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.

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.

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.