February 17, 2005
By ANDREW P. NAPOLITANO
The conviction of Lynne F. Stewart for providing material aid to terrorism and for lying to the government is another perverse victory in the Justice Department's assault on the Constitution.
Ms. Stewart, the lawyer who was convicted last week of five felonies, will be disbarred and faces up to 30 years in jail. She represented Sheikh Omar Abdel Rahman, not exactly a sympathetic character. He is the leader of the Islamic Group, a terrorist organization that plotted the assassination of President Hosni Mubarak of Egypt and masterminded the 1993 bombing of the World Trade Center.
He was sentenced in 1996 to life in prison. When Ms. Stewart sought to visit her client in jail, prison officials required her to sign an affirmation that she would abide by special rules requiring that she communicate with the sheikh only about legal matters. The rules also forbade her from passing messages to third parties, like the news media. Yet the jury found that Ms. Stewart frequently made gibberish comments in English to distract prison officials who were trying to record the conversation between the sheikh and his interpreter, and that she "smuggled" messages from her jailed client to his followers.
But if the federal government had followed the law, Ms. Stewart would never have been required to agree to these rules to begin with. Just after 9/11, Attorney General John Ashcroft gave himself the power to bypass the lawyer-client privilege, which every court in the United States has upheld, and eavesdrop on conversations between prisoners and their lawyers if he had reason to believe they were being used to "further facilitate acts of violence or terrorism." The regulation became effective immediately.
In the good old days, only Congress could write federal criminal laws. After 9/11, however, the attorney general was allowed to do so. Where in the Constitution does it allow that?
Mr. Ashcroft's rules, with their criminal penalties, violate the Sixth Amendment, which grants all persons the right to consult with a lawyer in confidence. Ms. Stewart can't effectively represent her clients - no lawyer can - if the government listens to and records privileged conversations between lawyers and their clients. The threat of a government prosecution would loom over their meetings.
These rules also violate the First Amendment's right to free speech. Especially in a controversial case, a defense lawyer is right to advocate for her client in the press, just as the government uses the press to put forward its case. Unless there is a court order that bars both sides from speaking to reporters, it should be up to the lawyer to decide whether to help her client through the news media.
Ms. Stewart's constitutional right to speak to the news media about a matter of public interest is absolute and should prevent the government from prosecuting her. And since when does announcing someone else's opinion about a cease-fire - as Ms. Stewart did, saying the sheik no longer supported one that had been observed in Egypt - amount to advocating an act of terrorism?
In truth, the federal government prosecuted Lynne Stewart because it wants to intimidate defense lawyers into either refusing to represent accused terrorists or into providing less than zealous representation. After she was convicted, Ms. Stewart said, "You can't lock up the lawyers, you can't tell the lawyers how to do their jobs."
No doubt the outcome of this case will have a chilling effect on lawyers who might represent unpopular clients. Since 9/11 the federal government's message has been clear: if you defend someone we say is a terrorist, we may declare you to be one of them, and you will lose everything.
The Stewart conviction is a travesty. She faces up to 30 years in prison for speaking gibberish to her client and the truth to the press. It is devastating for lawyers and for any American who may ever need a lawyer. Shouldn't the Justice Department be defending our constitutional freedoms rather than assaulting them?
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is an analyst for Fox News and the author of "Constitutional Chaos: What Happens When the Government Breaks Its Own Laws."