High Noon for Ashcroft, Stewart, and the Defense Bar
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 regulationswithout 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 defendantsincluding an American citizen, the well-known New York defense attorney Lynne Stewartfor 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 thatin 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 mediashe "facilitated and concealed communications between Sheikh Abdel Rahman and Islamic Group leaders around the world."
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Lynne Stewart was arrested the morning Ashcroft arrived in New York. At her arraignment, dozens of defense attorneys were in the courtroomnot 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 prisonswithout first showing probable cause to a judgewas 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 encouragednot that he needs much encouragementto 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.
Previously, when a lawyer's files have been scooped up by the FBIin certain drug and money-laundering casesthe Justice Department has set up a screen. A group of lawyers in the Justice Department who are not connected with that particular case sift through the files; they do not show the prosecutors anything not related to the case at hand.
These screeners are supposed to be independent, a way of sheltering evidence that ought to remain in the defense lawyer's private files. But in view of the politicalization of the Justice Department under Janet Reno, and now under John Ashcroft, it is not unduly cynical to wonder how truly independent any screening panel will beespecially in a "terrorism" case so important to the department's zealous boss.
Accordingly, Lynne Stewart's lawyer, Susan Tipograph, an experienced and astute counselor, has asked the judge to assign a special master to go through everything taken from Stewart's office before Ashcroft's prosecutors can inspect it. The judge is considering the request, and the files will remain insulated from the prosecutors until both sides agree to a review procedure.
The prosecution says it will take about eight weeks to provide the defense with all the discovery materialvideotapes, audiotapes, transcripts, copies of warrants, etc. At that point, a schedule for motions can be set up. There will be a status conference before the court on June 12.
Among other things, the prosecution claims to have hundreds of secretly recorded phone conversations from the other defendants.
Lynne Stewart is free to continue practicing law for as long as she is free on a $500,000 bond, but much of her time will now be otherwise occupied, and both clients and potential clients may be concerned that her notoriety in a terrorism case could result, for example, in their getting a worse deal from the prosecutors in their own cases.
Apart from what happens to Lynne Stewart, the result of this indictment of a defense attorney for aiding terrorism will, according to Jonathan Turley, "create a huge, chilling effectindeed, a glacial effecton attorneys approached by highly controversial clients to represent them." This is all the more likely if John Ashcroft does increase the warrantless monitoring of lawyer-client conversations.
Some highly combative defense attorneys will not be intimidated, but much depends on the prosecution's evidence in this trial, on how it was obtained, and, of course, the verdict.
What concerns Stephen Gillers, an expert on legal ethics and evidence at New York University School of Law, are the signsevident to me from Ashcroft's emphasis at his press conference on going ahead with listening in on lawyer-client consultations without a previous court orderthat this monitoring will indeed multiply.
"Ashcroft," says Gillers, "is abusing his authority as attorney general. He should not be doing this invasion of lawyer-client privilege on his own. He is a prosecutor, and needs to get a court order firstshowing probable cause that illicit communication is going on."
Defense lawyers will also be watching to see if Lynne Stewart can get a fair trial, in view of the inevitable pre-trial publicity that has already linked her in the public mind with terrorism. With suicide bombers being so effective in Israel, and with "sleepers"hidden terrorists who could also eventually use their bodies as weaponsamong us here, it may be difficult to get a reasonable, open-minded jury.
One of the counts against Stewart, for instance, is that when Yousry, the translator, read letters to Sheikh Rahman from his confederates in the terrorist Islamic Group, Stewart "actively concealed the conversation . . . from the prison guards by, among other things, making extraneous comments in English to mask the Arabic conversations between Sheikh Abdel Rahman and Yousry."
But since Stewart doesn't understand Arabic, what was she "masking"? The prosecution may have an answer to that and to other chargeslike the one that accuses Stewart of announcing to the media that after an internal debate in the Islamic Group the sheikh had decided to withdraw his support for a cease-fire in the group's terrorist activities. The defense claims that decision was already a matter of public record. Still, Stewart did technically violate her agreement not to relay messages from Rahman to the outside world.
If much of the other prosecution evidence is as slight as that, the defense might be more concerned about the jury being aware of this 1995 New York Times interview with Stewartfrom which the Times reprinted excerpts on April 10, the day after she was arrested: "Ms. Stewart suggested that violence and revolution were sometimes necessary to right the economic and racial wrongs of America's capitalist system. 'I don't believe in anarchistic violence, but in directed violence,' she said. 'That would be violence directed at the institutions which perpetuate capitalism, racism, and sexism, and at the people who are the appointed guardians of those institutions, and accompanied by popular support.' "
How would a juror react to that credo? Particularly when Stewart is repeatedly described in the press as a "radical lawyer," with an apposite partial list of highly controversial former clients? (Her client Sammy "the Bull" Gravano is a terrorist of a non-ideological sort.)
There are high stakes for John Ashcroft in this trial, as well as for Lynne Stewart, the defense bar, and the future health of the Constitution as the administration's open-ended domestic war on terrorism proceeds.
Lynne Stewart faces up to 40 years in prison.
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