High Noon for Ashcroft, Stewart, and the Defense Bar

Dozens of Lawyers Appeared at the Arraignment

On April 9, the attorney general of the United States strode before the press to proudly brandish his proof that his war on terrorism is succeeding. Brushed aside by him were the hundreds of detainees he's held for months for minor violations of immigration regulations—without any links to terrorism. Also ignored was that day's decision by a federal court judge in Detroit that Ashcroft's closings of immigration hearings around the country are unconstitutional.

In front of national and international television here in New York, Ashcroft announced criminal indictments against four defendants—including an American citizen, the well-known New York defense attorney Lynne Stewart—for helping convicted terrorist Sheikh Omar Abdel Rahman send messages to the Egyptian-based Islamic Group (IG) of which he remains the spiritual leader.

The sheikh, convicted of the 1993 bombing of the World Trade Center and also of failed plots to blow up the United Nations and the Holland and Lincoln tunnels, is imprisoned for life plus 65 years.

One of the criminal conspiracy counts against Lynne Stewart alleges that—in violation of her agreement to communicate with Rahman only on legal matters and not to pass on any communications from him to anyone, including the media—she "facilitated and concealed communications between Sheikh Abdel Rahman and Islamic Group leaders around the world."

Lynne Stewart was arrested the morning Ashcroft arrived in New York. At her arraignment, dozens of defense attorneys were in the courtroom—not only offering her support but also apprehensive that the Justice Department's aggressive war on terrorism might include monitoring their conversations with particularly controversial clients.

In 1998, before Ashcroft became attorney general, the Justice Department went to a federal judge and secured a warrant to monitor conversations between Stewart and Rahman at the Federal Medical Center in Rochester, Minnesota. The government also got permission to execute wiretaps on other Rahman associates elsewhere. Among those indicted with Stewart is Mohammed Yousry, the Arabic interpreter and translator of conversations between the sheikh and his attorneys in prison. Lynne Stewart does not speak or understand Arabic.

Permission to violate lawyer-client confidentiality, which is at the heart of the Sixth Amendment guarantee of "the assistance of counsel," is rare. A judge can, however, grant this breach of the privilege if the prosecution can show probable cause that the lawyer to be monitored is acting in furthering the crimes, or acts of fraud, by the defendant.

During his dramatic announcement of the indictment, Ashcroft repeatedly said that his own order last year allowing the FBI and other government agents to monitor lawyer-client conversations in federal prisons—without first showing probable cause to a judge—was only now going to be implemented. That's one of the reasons defense lawyers are so concerned with this case, which Lynne Stewart expects will be a "a touchstone case."

When Ashcroft first announced his new order to listen in on lawyer-client conversations, that abuse of the Sixth Amendment was vehemently attacked by the American Bar Association and the National Association of Criminal Defense Lawyers, as well as by various newspaper editorial writers.

Now, with this very high-visibility indictment of a lawyer for allegedly helping to spread messages from a terrorist leader (among them, "Kill [Jews] wherever they are!"), many defense attorneys expect that Ashcroft will be encouraged—not that he needs much encouragement—to expand the government's presence as a very attentive third party in consultations between lawyers and their clients.

There was another reason all those lawyers were in court as Lynne Stewart answered the charges against her by pleading "Emphatically not guilty!": the government's search of her office the day of her arrest. Imagine yourself as a lawyer watching the FBI carting away your confidential files. Or imagine yourself a client with the information you've given your lawyer now in the hands of prosecutors.

As the April 10 New York Times reported, that lawyers' nightmare has come to life. "Late yesterday, FBI agents could be seen leaving Ms. Stewart's law office at 351 Broadway (Franklin Street), carrying two computers, a box filled with sealed envelopes, and a large sealed evidence bag.

"Martin R. Stolar, a lawyer whose office is near Ms. Stewart's, said, 'They went through everything, hard drives, her files, books, you name it. It's scary when you walk into an attorney's office and see that type of thing.' "

Meanwhile, there are serious questions as to the quality of the alleged evidence against Lynne Stewart. New York Times reporter Ben Weiser, whose work there and at The Washington Post I've admired for years, cited one example on the April 9 NewsHour With Jim Lehrer on PBS: "There's no evidence that the alleged information from Stewart led to subsequent terrorist attacks or to 9-11."

And constitutional lawyer Jonathan Turley told me that the prosecution "will have to show clearly that Stewart was aware of the illegal nature of the communications from Rahman through his interpreter, Mohammed Yousry." Since she doesn't understand Arabic, what did she know of those communications?

However, a jury ultimately will decide that question. Stewart's computers and files, including her Rolodex, are currently in the hands of the Justice Department. Among her clients are some of interest to the FBI and the New York Police Department. Those clients may be somewhat uneasy at the moment, aware that prosecutors may eventually browse through their confidential information.

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