Dissident Voice

April 28, 2003

Lynne Pettifer Stewart, a New York human rights lawyer with a taste for radical politics, is accustomed to representing unpopular clients.

She never dreamed it would become illegal.

Stewart was in Seattle last Monday as part of a national campaign to drum up support not for a client, but for her own case. Among her clients is Sheik Abdel-Rahman, for whom she was appointed by a court as counsel after he was originally accused of inspiring the First World Trade Center bombing in 1993. Now serving a life sentence for those bombings, Abdel-Rahman has continued to be represented by Stewart after his conviction. The Seattle visit comes just over a year after her April 8, 2002 arrest, in which she was taken from her home without warning, federal agents combed through her office seizing files on all of her cases, and Attorney General John Ashcroft proudly announced that Stewart had been charged in a four-count criminal indictment with aiding and abetting a terrorist organization--solely for her work in representing Abdel-Rahman.

Stewart's case, now winding its way through pre-trial motions toward a scheduled January 2004 trial, stands as a critical test for the Bush Administration's newly reserved right to violate lawyer-client confidentiality in order to wage the War on Terror. It also has a significant First Amendment freedom of speech component. Stewart's indictment charges her with discussing Abdel-Rahman's case with a Reuters reporter--even though no gag order barred her from doing so; with talking while an interpreter was speaking with her client during a consultation in his prison cell, thereby preventing the Justice Department from taping the two's Arabic talk; and that she allowed them to speak, in Arabic, about non-legal matters. If convicted, she faces 40 years in prison.

The charges strike at the heart of the US Constitution's Sixth Amendment guarantee that all persons accused of a crime are entitled to effective representation by an attorney. Courts have long held that attorney-client confidentiality is essential to that right; without the ability to speak freely about what they have, and have not, done, defendants are severely impaired from learning their legal status and options, and attorneys similarly impaired from mounting the best defense. But Stewart's case goes further--casting a chilling effect that makes it far less likely that future attorneys will even be willing to represent clients like Abdel-Rahman. And since Stewart's indictment, Ashcroft has gone even further--declaring non-citizens, and later US citizens as well, "enemy non-combatants" so as to hold them indefinitely without charges, denying access to any attorney at all.

Whether or not the "enemy non-combatant" ruse is eventually ruled unconstitutional, Stewart's case risks setting a precedent that could literally destroy an accused terrorist's right to counsel--while allowing the government to choose who qualifies as a "terrorist." Even before 9/11, several federal provisions allowed investigators to violate attorney-client privilege: if the state has reason to believe the attorney and client were complicit in criminal behavior; as a court-approved part of international espionage; or if a court bars incarcerated clients from communicating with the outside world, including their attorneys, about non-legal matters.

But Ashcroft's provisions, announced and implemented without public notice or comment less than three weeks after 9/11, are far broader--allowing the use of attorney-client conversations without a court order or supervision, or even the suspicion of criminal behavior by the attorney, if the client is accused of terrorism. The regulation allows surveillance "to the extent determined to be reasonably necessary for the purpose of deterring future acts of violence or terrorism." The DOJ alone does the determining.

Among other things, such monitoring allows the government complete access to everything the defense knows and every strategy the defense plans. It raises the possibility that attorneys could be called to testify against their clients, or that attorneys could even be charged for withholding information on a crime from investigators. Attorneys' personal jeopardy creates an impossible conflict of interest with their professional duty to fully represent their clients. The government, at its leisure, can target lawyers - - ones like Stewart, with a long history of representing unpopular clients, or like the lead attorney in Stewart's defense, Michael Tigar, famed for saving Oklahoma City bomber Terry Nichols from execution. And Ashcroft's regulation, if upheld, sets a precedent state and local jurisdictions can rush to emulate.

Lynne Stewart is a guinea pig--a chance for the Bush Administration to see how far it can push its evisceration of the Bill of Rights. The attack on attorney representation is only one of a staggering number of its post-9/11 assaults on the Constitution--but it's one of the most important. Invariably the least sympathetic among us--the accused terrorists, the radical lawyers--are the first to lose basic rights.

The rest of us follow.

Geov Parrish is a Seattle-based columnist and reporter for the Seattle Weekly, In These Times and Eat the State! This article first appeared in Eat The State!