We Should Have Gone to Med School: In the Wake of Lynne Stewart, Lawyers Face Hard Time for Defending Terrorists

Georgetown Journal of Legal Ethics, The, Summer 2005 by Clare, Alissa

INTRODUCTION

A federal jury in Manhattan convicted Lynne Stewart, a New York civil rights lawyer and self-proclaimed radical,1 on February 10, 2005 "on all five counts of providing material aid to terrorism and of lying to the government when she pledged to obey federal rules that barred her client, Sheik Omar Abdel Rahman from communicating with his followers."2 With this conviction, the Justice Department scored a major victory in its War on Terror, by applying to attorneys the statute proscribing material support to terrorism. Attorney General Alberto Gonzalez stated "[t]hese convictions 'send a clear, unmistakable message that this department will pursue both those who carry out acts of terrorism and those who assist them with their murderous goals.'"3 Stewart faces thirty years in prison and was immediately disbarred as a result of her felony conviction.4

Both the news and the legal community5 have closely followed Stewart's case, with pundits and scholars considering the motivations behind her prosecution and how it affects the legal community. Stewart's case implicates diverse issues including political,6 constitutional,7 and ethical issues.8 Her conviction creates a grave danger of chilling legal representation for accused terrorists due to the lack of clear guidelines and notice regarding the application of criminal statutes to the lawyers who defend them.

Times of national crisis exacerbate the persistent tension between civil liberties and national security.9 The terrorist attacks of September 11, 2001 sparked our current national crisis, upsetting the balance once again. Stewart's conviction will weigh on this very delicate balance of ensuring civil liberties while protecting national security. It also will have serious repercussions for attorneys who defend clients accused or suspected of terrorist activity. Section I of this Note begins with a brief discussion of Lynne Stewart's case. Sections II and III survey anti-terrorism legislation and explain how the government may apply it to attorneys. section IV concludes that the government's decision to prosecute attorneys for providing material support to terrorism at best will disadvantage defendants accused of terrorism and at worst will discourage representation of accused terrorists altogether.

I. LYNNE STEWART'S CASE

Lynne Stewart is the first attorney accused and convicted of providing material support to terrorism under the 1996 Antiterrorism and Effective Death Penalty Act ("AEDPA"), 18 U.S.C. § 2339B, based on her actions as counsel.10 The government charged her with, among other things, "conspiring to provide material support or resources to designated foreign terrorist organizations in violation of 18 U.S.C. § 2339B, [and] providing such material support and resources."11 Stewart was found guilty of providing personnel to Gama'a al-Islamiyya, or, the Islamic Group (the "IG"),12 by acting as a liaison between her client, convicted terrorist Sheik Omar Abdel Rahman (a.k.a. The Blind Cleric), and the IG.13

Rahman, a convicted terrorist and figurehead of the IG, '4 was incarcerated and placed under Special Administrative Measures ("SAMs") in order to protect against future acts of death or serious bodily injury.15 The SAMs prohibit him from communicating with anyone outside the prison except his lawyers and his wife.16 Stewart knew that Rahman was under SAMs, having twice signed and twice breached an agreement to honor them.17 Stewart testified at her trial that "she was acting within an unwritten lawyer's 'bubble' in the prison rules that allowed her to defend her client as she thought best."18 The jury found that Stewart facilitated communication between Rahman and the IG by concealing conversations between Rahman and another member of the IG19 and by issuing a press release on behalf of Rahman.20

Taped conversations between Stewart and Rahman show Stewart asking Rahman innocuous questions regarding his treatment in prison and making small talk via an Arabic interpreter. Translation of the tapes revealed that Stewart feigned conversation with Rahman by posing non-sequiturs to cover exchanges between Rahman and the translator.21 Stewart also issued a press release on behalf of Rahman, conveying his opposition to a cease fire in Egypt by calling a reporter for Reuters in Cairo, who wrote the story that same day.22 The SAMs, as acknowledged by Stewart, prohibited both these actions.23 As a result, the government successfully charged Stewart with providing material support to terrorism despite the government's failure to prove "that any violence resulted from [her] actions" or that the IG canceled its ceasefire as a result of the Egyptian press release.24

II. ANTI-TERRORISM LEGISLATION

The September 11 terrorist attacks ignited the "War on Terror," and the United States government made national security both the government's priority as well as an umbrella justification for its actions, even at the expense of civil liberties.25 Former Attorney General John Ashcroft soon thereafter articulated the government's goal as preventing future acts of terrorism.26 In this context, Congress passed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the "Patriot Act"),27 which greatly expanded the government's powers both by amending existing anti-terrorism legislation and by creating new means for the government to prevent acts of terrorism. Recognizing that the dust is still settling, this section reviews existing laws relevant to Lynne Stewart's case, addresses constitutional and common law objections to these laws, and presents the government's responses.