More Than Meets The Eye?

Lynne Stewart, attorney, Sheik Omar Abdel Rahman
AP Legal Analyst Andrew Cohen examines the implications of the indictment of the lawyer for imprisoned Sheik Omar Abdel-Rahman.
The most important question raised by the indictment of New York attorney Lynne F. Stewart on terror-related charges may also be one of the most general questions: Even if the allegations of "message-passing" are true, are the federal laws relied upon by the government in prosecuting the case appropriate and applicable? Put another way: Do our existing laws fit these alleged facts or are the feds simply trying to wedge a round peg into a square hole?

There is plenty fishy about the case which finds a lawyer, an interpreter and two others charged with four felony counts which bring the possibility of hefty jail terms.

First, how precisely did federal prosecutors get the specific information contained in the indictment? Attorney General John Ashcroft said the government's new monitoring rules - which permit prison officials to listen in to conversations between attorney and client - would only now go into effect, and there is no other indication in the indictment of how prosecutors learned what they say they learned about the latest Gang of Four.

So is there is a stool pigeon among the defendants? Or were the feds watching Stewart and her client, Sheik Omar Abdel Rahman, long before the Sept. 11 terror attacks? If so, why? And was that surveillance legal given the state of the law before the attacks? The specific, explicit, detailed indictment itself begs the question of how authorities came by the information they rely upon to bring these charges.

From the government's point of view, it must also be fishy that a respected attorney would, at a minimum, allegedly resort to antics like "making extraneous comments in English to mask the Arabic conversation" between Rahman and the interpreter.

If this scenario is true, why would attorney Stewart have done it? As a so-called "left-wing radical," was she fighting for her client's free speech rights while at the same time pushing the envelope against what she perceived as onerous government intrusion into the attorney-client privilege?

In other words, if the allegations are true, was she deliberately flaunting the system and the rules for what she perceived to be a noble cause or did she know fully well what sorts of messages were allegedly being passed back and forth under her auspices? Or was she duped by her client into thinking the communications themselves were harmless? And what are we to make of the government's allegation that Stewart proposed issuing a "public statement falsely claiming that the Bureau of Prisons was denying medical treatment" to Rahman? Even if that is true, why and how precisely does it rise to the level of a federal crime?

One day after the indictment, about the most that is clear is that there is more to this story than meets the eye. I can understand the government's desire to send a message to all criminal defense attorneys that they will be held to a new standard in the post-attack world. And I can understand how and why a defense attorney would bristle at burdens placed upon the very nature of the attorney-client relationship.

What is difficult to grasp this early on in the case is how these two contrasting realities would and could meet in this particular fashion. The case and the judge and discovery and pre-trial hearings and the trial itself will fill in this blank and many others.

Indeed, as this case moves forward it will present the judicial branch with many opportunities to answer key legal questions raised by the Bush administration's aggressive new approach to law enforcement and the criminal justice system.

For example, the federal courts almost certainly will be asked to determine the constitutionality of the Special Administrative Measures (SAM)protocol, which drastically reduces the ability of certain inmates and their lawyers to disseminate even protected speech.

Whenever the First Amendment bucks up against law enforcement goals, the courts have to apply a balancing test (the test varies, depending upon the speech implicated) and then determine which competing interest ought to prevail.

How will that turn out here? Precisely what sort of "speech" are we dealing with? An incitement to violence, a criminal plan, or just plain political (albeit violent-sounding) rhetoric? And, while the feds clearly have an important interest in preventing future terror attacks, do the SAM rules go to far?

I suspect the courts also will determine as a matter of law whether a lawyer's violation of the SAM constitutes a criminal fraud, as the government now claims against Stewart, or some lesser offense. After all, breaching an agreement, which arguably is what Stewart did if you buy the government's claims, doesn't necessarily mean you've defrauded the party with whom you contracted.

The Stewart case also likely will give the federal courts an opportunity to further define what "material" means in the federal statute which makes it a crime to provide "material support and resources" to terrorist organizations.

"Material" has to mean something in the statute-- even members of Congress don't just put into law words like that for no reason-- but so far the courts haven't had much opportunity to explore precisely what sort of conduct constitutes "material" conduct. Is it fighting with the Taliban against the Northern Alliance, as the government claims in the John Walker Lindh case? Is it "covertly passing messages" to a terrorist organization, as the government claims in this case? Must it be more substantial? Can it be less? The courts will decide. For that matter, the federal courts also will have to decide how strong the attorney-client privilege is in an age where prosecutors contend that clients use their lawyers to effectuate terror.

Like the other terror-related cases everyone is talking about, the Stewart case is going to go a long way in shaping post-attack law and the way the government is required to act within the confines of that law. I'm sure Stewart and her co-defendants would disagree, but it's probably better for all of us that these issues get raised and resolved sooner rather than later.