On April 9th, 2002, Attorney General John Ashcroft appeared on The David Letterman Show, where he proudly announced the indictment of defense attorney Lynne Stewart and promised that every “terrorist” – Stewart included - would be brought to justice. In direct violation of a court-issued gag order, the construction of Lynne Stewart the terrorist – rather than Lynne Stewart the zealous advocate – had already begun. Stewart, a veteran defense attorney who spent decades representing some of the world’s most unpopular clients now faced the prospect of spending decades behind bars. Ashcroft’s reason for boasting was clear enough: he had succeeded in indicting a radical, female defense attorney – a persistent thorn in the government’s side – for violating Special Administrative Measures, or SAMs, which limited communication between her and her client, Egyptian Sheik Omar Abdel-Rahman, who had previously been convicted of conspiring to commit terrorist acts in New York City following the 1993 World Trade Center bombings. In the original indictment for United States v. Ahmed Abdel Sattar, Lynne Stewart, and Mohammed Yoursy – universally referred to as United States v. Sattar et al - The United States Department of Justice accused Stewart of aiding and abetting a terrorist, and violating rules which prohibited her from having any contact with Abdel-Rahman that fell outside of the realm of “legal representation”. According to the indictment, Stewart had conspired with Sattar, a former paralegal and a communicator between the Sheik’s family, his supporters, and his legal team, and Yoursy, an interpreter who has not been linked to Islamic fundamentalism, to provide material support to the Islamic Group; conspired to defraud the United States; and made false statements. More specifically, Stewart was accused of providing material support to for terrorism by aiding her client in communicating with the media, most notably, in 2000 when she served as an intermediary, providing a press release from Abdel-Rahman to Reuters in Egypt, the contents of which urged the Sheik’s followers to reject a cease fire with the Egyptian government. She is further accused of deliberately intervening to conceal Abdel-Rahman’s jailhouse information exchanges with his interpreter. In July of 2003, Judge John Koeltl of the Second Circuit, dismissed the two terrorism charges as unconstitutionally vague, stating that they displayed a lack of “prosecutorial standards”
[1]. Following Koeltl’s decision, the Department of Justice re-wrote the indictment, altering the language, and correcting inaccuracies that existed in the original. Stewart, Sattar, and Yoursy were again formally indicted on nearly identical charges in November of 2003.
During the trial, the central contention of the prosecution was that Stewart knowingly violated the SAMs imposed on Sheik Abdel-Rahman with malicious intent. While Stewart did not contest the fact that she violated the SAMs, she argued that such an infraction was necessary both because the SAMs were unconstitutional, and because her professional responsibilities as a defense lawyer demanded she do so. Stewart’s violation of the SAMs, however, was not the only critical aspect of the case introduced by the government. In a trial that took place less than ten blocks from ‘ground zero’, the prosecution routinely called on images of 9.11 and the World Trade Center - at one point going so far as to play a video of Osama Bin Laden, where Bin Laden expresses his admiration of Abdel-Rahman – in order to connect the Sheik to Bin Laden, and transitively, Stewart to the worlds’ most wanted terrorist. The emotional impact of such tactics cannot be overstated.
On February 10th, 2005, after thirteen days of deliberation, a New York jury found Stewart guilty on all counts of the indictment, affirming that she was guilty of conspiracy, defrauding the government, and providing material support for terrorism. The decision, which some have argued wrongfully blurs the line between defending terrorists and participating in their illegal activities, sent a chill through the legal community, and was viewed as being intended – at least largely – to serve as a warning to defense attorneys that it is unwise to represent terrorists.
[2] Protest from criminal defense lawyers was immediate, with the National Lawyers Guild condemning the verdict as “intimidation” and “repression” in direct violation of the Sixth Amendment right to an attorney
[3]. While numerous civil liberties organizations and legal scholars echoed these sentiments, and the reaction within the legal community was overwhelmingly critical of Stewart’s conviction, some – like Steven Lubet, director of Northwestern University's program on advocacy and professionalism - have spoken out in defense of the verdict, arguing that Stewart crossed the line between “vigorous defense” and “[facilitating] her client’s political goals”.
[4] More controversy over Stewart’s prosecution – or persecution, depending on your perspective – is likely to ensue when Stewart faces sentencing on July 15th.
At the center of the controversy surrounding the Stewart verdict are the ethical challenges faced by attorneys who zealously defend high profile defendants in criminal cases, particularly in cases involving Special Administrative Measures, or, SAMs. First, we will discuss the nature of the Special Administrative Measures that Stewart was found guilty of violating, and how they can be construed as both unconstitutional and unfair when considered in the context of our adversarial legal system. Second, we will examine Stewart’s actions as being necessary to uphold her professional responsibility. Next, we can consider actions taken by the defense attorneys for Richard Reid (US v Richard Reid) as instructive with respect to how defense attorneys can, at the very least, protect themselves from prosecution stemming from their zealous advocacy. Finally, we will explore why defense attorneys must not only refuse to affirm Special Administrative Measures and other attacks on attorney-client privilege, but furthermore, must challenge the imposition of such measures as fundamentally unconstitutional.
Attorney-client communication has been officially subject to government monitoring, under federal law, for the past several decades. Both the Foreign Intelligence Surveillance Act of 1978, and less directly the Omnibus Crime Control & Safe Streets Act of 1968 allow the government to monitor attorney-client conversation when the government can show that there is “probable cause to believe that the target of the proposed surveillance is. . . an agent of a foreign power” or when the government has probable cause to believe that the suspect has committed or is going to commit a particular crime, and that the proposed surveillance will intercept communications pertaining to that offense.
[5] Traditionally, Special Administrative Measures (SAMs) were used primarily to prevent suspected terrorists from passing information to their followers or the media. But a revision of the SAMs by Attorney General John Ashcroft, effective October 31, 2001, provided “monitoring of attorney-client conversations as an additional SAM . . . and allows the government to utilize this measure without a court order or showing of probable cause”.
[6] Additionally, the revised SAMs do not require the Department of Justice or Bureau of Prisons to inform the involved parties that their communications may be monitored and recorded. It is pertinent to note the timing of events in this scenario: Abdel-Rahman had been subject to SAMs since 1997; the incidents that form the basis for the indictment took place primarily in May 2000 and July 2001; Ashcroft’s revision of the SAMs did not occur until October 2001. As such, the specific conditions the government placed on Stewart’s communication with Abdel-Rahman, while legal under the revised SAMs, were of questionable legality at they time they were implemented. “Although the October 2001 amendments to the Bureau of Prisons regulations may permit the government’s conduct under limited conditions now, there appears to have been no authority for their actions prior to that date.”
[7] One could engage in a lengthy discussion of the illegitimacy of retroactively applying new SAMs to Stewart’s past actions, or, of the illegitimacy of the SAMs altogether, given that the revisions were authored by Ashcroft – not Congress -, a gross usurpation of the powers constitutionally delegated to Congress (Article I, section 8), however, we must forgo such a discussion in favor of a more focused examination of how the SAMs effectively deny competent counsel to the defendant and, when followed, prevent the defense attorney from fulfilling his or her professional obligations.
The SAMs implemented in the case of Sheik Abdel-Rahman effectively void his Sixth Amendment right to counsel by preventing his attorney from mounting an effective defense. Both attorney and client are deterred from speaking frankly and candidly for fear that their communication could be used against them by the prosecution. The ‘freedom of consultation theory’, as explained in McCormick on Evidence, suggests that the client cannot be expected to be candid without assurance that his confidences will not be used against him in a court of law.
[8] Inherent in this Sixth Amendment right to effective counsel – which has been interpreted as requiring the allowance of “free two-way communication between client and attorney”
[9] – is the attorney-client privilege. As the Supreme Court noted in Weatherford v. Bursey, “The Sixth Amendment’s assistance-of-counsel guarantee can be meaningfully implemented only if a criminal defendant knows that his communications with his attorney are private and that his lawful preparations for trial are secure against intrusion by the government, his adversary in the criminal proceeding.”
[10] [11]Nullifying the defendant’s attorney-client privilege – as occurs under the SAMs imposed on Sheik Abdel-Rahman – constitutes a violation of not only the Sixth, but also the First, Fourth, and Fifth Amendments. It has been established that inherent in the First Amendment’s provision allowing individuals to petition the government for redress of grievances is “a constitutional right of access to the courts”, and furthermore, that this access must be “meaningful access”.
[12] For this access to be meaningful and effective, the defendant must have legal representation, and furthermore, must be able to consult his lawyer in confidence. Our courts – most notably in Adams v Carlson and Rhem v McGrath - have consistently taken the position that the right to effective counsel cannot exist unless the attorney-client privilege is preserved: “effective protection of access to counsel requires that the traditional privacy of the lawyer-client relationship be implemented in the prison context”.
[13] Without confidentiality, counsel cannot be deemed effective, access cannot be deemed meaningful, and therefore, the First Amendment has been violated. The SAMs violations of the First and Sixth Amendments are most evident, and when considered collectively constitute a violation of the Fifth Amendment right to due process of law.
[14] The intersection of theses rights guaranteed under the First, Fifth, and Sixth Amendments – and violated by the SAMs imposed on Sheik Abdel-Rahman and his attorney – is clearly annunciated by the court in Coplon v. United States: “No conviction can stand, no matter how overwhelming the evidence of guilt, if the accused is denied the effective assistance of counsel, or any other element of due process of law without which he cannot be deprived of life or liberty.”
[15]Whether the imposition of the SAMs on Abdel-Rahman constitutes a violation of the Fourth Amendment right against search and seizure is less certain. The government could contend that Abdel-Rahman – as an inmate - had no right to a “reasonable expectation of privacy”
[16],however, such an argument would inherently suggest that inmates have no reasonable expectation to privacy with their counsel, which is certainly not a position affirmed by the court. Even after Hudson v Palmer, the courts refused to provide prison and government officials with blanket authority to deny prisoners privacy rights, contending that, “The door on prisoner's rights against unreasonable searches has not been slammed shut and locked. We take seriously the Court's statement that no iron curtain separates prisoners from the Constitution, and that the loss of such rights is occasioned only by the legitimate needs of institutional security”.
[17] A grey area, however, still remains with respect to what constitutes a valid security interest - such a concept necessarily remains nebulous and cannot be easily defined – and how we must balance fundamental constitutional liberties with that interest. What is clear, however, is that our judiciary has adamantly maintained that prisoners have a legitimate claim to certain privacy rights, including attorney-client privilege.
With respect to challenging her prosecution and conviction on constitutional grounds, the government has blatantly argued that Stewart has no legitimate recourse. In the opinion and order for United States v Sattar et al, Judge Koeltl cites Dennis v United States, affirming that Stewart cannot challenge the constitutionality of a law that she purposefully violated, and that the courts have “repeatedly refused to hear attacks on statutes from those accused of deliberately violating the statutes by fraud and deceit”.
[18] At issue, in the eyes of the prosecution, was not the constitutionality of the SAMs, but Stewart’s failure to honor her written affirmations to follow those measures. Perhaps Stewart could have refused to sign the affirmations, but it is likely that had she taken such action, she would have been denied any access to her client.
The imposition of SAMs on defendants and inmates provides the prosecution with an undeniable advantage, and enmeshes them in a dubious conflict of interest: the Attorney General functions as the sole author of the revised SAMs; the author of any specific SAMs imposed on an individual and his attorney; the chief defender of the legality of the SAMs; the recipient of any ‘confidential’ information that results from the enactment of the SAMs; and the prosecutor who makes use of this confidential information. Clearly, in such a situation – where the adversary maintains an overwhelming advantage - it is particularly necessary for the defendant to have access to an attorney who will serve as a zealous advocate for his best interests. It can be argued that Stewart violated the SAMs out of necessity: she was faced with the ethical conundrum of either adhering to the SAMs and thereby ignoring her professional responsibility as a defense attorney, or, breaking the law, in an effort to the protect the best interests of her client. The American Bar Association Model Rules of Professional Conduct, while not legally binding, provide guidance regarding the professional and ethical responsibilities of attorneys. According to these rules, Stewart was obligated to serve as a “zealous advocate” for Abdel-Rahman, and was cautioned that “preserving client confidences ordinarily serves the public interest”. The Model Rules recognize that lawyers are frequently beset by conflicting responsibilities: it is their duty both to serve the best interests of their client, and to act within the framework established by American law.
While Stewart can – and did - certainly argue that it was her professional obligation to protect confidential conversations, and take actions that would best serve the interests of her client, the true crux of the case is a question of where advocacy stops, and something entirely different begins. On multiple occasions, Stewart facilitated communication between Abdel-Rahman and Sattar (his alleged connection to the Islamic Group) or Yoursy (the translator). In certain instances, Stewart facilitated this exchange of information between Abdel-Rahman and his followers, either by concealing these parties’ prison-house conversations about Egypt and the Islamic Group, or, by delivering messages directly from Abdel-Rahman to the media. At times, it could be argued that this exchange was relevant to Stewart’s legal advocacy for Abdel-Rahman. For example, the indictment
[19] alleged that Stewart aided Mohammed Yoursy in relaying information to Abdel-Rahman about recent kidnappings by the Abu Sayyaf terrorist group in the Philippines: this information was pertinent because, immediately following the kidnappings, Abu Sayyaf had demanded America release Abdel-Rahman. The conversation later turned to the current state of affairs in Egypt, at which point Stewart made the statement that she believed Abdel-Rahman could be freed if the government in Egypt were changed.
[20] Such discussion relates to Abdel-Rahman’s status as a prisoner and the political conditions in Southeast Asia and the Middle East that might affect the terms of his incarceration, or, result in his release. The indictment – illogically – cited this as an example of Stewart violating her agreement to communicate with Abdel-Rahman only “concerning legal matters”
[21], when it was evident that this communication was pertinent to Abdel-Rahman’s legal status, and should have fallen under the umbrella of protection provided by the attorney-client privilege. Conversely, several other instances of communication involving Stewart, her client, and the aforementioned parties were entirely irrelevant to Abdel-Rahman’s “legal matters”. The most famous – and perhaps most clearly unprofessional – action taken by Stewart in violation of the SAMs was her June 14th, 2000 release of a statement to the press wherein she relayed Abdel-Rahman’s desire to withdraw his support from the Islamic Group’s cease fire with the Egyptian government.
[22] According to the indictment, Stewart clearly knew that she had over-stepped her professional bounds – and was now acting not as a zealous advocate, but rather, in a capacity not in accord with her professional responsibilities as a defense attorney – because on the day following the release of the aforementioned statement, she engaged in a telephone call where she expressed concern that she would not be able to “hide” this action from the United States Attorney’s office.
[23] Clearly, there is a difference between discussing an attorney and client discussing global political conditions that may result in changes to the client’s legal status, and an attorney issuing a press release for her client, directed toward controlling the activities of a terrorist organization. While the imposition of the SAMs may have been unconstitutional at all times, and Stewart’s actions may have been worthy of the title ‘zealous advocacy’ in some instances, it is unarguable that Stewart took actions, on numerous occasions, that both violated the SAMs which she agreed to follow, and had no relevance to her defense of and legal advocacy for Abdel-Rahman. While we must remain cognizant of the unconstitutionality of the SAMs, it is pertinent to note that by the time Stewart’s violation of the SAMs occurred, Abdel-Rahman had already been tried, convicted, sentenced to life imprisonment, and virtually exhausted his appeals process (with the Supreme Court refusing to hear his case in January of 2000). It was, therefore, much more difficult for Stewart to present her actions as ones taken solely in defense of her client.
Other cases involving SAMs-restricted defendants who have been accused or convicted of terrorism could prove instructive with respect to how defense attorneys must deal with the threat of being prosecuted for defending those who we despise. One such case where defense attorneys were able to escape the unconstitutional restrictions imposed by the SAMs was that of United States v. Richard Reid. Some impositions of the SAMs are unconstitutional, and if brought under heavy scrutiny, can possibly be waived or abandoned. Even conservative Judge William Young, who presided in the case of convicted shoe-bomber Richard Reid, and utilized the reading of the verdict as a moment to espouse moralizing, Bush-like rhetoric about how terrorists “hate us for our freedom” and would be hunted down and brought to justice
[24], defended Reid’s right to “reasonable access” to his attorney, public defender Owen Walker. Judge Young admonished the federal government for moving Reid and denying him access to his lawyer in March of 2002 following Walker’s refusal to sign a specific SAM. Young ruled that the government’s movement of Reid – without informing his attorney – and its prevention of attorney/client communications were inappropriate. Young, however, explicitly stated that his decision was discretionary, not constitutional, contending, that “. . . after considerable reflection, this Court (in exercise of its discretion and not as a matter of Sixth Amendment constitutional interpretation), has determined not to require an affirmation from Owen Walker, Esq., Tamar Brickhead, Esq., and Elizabeth Prevett, Esq.”
[25], all members of Reid’s defense team. Though Judge Young’s aforementioned remarks explicitly connoted his position as one taken as a matter of discretion rather than constitutional necessity, he proceeded – in the same statement – to engage in a lengthy discussion of the essential function of the defense attorney in America’s adversarial legal system, bluntly stating that the “zealous advocate is a model for all who engage in litigation” and then advanced a contention that buttresses Lynne Stewart’s defense, pronouncing that “the affirmation”, or the lawyer’s agreement to abide by the dictates of the SAMs, “impermissibly intrudes on the proper role of defense counsel” who are “zealously to defend Reid to the best of their professional skill without the necessity of affirming their bona fides to the government”.
[26] Quite literally, Judge Young offered a defense of Lynne Stewart, specifically invoking her case, and cautioning that “serious constitutional issues might arise” in the Stewart trial if Attorney General Ashcroft sought to indict Stewart for violation of a law that he both authored and imposed, an egregious error given our “constitutional bedrock that only Congress can enact federal criminal statutes”.
[27] Judge Young accepted Reid’s lawyers’ refusal to sign a SAM, but cautioned members of Reid’s defense not to repeat anything Reid said outside of the confines of defense team meetings. Violating these directions of may have placed one of Reid’s attorneys in contempt of court, however, it most certainly would not have resulted in the lawyers being indicted on grounds of providing material support to a terrorist organization and making false statements to the government. The lesson that defense attorneys must take away from the Reid case is that SAMs which restrict attorney-client communication in a fashion that is unconstitutional must immediately challenged or refused. It is arguable that such a refusal – depending on the philosophy of the presiding judge – may result in denial of access to one’s client, however, such a denial would only provide further grounds on which to challenge the constitutionality of the SAMs at the appellate level.
To many dissenters – often supporters of Ashcroft, the Bush Administration, and the Patriot Act – the prosecution of Lynne Stewart was a necessity to ensure the protection of American citizens from the evils of terrorism. Such individuals argue that Stewart’s communications with Abdel-Rahman were intended to facilitate terrorism, and as such, were no longer privileged, or, quite simply, that national security takes precedence over the sanctity of the attorney-client relationship. Many – on both sides – admit that the typical punishment dealt to attorneys for violating Bureau of Prisons rules is denial of access to the client, or, some minor administrative sanction, and all recognize that Stewart – who stands to receive up to 30 years in prison – is being punished much more severely for her actions. While progressives cringe at the obvious problems of constitutionality that arise within this specific case, and the government’s unusually relentless prosecution of Stewart for breaking an administrative rule, many conservatives are quick to argue that, “These are not usual times. After the threat of terrorism became a reality on September 11, 2001, it became necessary to invoke a larger punishment to deter attorney's who facilitate communications with terrorist organizations. In a time of war, the balance of national security and civil liberties is tested.”
[28] Continuously, we return to the central question of this balance, whether it can be preserved, and at what cost. In the Stewart case, no terrorist activity took place as a result of Stewart’s ‘illegal’ communications with Abdel-Rahman, though one could easily conceive of a scenario in which the Sheik’s followers - acting in accordance with his wishes communicated via Stewart through Reuters - engaged in terrorist activity against rival factions in Egypt. In order to support the government’s case in United States v. Sattar, one must follow the logic that Stewart’s actions, contributed to the threat of terrorism – albeit in Egypt – and constituted a legitimate threat to American security. According to such reasoning, Stewart was clearly conspiring against the government to aid a terrorist organization, and therefore, there exist no questions regarding civil liberties or constitutionality. Or, as was perhaps true with some members of the jury, one must allow emotions to trump legality and logic, and therefore support national security policies that blatantly infringe on constitutional rights, so long as those policies promise to keep us safe. After all, we must remember, Stewart was convicted by a New York City jury, only blocks from the hallowed ground where the twin towers once stood. While their decision certainly weighed the law and the evidence against Stewart, it must be viewed – at least partially – as a product of fear of terrorism, the awesome power conferred to the lexicon of “terrorism”, and a conservative ideology that places national security as the most primal of all American interests. Where one places his greater interest – in national security or individual liberties – is a most fundamental factor in how one views the prosecution, trial, and conviction of Lynne Stewart.
[1] United States v. Sattar et al. 272 F. Supp. 2d 348; 2003 U.S. Dist. LEXIS 12531. Decision by John Koeltl.
[2] “Over the Line”. Editorial. Washington Post. Pg. A 28. February 18, 2005.
[3] National Lawyers Guild Condemns Verdict in Lynne Stewart Trial. Official Press Release. February 10, 2005.
[4] “Sheik's U.S. Lawyer Convicted Of Aiding Terrorist Activity” by Michael Powell and Michelle Garcia. The Washington Post. Washington, D.C.: Feb 11, 2005. pg. A.01
[5] Georgetown Journal of Legal Ethics, Summer 2004....
[6] Georgetown Journal of Legal Ethics, Summer 2004....
[7] pg 8. Harvard Black Letter Law Journal. Vol. 18, 2002 [September 2002].
[8] Fordham Law Review
[9] United States v. Levy, 577f 2D 200, 209 (3RD Cir 1978)
[10] Weatherford v. Bursey, 429 U.S. 545, 554 n.4 (1977)
[11] Fordham Law Review provided guidance for legal citations pertaining to attorney-client privilege & the Sixth Amendment.
[12] Bounds v. Smith, 430 U.S. 817 (1977). Majority Opinion by J. Marshall.
[13] Adams v. Carlson. 488 F.2d 619; (7th Cir. 1973). Majority opinion by Chief Justice Swygert.
[14] Coplon v. United States. See quotation that follows.
[15] Coplon v. United States. Majority opinion. Justice Miller.
[16] Inmates have no right to a reasonable expectation of privacy. See Hudson v. Palmer.
[17] Cohen v United States. 796 F.2d 20; 1986 U.S. App. LEXIS 26745. See also Cromwell v Dahlberg to support the contention that a prisoner retains some reasonable expectation of privacy while in prison.
[18] United States v Sattar et al. Opinion and order.
[19] Superceding Indictment. United States v Sattar et al.
[20] Superceding Indictment. United States v Sattar et al. Section j.
[21] Superceding Indictment. United States v Sattar et al. Section i
[22] Superceding Indictment. United States v Sattar et al. Section R
[23] Superceding Indictment. United States v Sattar et al. Section S.
[24] Transcript of Sentencing Verdict. Remarks by Judge William Young. January 30, 2003.
[25] United States v. Richard C. Reid. Memorandum and Order Concerning Particular SAMs and Revising Earlier Court Orders. Chief Justice William Young.
[26] United States v. Richard C. Reid. Memorandum on SAMs.
[27] United States v. Richard C. Reid. Memorandum on SAMs.
[28] Katherine Ruzenski . “Balancing Fundamental Civil Liberties And the Need for Increased Homeland Security: The Attorney-Client Privilege After September 11th” *Winter / Spring, 2005. 19 St. John's J.L. Comm. 467.
