Criminal representation: did Congress quietly make it a crime for lawyers to defend terror suspects?

• Author: Decker, Jarett

ON MAY 17, 2004, the left-wing lawyer Lynne Stewart will go on trial in New York for allegedly helping a convicted terrorist leader direct jihad operations from inside a federal prison.

Stewart has admitted in interviews since her indictment that in June 2000 she broke an agreement with the Justice Department and violated Bureau of Prisons restrictions to help her imprisoned client, the "blind sheikh" Omar Abdel Rahman, issue a press release to the Reuters news service recommending that his followers in the Islamic Group in Egypt abandon a two-year-old "cease-fire." The Islamic Group was responsible for the 1997 gun-and-knife massacre of 58 foreign tourists and four Egyptians at Luxor as well as other attacks.

Stewart claims that in issuing Abdel Rahman's press release, she did "nothing more than any other lawyer would ever do," helping her client communicate with the outside world and exercising her own right to free speech. She says she is being singled out for representing a reviled client.

Casual observers may be forgiven for dismissing the Stewart prosecution as an anomalous case of a reckless lawyer facing repercussions for irresponsible conduct, with no broader implications for the justice system. It's true that Lynne Stewart makes an implausible civil liberties heroine. She has expressed admiration for Abdel Rahman's decidedly illiberal vision of "positive social change," arguing that the radical Islamic revolution he seeks is "the only hope" for various oppressed peoples in the Middle East. She maintains that American criticism of the Taliban's treatment of women is a case of "the pot calling the kettle black" because of supposedly comparable discrimination against women here. And by her own admission, Stewart concluded for herself that the Bureau of Prison restrictions on Abdel Rahman's communications with the outside world were unreasonable and, instead of challenging the restrictions in court, deliberately helped the sheikh circumvent them.

Yet Stewart's prosecution has revealed a broad and troubling Justice Department strategy. This strategy goes far beyond the need to make sure lawyers abide by restrictions on prisoner communications--restrictions motivated by the legitimate security concerns that cases like this raise. For that purpose, it would be sufficient to criminalize attorney violations of the restrictions known as "special administrative measures" (SAMs), which have been used since the Clinton administration to prevent Abdel Rahman and other imprisoned terrorists from communicating (directly or indirectly) with their supporters on the outside. Instead, the Justice Department is pursuing a course that threatens the Sixth Amendment right to legal representation by exposing just about any attorney who represents a suspected terrorist to the risk of prosecution, thereby discouraging lawyers from taking such cases or, if they do, from representing their clients zealously.

The conduct for which Stewart was charged occurred before September 11 and before Congress passed the USA PATRIOT Act, a statute aimed at enhancing federal power to fight terrorism. Stewart could not be prosecuted under the PATRIOT Act because of the Constitution's Ex Post Facto Clause, which forbids the application of criminal laws to conduct that occurred before they were passed. That was a lucky break for Stewart, who is instead charged under a predecessor law with providing "personnel" to a terrorist group (by helping Abdel Rahman maintain his leadership role from prison) and with committing "fraud" and uttering "false statements" by promising to abide by the SAMS when she allegedly had no intention of doing so--a state of mind that may be difficult to prove.

Had the timing of her actions been different, Stewart could have been charged with violating a little-noticed provision of the PATRIOT Act that makes it a crime to provide "expert advice or assistance" to a terrorist group. Although the Justice Department cannot use that provision against Stewart--and a California federal judge recently limited its reach--the department's court submissions in her case take the position that legal representation of alleged terrorists is a crime under the PATRIOT Act if the lawyer can be portrayed as acting under "the direction and control" of a foreign terrorist organization. The law does not require any intent to further illegal activities, and the Justice Department contends that there is no exception for "good faith" or "bona fide" legal representation.

All lawyers work "under the direction and control" of their clients, within the limits of the rules of ethics. If the Justice Department's interpretation of the...