Criminal Representation

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

Jarett Decker from the June 2004 issue

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Randall Tigue, a First Amendment specialist and former head of the Minnesota Civil Liberties Union, made enemies at the Justice Department through his longtime successful representation of Minnesota's "porn king," Ferris Alexander, owner of a string of sex shops in the state. Alexander was a perennial target of the Justice Department for alleged distribution of obscene materials and tax evasion, but for about 15 years Tigue managed to keep his client out of jail and in business.

Then, when federal prosecutors attempted an innovative use of the Racketeer Influenced and Corrupt Organizations Act in an obscenity prosecution against Alexander, they hit upon an effective tactic for assuring that Tigue could not defend the case: They had Tigue himself indicted, alleging that he conspired with Alexander by helping him set up corporations for some of his business interests. Minnesota lawyers, convinced that Tigue had committed no crime, started a collection and raised $100,000 for his defense. A federal jury acquitted Tigue of all charges. But Alexander, without Tigue to defend him, was convicted of racketeering and obscenity.

Criminal Expertise

The Justice Department's attacks on defense lawyers have created unease in the federal appellate courts, even among some of the most pro-prosecution judges. In a 1995 ruling, Hubbard v. United States, the U.S. Supreme Court tried to rein in the Justice Department by narrowing the reach of the federal law prohibiting false statements to the government, Section 1001 of the Federal Criminal Code, so that prosecutors could not use the law against defense lawyers for making statements in court with which the prosecution disagreed.

Justice Antonin Scalia, not usually known as an ally of the criminal defense bar, explained in a concurring opinion that he had "serious concern that the threat of criminal prosecution under the capacious provisions of Section 1001 will deter vigorous representation of opposing interests in adversarial litigation, particularly representation of criminal defendants, whose adversaries control the machinery of Section 1001 prosecution." The Hubbard ruling confirmed the principle that judges and independent attorney disciplinary committees, not partisan prosecutors, generally should exercise the power to determine when lawyers have crossed the line in representing their clients in court proceedings.

So while the Justice Department has found that it can use its prosecutorial powers to disrupt and shut down some of its adversaries in the defense bar, federal judges and juries have imposed troublesome constraints. To tip the scales in its favor, the Justice Department needed legislation giving federal prosecutors broad authority to bring charges against defense lawyers. It smelled an opportunity in early 1995, following the Republican takeover of Congress and the bombing of the Alfred P. Murrah Building in Oklahoma City, which created a climate favorable to all manner of law-and-order measures. Sen. Orrin Hatch (R-Utah), one of the Justice Department's most reliable allies in Congress, introduced a bill that would have made it a felony for a lawyer to knowingly make "a false statement of fact or a false statement of law" in a federal criminal case. Because federal prosecutors determine who is a target for indictment, as a practical matter the proposed law would have applied only to defense lawyers, not prosecutors.

The Hatch bill went much further than overturning the Hubbard decision, because it would have empowered federal prosecutors to charge defense lawyers not just for misrepresenting facts but for offering interpretations of the law with which the Justice Department disagreed. Virtually every contested case involves lawyers offering conflicting interpretations of the law to the court, so the Hatch bill would have exposed defense lawyers to possible prosecution in almost every federal criminal case. Remarkably, the bill would have allowed the indictment of defense lawyers for false statements in court proceedings even if the presiding judge did not agree there was any dishonesty.

When Lawyering Becomes Crime

Unfortunately for the Justice Department, after the initial shock from the Oklahoma City tragedy wore off, Congress settled back into its normal legislative routine. Some sweeping crime and terror legislation was passed, notably the Antiterrorism and Effective Death Penalty Act (AEDPA), which featured an expansive definition of terrorism and broad prohibitions on any "material support" for designated foreign terrorist organizations. But the Hatch bill and a similar bill in the House stalled after heavy criticism by legal experts in House committee hearings.

The political fallout from the Oklahoma City bombing, as profound as it was, was not enough to cause Congress to abandon its basic duty of debate and scrutiny in making law. It would take a greater tragedy for that to happen.

On October 26, 2001, just six weeks after the attacks on the Pentagon and the World

Trade Center, the 107th Congress passed the 350-page legislative excretion known as the USA PATRIOT Act. As has often been remarked since then, the bill was fed to Congress whole by Justice Department draftsmen and then dumped into the U.S. Code in haste, largely unread and undigested by those who voted for it. It is a fool's errand to ascribe any particular intent to Congress in passing the PATRIOT Act, beyond the desire to be seen as taking strong measures against terrorism. The specific provisions of the act are almost entirely the work of the Justice Department.

One provision that passed without scrutiny was Section 805(a)(2), which expanded the definition of "material support" to foreign terrorist organizations. Under the AEDPA, "material support" already included financing, weapons and explosives, lethal substances, training, personnel, facilities, lodging, safe houses, communications equipment, transportation, and "other physical assets." The PATRIOT Act added a new item to the litany of the banned: "expert advice and assistance." There is no legislative history to explain why the addition was necessary, or what the Justice Department draftsmen had in mind. That would not become clear until the prosecution of Lynne Stewart.

In a June 2003 hearing in Stewart's case, Assistant U.S. Attorney Christopher Morvillo acknowledged that Stewart could not be charged under the PATRIOT Act with providing "expert advice and assistance" to the Islamic Group because her conduct predated the law. But Morvillo stressed that the "expert advice and assistance" banned by the PATRIOT Act includes legal representation. Then, in a remarkable June 27, 2003, letter to the presiding judge, Assistant U.S. Attorney Robin Baker explained that under the Justice Department's interpretation, an attorney could be convicted of a crime for representing a client allegedly associated with a foreign terrorist organization "IF the foreign terrorist organization has been designated as such by the Secretary of State -- and IF the government could prove that the attorney was acting under the direction and control of the foreign terror organization" -- even if the attorney did nothing but provide "bona fide legal services."

Baker specifically rejected any notion that the government would have to prove intent on the lawyer's part to further illegal activities, because that "is not constitutionally compelled and is inconsistent with the plain text and structure of the statute." Speaking for the Justice Department, Baker concluded that "criminalizing attorney representation" does "not render the prohibition [on material support] unconstitutional." Baker allowed that "Congress could bestow upon attorneys (or others) an express or implied right to act as an agent of a designated foreign terrorist organization in certain circumstances." Any attorney without such a blessing from Congress would be fair game.