Privilege Revoked

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http://www.seattleweekly.com/features/0317/news-parrish.php

Privilege Revoked

The government says it can pry into the attorney-client relationship all it
wants.

by Geov Parrish

Lynne 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 on Monday as part of a national campaign to drum up
support-not for a client, but for her own case. Stewart was a member of the
court-appointed defense team for Sheikh Omar Abdel Rahman, who is serving a
life sentence in connection with the first World Trade Center bombing in
1993. After his conviction, Stewart continued as one of the lawyers
representing Abdel Rahman. The Seattle visit came just over a year after her
arrest April 8, 2002, when 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 pretrial motions toward a
January 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 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 their conversation in Arabic; and with allowing the interpreter
and client to speak in Arabic about nonlegal matters. If convicted, she
faces 40 years in prison.

THE CHARGES STRIKE at the heart of the U.S. Constitution's Sixth Amendment
guarantee that all people 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 cannot
mount the best defense. But Stewart's case has broader implications. In the
future, attorneys will be less willing to represent clients like Abdel
Rahman.

And since Stewart's indictment, Ashcroft has gone even further, declaring
noncitizens, and later, U.S. citizens as well, "enemy noncombatants" so as
to hold them indefinitely without charges, denying access to any attorney at
all.

Whether or not the "enemy noncombatant" 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: when the state had reason to believe the attorney and client were
complicit in criminal behavior; as a court-approved part of international
espionage; or if a court barred incarcerated clients from communicating with
the outside world, including their attorneys, about nonlegal 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
monitoring 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 Department of Justice
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 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 that 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 and the
radical lawyers-are the first to lose basic rights.

The rest of us follow.

gparrish at seattleweekly.com