Criminal Representation

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

Jarett Decker from the June 2004 issue

(Page 3 of 3)

In short, the Justice Department believes that by quietly inserting the ban on "expert advice and assistance" into the PATRIOT Act, it got what it could not get through the more ham-fisted Hatch bill of 1995: a broad power to prosecute defense lawyers who get in the way, at least in terrorism cases.

If the rulings so far in the Lynne Stewart case are any indication, the federal courts may find no constitutional authority to strike down the criminal ban on "expert advice and assistance" as applied to attorneys. On July 22, 2003, U.S. District Court Judge John G. Koeltl threw out two of the four charges then pending against Stewart, specifically those alleging that she provided and conspired to provide material support to the Islamic Group. Some of Stewart's supporters and news media commentators hailed the ruling as a victory for the defense bar. They need to read it more carefully.

Terrorizing Lawyers

Because Stewart could not be charged under the PATRIOT Act with providing "expert advice and assistance," prosecutors had to stretch the terms of the AEDPA to charge her with providing material support to a terrorist group. They alleged that Stewart illegally provided the Islamic Group with "personnel" (namely herself) and "communications equipment" (consisting of the office equipment she used to issue a press release to Reuters in Egypt announcing that Sheikh Abdel Rahman favored abandoning the cease-fire).

Judge Koeltl found that the government had stretched the AEDPA too far. Because the charges involve issuing a press release, he applied the "heightened scrutiny" required for laws that implicate First Amendment rights. He concluded that the ban on providing "personnel" does not clearly and fairly warn that a person can be charged for "providing himself," and that the ban on providing "communications equipment" does not clearly and fairly warn that a person can be charged for using communications equipment rather than turning it over to a terrorist organization. But Koeltl specifically rejected a constitutional argument that the ban on material support is overbroad. That means that the law stands and can be used against lawyers (and others) when its terms fairly and clearly apply.

In November the prosecution tried to resurrect the "material support" charges with a new legal theory in a superseding indictment. The new charges allege that Stewart provided and conspired to provide Abdel Rahman as "personnel" to the Islamic Group in violation of the AEDPA, because his instructions and leadership would not have been available to the terrorist group without Stewart's efforts. Stewart's counsel has moved to dismiss the new charges on the grounds that the ban on providing "personnel" to a terrorist group does not clearly and fairly warn that a person can be charged for passing messages from a prisoner to the press. The motion is pending as of this writing, but judging from his prior rulings, Judge Koeltl may well side with the defense again. Even if he does, that will leave the fraud and false statement charges pending against Stewart and will provide little comfort to attorneys facing the PATRIOT Act's ban on providing "expert advice and assistance."

Whatever else may be said of the ban on "expert advice and assistance," its plain terms would seem to encompass legal representation. Lawyers will be hard-pressed to argue that the ban is too vague as applied to them. And ironically, lawyers who provide ordinary and bona fide legal services in defending terrorism suspects may be more vulnerable than Lynne Stewart, whose actions went beyond appropriate legal representation but who could more easily claim First Amendment protection because her conduct involved the issuance of a press release.

The most obvious constitutional challenge to the ban on "expert advice and assistance" would be that the law infringes on the Sixth Amendment rights of defendants to effective assistance of counsel. But here the PATRIOT Act's pernicious ingenuity becomes clear: The law can have enormous impact while very rarely being invoked, because defense lawyers will have to consider with their every legal maneuver whether they may anger their adversary too much and face the personal and professional ruin that an indictment would bring, regardless of whether they could ever be proven guilty of a crime.

The effect of the law may be pervasive and profound, but unless the law is invoked by the government in a particular case, it will be difficult to prove a violation of the Sixth Amendment. There is no constitutional precedent for striking down laws because they create a general environment of fear that prevents defense lawyers from providing the full measure of zealous representation. Perhaps the courts will make some.

In January a federal trial judge in California held that the PATRIOT Act's ban on expert advice and assistance violates the First Amendment when applied to the activities of certain international human rights groups. But it is not clear whether that ruling would extend to lawyers not engaged in political advocacy, nor is it clear whether the ruling will withstand appeals or be followed in other courts. The U.S. Court of Appeals for the 9th Circuit, which will hear the case on appeal, is known for its sympathy to defendants' rights but is frequently reversed by the Supreme Court.

In the end, the courts may find the ban on "expert advice and assistance" as applied to defense lawyers too much to stomach. But that will require brave lawyers to take great risks in the interim. Randall Tigue and Patrick Hallinan have done their service. Civil libertarians have to hope there are more lawyers like them.

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