The conviction of Lynne Stewart and the uncertain future of the right to defend.

• Author: Birckhead, Tamar R.

ABSTRACT

At the heart of the attorney-client relationship lies the ability to communicate freely and without fear that someone is listening. Since 9/11, the government has passed regulations, such as the Special Administrative Measures ("SAMs"), that by virtue of their broad scope and lack of procedural safeguards have endangered this privilege, particularly for incarcerated criminal defendants. The recent conviction of attorney Lynne Stewart for providing material support to a foreign terrorist organization has brought this issue to the forefront, as the prosecution relied upon government-monitored conversations between Stewart and her client, convicted terrorist Sheik Abdel Rahman, to prove its case against her. This Article argues that post-9/11 administrative mechanisms such as the SAMs represent a classic case of governmental overreaching, one that is in line with a long history of compromising civil liberties and limiting access to the courts during periods of war and national anxiety. It analyzes the effects of such mechanisms upon criminal defendants and those who represent them, and uses Lynne Stewart's conviction as a lens through which to examine the history that brought us to this point as well as serving as a concrete example of what can, and does, happen when rules regulating the bounds of proper legal advocacy are violated. It concludes by demonstrating that although effective defense strategies may temper the impact of certain aspects of the SAMs, the regulations' very existence has the potential to "chill" the attorney-client relationship and thereby threaten the Sixth Amendment--a reality the courts have yet to acknowledge.

INTRODUCTION

At the heart of the attorney-client relationship lies the ability to communicate freely and candidly, without fear that someone is listening. In criminal defense, this critical tenet--expressed in evidentiary rules as the attorney-client privilege-is the sine qua non for achieving effective, meaningful representation. Clients, who may differ from their lawyers in terms of culture, experience, and background, are reluctant to share information under the best of circumstances. Yet, without protected communication, the likelihood that trust will develop, and that such trust will lead to a genuine meeting of the minds between lawyer and client, is low--if not nonexistent. (1)

Since 9/11, the government has adopted administrative regulations that have endangered the attorney-client privilege, particularly for incarcerated criminal defendants. The principal regulation of consequence here is a Bureau of Prisons ("BOP") rule referred to as the "Special Administrative Measures" ("SAMs"), which allows for restrictions to be placed upon an inmate's ability to communicate with the outside world, restrictions to which the inmate's attorney can also be required to adhere. (2) Among the provisions is one that allows the BOP to monitor attorney-client communications when there is "reasonable suspicion" to believe that the inmate may use such communications to "further or facilitate acts of terrorism." (3) The terms used in the drafting of the SAMs are broad and not well-defined, and the provision itself--which allows for the monitoring of all written, oral and telephonic communications between lawyers and their incarcerated clients--fails to provide for meaningful judicial oversight. (4)

Against this backdrop, in February 2005, a federal jury in New York City convicted attorney Lynne Stewart in a case that highlights the stark intersection between the defendant's right to unfettered communication with his lawyer and the ever-increasing reach of the federal government post-9/11. (5) The charges against Stewart emanated from her decade-long representation of Sheikh Omar Abdel Rahman, an Egyptian Muslim cleric serving a life plus 65-year sentence for conspiracy to bomb the World Trade Center and other New York landmarks as well as soliciting crimes of violence against Egyptian President Hosni Mubarak and the U.S. military. (6) After a seven-month trial, Stewart--along with two co-defendants (7)--was convicted of all charges, from conspiring to provide and actually providing "material support" to Rahman's terrorist organization, the Islamic Group ("IG"), to conspiring to defraud the United States and making false statements. (8)

The evidence at the core of the government's case came from Stewart's own words, words spoken in confidence to her client. Her conversations during a series of prison visits with Rahman had been recorded by the government, and the tapes of those visits formed the basis for the arguments advanced against her at trial. (9) As a result, while the central facts at trial were not in dispute, the meaning and significance of them was, with the principal inquiry focused upon the following: By her actions and her words, did Lynne Stewart intend to provide material support to Rahman and the IG? Did she, in fact, provide material support? And, did she knowingly intend to violate the SAMs?

While Lynne Stewart's conviction raises many questions that are specific to the woman and to the circumstances surrounding her prosecution, it also implicates much broader developments and trends. Among those is the matter of how did we get here or, rather, how did our laws develop to the point at which we now can, through measures such as the SAMs, monitor attorney-client conversations without clear legal standards or sufficient judicial oversight? An attempt to answer this question requires an examination of the national legacy of placing unprecedented limits on civil liberties during times of war. It requires a look at recent legislation that effectuated "court-stripping, " whereby Congress passed laws that diminish the rights of groups on society's margins without a mechanism for judicial review. It also requires an analysis of the history and implementation of the SAMs, an examination of the grounds for contesting them, and an exploration of how the federal courts have handled cases in which the SAMs have been challenged.

In looking ahead, it is useful to try to divine what the future holds, both for the criminal defense attorney and for the criminal defendant. Must Stewart's conviction lead to the "chilling" of the defense bar? Must it result in widespread reluctance to represent the most unpopular defendants, those on the fringes of society? Must it mean that the attorney-client privilege is a thing of the past and that the chastening and ultimate silencing of defenders is inevitable? Or, might it serve as an object lesson for defense lawyers--a blueprint of what not to do, and by its very nature, a guide on how to advocate rigorously and aggressively for one's client without running afoul of the law? These questions provide an opportunity to analyze specific cases in which defense attorneys have, indeed, rendered effective assistance of counsel against the backdrop of the government's unwavering assault on those who promulgate terror.

This Article argues that post-9/11 administrative mechanisms such as the SAMs represent a classic case of U.S. governmental overreaching, one that is in line with a long history of compromising civil liberties and limiting access to the courts during periods of war and national turmoil. It analyzes the impact of such mechanisms upon criminal defendants and those who represent them, and uses Lynne Stewart's criminal conviction as a lens through which to examine the historical development to date as well as serving as a concrete example of what can--and does--happen when rules regulating the bounds of proper legal advocacy are violated. It concludes by demonstrating that although effective defense strategies may temper the impact of certain procedural aspects of the SAMs, the regulations' very existence has the potential to "chill" the attorney-client relationship and thereby threaten the Sixth Amendment--a reality the courts have yet to acknowledge.

Part I describes the specifics of the case against Lynne Stewart and the national reaction to her conviction, and then establishes why the prosecution of Stewart stands for more than just the sum of its parts. Part II analyzes the U.S. government's long record of infringement upon civil liberties in order to effectuate the dramatic regulation of individual conduct during periods of war and unrest, of which the SAMs is only the most recent example. Part HI portrays the history of the SAMs from the regulation's drafting and implementation by the executive branch, coinciding with the passage of broad counterterrorism legislation, to its almost uniform support by the courts despite clear legal and constitutional vulnerabilities. Part IV recognizes the likely negative impact that Lynne Stewart's conviction may have, in the short term at least, on the vitality of the Sixth Amendment and questions whether meaningful representation is possible in the age of the SAMs. It then posits several recent examples of tenacious advocacy by lawyers representing terrorists--illustrating that Stewart can serve as a guide for where to draw the line between rigorous defense and illegality--and offers some final thoughts regarding the future of the right to defend.

1. UNITED STATES V. STEWART

   1. The Case against Lynne Stewart: Radical Lawyering or Supporting Terror?

      Lynne Stewart's personal story is one that is, of course, unique to her while also resonating with the stories of many who came of age in the 50s. Born Lynne Feltham and raised in Queens, New York, the child of school teachers, she had a traditional upbringing. (10) She married early, became a mother, and when her husband had a psychological breakdown and was unable to work, she became a librarian--all by age twenty-one. (11) Her experiences over the next decade with children at a public elementary school in Harlem politicized her as she became awakened to the vast disparities of wealth and opportunity in the United States and grew determined to...