When the Justice Department indicted defense attorney Lynne Stewart in April on charges she helped client Sheik Omar Abdel Rahman, the Muslim cleric convicted of masterminding the 1993 World Trade Center bombing, communicate with his followers, civil libertarians and attorneys of all political stripes saw it as one more example of Attorney General John Ashcroft's determination to erode attorney-client privilege.
Now documents obtained by the defense in the Stewart case show that the government was secretly taping meetings and phone calls between Stewart and Rahman and others for over two years. While the government obtained a court order authorizing some surveillance of their meetings in 1998, the scope of what was monitored seems to extend beyond what is commonly authorized. And at a hearing July 19, prosecutors refused to say whether they are currently taping Stewart's conversations with her own attorney, Michael Tigar.
The indictment of Stewart has alarmed defense attorneys. "We take this as a very serious threat to the Sixth Amendment right to a fair trial," says Jim Harrington, an attorney with the New York State Association of Criminal Defense Lawyers. "Since the founding of this country, one of the fundamental rights our people have had is the right to a lawyer you can confide in. In this situation, you have the government interfering with that right." The association, he said, has already filed a friend-of-the-court brief objecting to the government's seizure of paper records and computer files from Stewart's office.
"This is a case that puts the attorney-client privilege in great jeopardy," adds Martin Adelman, a defense attorney and spokesperson for the New York State Bar Association.
Stewart, currently free on $500,000 bail, is formally charged with "providing material support and resources to the Egyptian-based terrorist organization known as the Islamic Group." The government alleges that Stewart, in a conspiracy with Rahman's Arabic translator, Mohammed Yousry (Rahman speaks little or no English; Stewart no Arabic), passed messages to and from the sheik, who was being held virtually incommunicado in his federal prison cell.
Specifically, the government's indictment charges that Stewart, in violation of a prison order (to which she had signed her agreement) barring any communications between the sheik and the outside world, passed along a message from him to his followers saying that a cease-fire in Egypt announced by his terrorist organization, the Islamic Group, should be terminated.
Stewart did make that decision public, in a press conference June 14, 2000. She says she did it in response to a reporter's inquiry. Though she says she now thinks it was "a mistake" to go public with the information, she also contends that releasing the information was in the public interest, since the public needed to know that the Islamic Group, which had masterminded a bloody massacre in Luxor, Egypt, that killed 58 tourists and four guards in 1997, was back in action.
As her attorney, Tigar, puts it, "The statement was not a punishable incitement and was certainly protected speech under the Supreme Court's current clear-and-present- danger test."
Bar association attorney Adelman puts the matter more bluntly, saying, "Without getting to the moral issues, telling Egyptians to kill Egyptians is not an American crime."
The other charges against Stewart are that she attempted to distract guards while her client and translator discussed Islamic Group strategy, and that she engaged in an effort to falsely claim that Rahman was being deprived of medical care for his diabetes condition. The attorney pled not guilty to all the charges.
Stewart is a longtime radical activist known for defending politically unpopular clients, from Black Panthers to Mafia leaders. Her flair for inflammatory rhetoric is unlikely to endear her to a New York jury pool still reeling from the attack on the World Trade Center less than a year ago. In a 1995 interview, for example, she told the New York Times that she believes violence is sometimes necessary to correct American injustices. "I don't believe in anarchistic violence, but in directed violence," she told the Times. "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." There is no indication, however, that she has ever been involved with terrorist organizations or activities, except in her role as defense attorney.
Tigar claims that Stewart was deliberately targeted by Ashcroft to have a chilling effect on the defense bar during the war on terror. Although secret monitoring of Stewart's conversations with Sheik Rahman began back in 1998 under a court order obtained by the Justice Department during the Clinton administration, certainly Ashcroft made a spectacle of her arrest and the search of her office. The raid and arrest were timed to coincide with the attorney general's April 9 visit to the site of the Sept. 11 attack in New York, and in a prepared statement, Ashcroft depicted it as another front in the terror war.
Stewart also charges that the warrant for her arrest and the search of her home and office, which was supposed to be sealed, was deliberately left unsealed, and reporters were tipped off in advance so that TV cameras were on hand. "There is wrongdoing here," Tigar states in brief filed with the court on Monday. (The bizarre nature of this case is demonstrated by the brief, in which the defense responds to a declaration filed by the U.S. attorney's office regarding the warrant, but can't actually cite the declaration, since it, too, is sealed.)
U.S. Attorney Joseph Bianco earlier told the court the failure to seal the warrant had been an oversight.
That warrant was not the only government leak in a case where every piece of evidence is supposed to be sealed at the request of the government on grounds of national security. At the time of the indictment, some snippets of taped conversations involving Stewart and her client were leaked to the press. In those, Rahman is heard apparently referring to his attorney and her Arabic translator as "trained doves" who are passing messages between him and his supporters outside of the prison, and Stewart allegedly made jokes about her role, saying she should "get an award" for her acting. Defense attorneys note that allegedly deflecting the guards' attention, and falsely claiming that a client was being medically mistreated by the prison, while perhaps ethically wrong, would not in themselves be crimes, but could be used by the government as evidence of conspiracy.
For years predating the Bush administration's war on terror, federal prison authorities have had the legal right to monitor certain prisoners' jailhouse conversations with their attorneys, but only after notifying the prisoner and the attorney of that activity, or after having obtained a court order permitting secret monitoring. But the USA PATRIOT Act (the acronym stands for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism"), which was passed by Congress last fall in the wake of the 9/11 attacks, has expanded that authority, both in the jailhouse and beyond prison walls. Under the terms of the act, prosecutors are permitted, with judicial approval, to covertly monitor lawyer-client conversations anywhere. In addition, the act allows the attorney general to authorize such monitoring without judicial approval, though only after notifying attorneys and their clients that their conversations will be monitored.
Coincidentally, the day before Stewart's arrest the New York Bar Association issued a statement condemning the PATRIOT Act's new monitoring provisions, saying they undermined the right to counsel. In any event, the taping of Stewart's prison conversations with her client -- which might be legal under the Justice Department's new post-9/11 rules -- predate that new authority by a year or more. Stewart's attorney says that although the government apparently had a warrant to monitor Rahman's conversations, it is not clear which of Stewart's conversations were monitored under court order and which were not. The scope of the monitoring certainly seemed to go beyond jailhouse conversations between the lawyer and client. The government so far has refused to provide any information on its monitoring in the case.
It also appears that besides having her jailhouse conversations with her client monitored, Stewart was spied on and monitored outside of the prison, and that this monitoring may be continuing to include her conversations with her own attorney, Michael Tigar.
The government's gag on Sheik Rahman -- technically a Special Administrative Measure imposed by the federal Bureau of Prisons -- is itself highly unusual. Even John Gotti, the mob boss who died recently in prison, was not barred from communicating, though he clearly was staying in touch with his Mafia cronies on the outside.
But the government's aggressive monitoring of Rahman's conversations with Stewart, and her subsequent indictment, are what has triggered the legal hue and cry about the case.
"No one contests that the government has a right to monitor and indict a lawyer who is involved in something like helping a client plan a bank heist," says the New York State ABA's Adelman. "But it's not clear that Stewart did anything like that. She doesn't even speak Arabic, so it's not clear she even knew what her client was saying."
At a July 19 hearing in federal court in Manhattan, defense attorney Tigar blasted the government's violation of attorney-client confidentiality. "In my 35 years working as an attorney I have never been arrested or jailed for anything," he said. "Yet I don't know whether the government is secretly monitoring my conversations with my client."
Tigar asked the judge, John G. Koeltl, to order the government to notify him if they were conducting such surveillance. He also requested that any evidence derived from the monitoring of Stewart's conversations, either with him or with her client, Rahman, be suppressed, and that if the monitoring jeopardized Stewart's right to a fair trial, that the charges be dismissed outright. "You have the power to tell the executive branch to come clean to your honor," he told the court.
The judge took the issue under advisement without issuing an immediate ruling. Earlier this month Stewart succeeded in getting Koeltl to appoint a special court master to examine her files before releasing any to the government.
U.S. Attorney Bianco did tell the judge that no one was monitoring the prison conversations between Stewart's co-defendant Ahmed Abdel Sattar and his attorneys. Sattar, a postal worker currently in prison without bail, is described in the indictment as an active Islamic Group leader and surrogate for Rahman. Sattar is a codefendant with Stewart and Yousry. (Under the terms of the Bureau of Prison's Special Administrative Measures regulations, Bianco would have had to announce such monitoring of prison conversations in advance.) But Bianco said he was unwilling to state whether Stewart and her attorney, Tigar, were under surveillance and monitoring. He argued that for surveillance to be effective it had to be done covertly, and insisted that judicial review of wiretaps provided adequate safeguards to protect a defendant's rights.
"We are operating on the assumption" that conversations are monitored, says Tigar, who also handled the murder case of Terry Nichols, who had been charged as an accomplice of Oklahoma City bomber Timothy McVeigh.
Federal courts have traditionally taken a dim view of police spying on lawyers and their clients. Back in 1996, a federal court in Pennsylvania, after hearing evidence that then Gov. Tom Ridge's office had obtained privileged mail communications between death-row inmate Mumia Abu-Jamal and his attorneys, which had been intercepted and photocopied by the death-row prison's warden, ruled that the prisoner had been "actually injured" by the action, which was condemned and ordered halted. (Ridge is now head of the Office of Homeland Security.)
Meanwhile, the Justice Department has been making a number of controversial attempts to interfere with the right to counsel of terror suspects. John Walker Lindh, the former Taliban fighter who recently reached a plea-bargained guilty plea, was prevented from seeing a lawyer for the weeks during which he was in military custody in Afghanistan. The Justice Department is currently attempting to have the courts remove the public defender who is representing Yaser Esam Hamdi, a second American detained on terrorism charges who is being held in military custody in Virginia. A third American, Abdullah al Muhajir -- aka Jose Padilla -- has been denied access to an attorney altogether, though he is being held without any charge in a military brig in South Carolina.
The American Bar Association strongly lobbied last fall against a provision in the PATRIOT Act giving the attorney general the authority, without a court order or a showing of probable cause, to order monitoring of attorney-client conversations. ABA president Bob Hirshon says the Stewart case demonstrates what's wrong with that act. "This arrest was trumpeted by the Justice Department as the first test of the new regulation, but in fact, the indictment seems to be based on monitoring that was done before September, presumably under the old rules and with a court order. If that's the case, it shows that there was no need to give the attorney general the power to order monitoring without a court order."
He adds, "The new law is counterproductive. If you tell people you're going to be monitoring their conversations, every lawyer is now going to tell his client that he better assume he's being monitored. Not doing that would be legal malpractice."
Adelman contends that none of the specific charges against Stewart "in and of themselves" appear to be criminal violations. In Stewart's case, he said, the government will have to prove that a conspiracy existed, and that Stewart's actions were a conscious effort to further that conspiracy. But he concedes that the case has sparked debate within the association. "A lot of lawyers say nothing she did was illegal, but others say that there is a war going on and what she did was wrong." he says.
Stewart's case is not expected to go to trial for some time. The judge has acknowledged that faced with having to go over so much government evidence, most of it in Arabic, the defense will need a long time to prepare its defense.
Meanwhile, Stewart and her attorney Tigar are being cautious. "We're not stupid people," says Stewart. "When we have something important to talk about, we won't do it on the phone or in an office. We will go out for a hamburger or something."