Wednesday, February 16, 2005

Elaine Cassel: Now, however, the First and Sixth Amendments have been gutted

We highlighted Elaine Cassel's "The Lynne Stewart Verdict Stretching the Definition of 'Terrorism' to New Limits" yesterday. Kara asked us to note it again and to highlight this section:

The ABA's Code of Professional Conduct demands zealousness of lawyers. It also mandates that lawyers make their services available to unpopular causes. Stewart was fulfilling both duties by agreeing to serve as court-appointed attorney for Rahman, the defense argued.
Stewart admitted she violated the SAMs, but she was duty-bound to do so, she said. What self-respecting defense attorney, she contended, would let a government restriction stand in the way of the confidential attorney-client relationship?
Through helping with the news release, Tigar maintained, Stewart, as his lawyer, was trying to keep her client's case before the public and the government, and ultimately hoping to gain his release to Egypt.
The government countered, and the jury agreed, that when she so spoke, and aided her co-defendants in speaking, she was no longer acting as a lawyer. She was aiding and abetting terrorism.
Prior to September 11, 2001, many attorneys might have sided with Stewart. They would certainly have seen a blatant Sixth Amendment violation in both the SAMs and the eavesdropping regulations - and possibly seen First Amendment violations when it came to the SAMs. And they might also have agreed that to honor the right to counsel, an attorney ought to try to resurrect the traditional attorney-client relationship despite these unconstitutional constraints.
Now, however, the First and Sixth Amendments have been gutted--at least in terms of the attorney-client relationship. Indeed, as I argued in the first article I wrote about Stewart, the government seems to be conducting an all-out assault on the right to counsel.
Defense attorneys who represent alleged terrorists - or even detainees who are merely suspected of some connection to terrorism -- now know that the government may listen in on their attorney-client communications. They also know that this eavesdropping may give rise to evidence that may be used in their own prosecution for terrorism if they cross the imaginary line drawn by the government.
How can these attorneys be zealous advocates with this government-inspired fear overshadowing their every word?
If the attorneys are prosecuted, they can expect, at trial, to be conflated with their clients - just as Stewart was. The prosecution showed an old tape of Osama bin Laden promising revenge if Rahman were not released. In a courtroom only a short distance from Ground Zero, the tape must have meant a great deal. But it related to Rahman, not Stewart. Though Rahman may be a Bin Laden confederate, that does not mean his attorney is.
The larger issue here is not whether Stewart "stepped over the line" from lawyer to criminal co-conspirator, as the jury verdict implies. Nor is it whether terrorism fears caused the jury to reach an irrational verdict - as may well be the case. The larger issue is that those who face terrorism-related charges will now be entitled to a government-crippled defense.

[This article is from CounterPunch. There are many good articles to be read there including Alexander Cockburn's commentaries that appear in the print edition of The Nation.]