INTERVIEWS | A criminal defense lawyer gets it from the Justice Dept.

Lawyer Lynne Stewart and her client, Sheik Abdel-Rahman

Criminal Lawyer: The Government's Attack on Attorney-Client Privilege
Criminal Defense Weekly. April 30, 2002

By Jordan Elgrably

A criminal defense attorney for 26 years, Lynne Stewart was indicted by John Ashcroft on April 9, 2002, on charges of "conspiracy to aid a terrorist organization" and "aiding a terrorist organization." Her crime is representing a Muslim sheik with suspected links to terrorists.

Would you address the Sixth Amendment concerns that your case raises?

The overt Sixth Amendment issue is of course the attorney-client privilege; that is, what can be said to one's lawyer in private. That right is really put on trial here, because the Government is now saying that if they make the determination that it's within their purview, they can listen in on the conversation, if it touches on national security. For that reason it does seem as if they did wire and videotape, we believe, attorney-client conversations taking place at a prison visiting room, [conversations with my client, Sheik Abdel-Rahman].

Of course the second Sixth Amendment issue is the right to counsel itself, because the chilling effect this has on lawyers to be open and candid with their clients and discuss cases and discuss almost any matter with a client, certainly creates a chilling effect. When I was asked recently by a fellow doing a documentary, "couldn't this happen to anyone? Couldn't anyone be hauled in by the Government at any time?" I said I think that's one half of it; the other half is If you're hauled in you won't have a lawyer to call upon, because lawyers will be too frightened to take your case.

Do you believe that because of your case there are defense attorneys even now who are saying "no" to taking on cases of defendants of Muslim or Middle Eastern background?

I think so, because under the terms of my case, which are "conspiracy to aid a terrorist organization," and "aiding a terrorist organization," the sole act that I am accused of is making a press release. One could easily see how if one were to take on the case of one of the 1200 nameless immigrants and that imigrant turned out to be the head of some clique or clan or whatever, that that person's attorney would then also be subject to indictment, for "aiding a terrorist organization," by getting its leader, or member, out of jail. This was a point that was made by Bill Goodman of the Center for Constitutional Rights in New York, because they had actually filed suit on behalf of detained immigrants.

This goes to what some Ashcroft critics say is a ripple effect; that is, that some relatively benign organizations, such as Greenpeace, could in the end be labeled as "terrorist" ones. How likely do you think that might be?

Well, I think the Government has actually done some of that with regard to some of the Middle Eastern, Muslim and Palestinian relief organizations; they have been added to the Government's "terrorist list." And of course, they are fighting the designation, but it's very hard to prove a negative—"I'm not what you say I am!" But it indeed has happened. In the current climate they are the most likely targets, but someone remarked to me the other day if there was another attack on the United States, it's not difficult to foresee government agencies picking up a much broader spectrum of I guess what would be described as the dissent in this country, and basically charging them with this type of crime.

For a lot of us what has been so disturbing about this is that there has been a great deal of self-censorship after 9/11, so that people are really afraid to ask, "what is our responsibility in incurring these peoples' wrath?"

Until that question is asked and dealt with in a real way, the possibilities are endless as to what may next happen.

What about the timing of your arrest? Wasn't Ashcroft engaging in a game of smoke and mirrors with the public?

I'm really going to have check this out, what was it covering up for then. I always had a sense that their hoopla surrounding the "war on terrorism" had momentarily slowed down. They had all of this enormous power to deal with things, and yet nobody was under arrest—there was only John Walker Lindh, who was caught fighting in Afghanistan, and me at that point. So I always felt they needed to blow up this balloon again, to say, "See how much we're fighting terrorism. Give us all your support." And the fact that he went on the Letterman show the night of my arrest and cheer-led that crowd into giving him a round of applause said to me that they wanted to pump up the public perception aspect of things. I don't know if Lindh's trial was about to begin, or what was happening. As a general rule, I think all of the "terrorist" hoopla really serves to cover up the tremendous corporate involvement in what is I guess called the crime wave. There hasn't been one major corporation that can pass real scrutiny, it seems to me.

This is just supposition on my part, but you don't sound terribly worried right now, so I wonder: Where is the Government's case going, and how are you mounting a defense?

First of all, we have so much material to work through that I would say we're probably not going to go to trial for at least a year. And the Government has a shorter date, but they're not factoring in the fact that there are some 100,000 pages of documents in Arabic, and just to even translate them will take six months, probably, if not longer. They'll translate bits and pieces, but we have our own translators because we want to see complete products, of course. The other thing—and of course this is an irony, isn't it?—I have a wonderful legal team, fighting for me and working for me: Michael Tigar, based in Washington, D.C. at American University, and Steven Sommerstein, so to some degree I'm doing the defendant thing and saying, my lawyers will take care of it. But on the other hand, I have received tremendous support everywhere I've gone. I admit that to some degree, it's been preaching to the choir, but somehow the choir hasn't sung a lot lately, we don't have a whole lot of movement out there. So that is also very encouraging.

Is the American Bar Association behind you on this one?

They're not voting a resolution, I don't think. I'm not exactly their cup of tea, I imagine. But certainly in the weeks following my arrest, they ran things on the ABA web site, and they had call-ins, they had discussions about it. And I think their interest is genuine for there is probably no group of lawyers more concerned about attorney-client privilege than corporate lawyers, for whom the state of the law with regard to the corporate privilege is indeed very thin at this point, and close to the breaking point. I think they'd like to shore up that particular aspect of things.

So there are a lot of lawyers who would like to see you be completely exonerated, because this could be a watershed.

Exactly, it is a watershed, and I think they see it as an attempt by the Government to clamp down on [due process]. There is no question that Bush [et al] does not care much for defense lawyers, or lawyers of any kind for that matter. But particularly those who are breaking strides with what he sees as the great American push forward. So that's part of it. The other part of it is that it would change the entire dimension of how we defend people, if the attorney-client privilege were able to be usurped by the Government, on an order from Ashcroft; if in other words the Attorney General could just sign off and say, "I want you to listen in on this personal conversation." It would just change the practice as we know it.

And while this is far from a perfect paradigm (that's a redundancy) of a criminal justice system, still in all one of the better things about it is the attorney-client privilege, and the fact that someone can be absolutely candid and forthright with their lawyer. As far as the rest of it, it's like having cancer. You have a good day, then you have a bad day. You can always wake up at three o'clock in the morning thinking, "this could kill me." Facing 40 years [in prison], I have moments of course when I'm not so upbeat and aggressive about the case.

Tell me in the nitty-gritty here: how much of a case do they really have? I mean, you're not really worried about what the Government can do to you?

I think that the United States Government has unlimited resources; you can never take a criminal case they're litigating lightly, because they are able to just dredge up the slightest little detail and make it into something that it probably is not. On the other hand I believe, myself, that I am completely innocent of these charges. I have been a criminal defense lawyer for 26 years; I know there is a line, and I know I never crossed that line. So for that reason I do feel very positive about it, and I do feel that it's a case that we can win.
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Lynne Stewart is currently at liberty on a personal recognizance bond in the amount of $500,000, which her three children (two lawyers and an M.D.) signed off on, "asserting that they would be held responsible should I abscond into the great unknown."

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