead charged under a predecessor law with providing "personnel" to a terrorist group (by helping Abdel Rahman maintain his leadership role from prison) and with committing "fraud" and uttering "false statements" by promising to abide by the SAMs when she allegedly had no intention of doing so -- a state of mind that may be difficult to prove.

Had the timing of her actions been different, Stewart could have been charged with violating a little-noticed provision of the PATRIOT Act that makes it a crime to provide "expert advice or assistance" to a terrorist group. Although the Justice Department cannot use that provision against Stewart -- and a California federal judge recently limited its reach -- the department's court submissions in her case take the position that legal representation of alleged terrorists is a crime under the PATRIOT Act if the lawyer can be portrayed as acting under "the direction and control" of a foreign terrorist organization. The law does not require any intent to further illegal activities, and the Justice Department contends that there is no exception for "good faith" or "bona fide" legal representation.

All lawyers work "under the direction and control" of their clients, within the limits of the rules of ethics. If the Justice Department's interpretation of the PATRIOT Act is accepted by the courts, any lawyer who represents a terrorism suspect can be charged with a crime if the government claims his client's directives also represent the directives of the terrorist organization the client is accused of serving. In virtually any terrorism case that does not involve a "lone wolf" defendant, it could be alleged that the defendant is acting on behalf of his organization as well as himself in directing his lawyer (as the government alleges in Stewart's case). Defense lawyers who represent accused terrorists may have to depend on the self-restraint of federal prosecutors to avoid facing criminal charges themselves.

Lynne Stewart admits to passing on a message that essentially recommended that her client's followers should resume murdering people, so it's pretty clear that she crossed the boundary of appropriate behavior for defense lawyers in terrorism cases. Whether her conduct was criminal is, of course, for a jury to decide. But her prosecutors' comments about the PATRIOT Act show that the Justice Department wants to radically redraw the boundaries for lawyers who do nothing more than zealously defend their clients. The Justice Department's position offers a glimpse into the future for responsible lawyers who have the courage to defend accused terrorists. The view is ominous.

Lawyer, Defend Thyself

It may seem fanciful to suggest that criminal charges would be brought against a lawyer for nothing more than representing a client in court proceedings, and in fact that power is unlikely to be exercised routinely. But the Justice Department's history suggests that charges may be used, or threatened, against lawyers who represent the government's prime targets too often or too well. And the mere existence of the law and the possibility of charges may chill the zeal of all but the bravest defenders. There is reason to believe this was not an unintended consequence of the PATRIOT Act but the realization of a longstanding Justice Department goal.

Section 805(a)(2) of the PATRIOT Act, the provision that allows prosecution of lawyers, did not spring from nowhere. It has a history in the Justice Department's quiet campaign during the last 15 years to create precedents and obtain legislation that would give federal prosecutors broad power to bring charges against defense lawyers for alleged misconduct in criminal cases. To put it simply, federal prosecutors would like to be both players and referees in the adversarial game of criminal litigation, with authority to penalize their opponents at will.

The Justice Department's ambitions can be seen in several prosecutions during the 1990s in which criminal charges were brought against defense lawyers in an apparent attempt to muzzle the government's most formidable adversaries. Two notorious examples are the prosecutions of the San Francisco lawyer Patrick Hallinan and the Minneapolis lawyer Randall Tigue.

In the early '90s Hallinan, ranked by The Best Lawyers in America as one of the top criminal defense lawyers in the country, handed the Justice Department a streak of high-profile defeats, including a particularly humiliating partial acquittal and jury deadlock in the sensational prosecution of U.S. District Court Judge Robert Aguilar, who was accused of misconduct on the bench. Shortly thereafter the Justice Department cut a deal with one of Hallinan's clients, a marijuana smuggler, allowing him to keep more than $4 million in forfeitable profits from drug dealing in exchange for his testimony implicating Hallinan in a drug conspiracy.

Hallinan was indicted, and the government pushed the case all the way to verdict, relying on the testimony of Hallinan's former client and a number of other drug dealers who also received accommodations from the government for their help. Hallinan's law practice was shut down for two years during the criminal investigation and six-week trial, while Hallinan fought for his freedom and reputation. Ultimately, it took a federal jury a few hours of deliberation to clear Hallinan of all charges.

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