In his New York Times op-ed today Andrew Nepolitano claims that “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.” The only thing this conviction assaults, however, is lawyers who help their clients commit terrorist acts.
Lynne Stewart is the self-anointed “civil rights attorney” who was hired to represent the terrorist Abdel Rahman (the man behind the 1993 bombing of the World Trade Center). She defended him with the utmost zeal, and should be commended for representing such a highly unpopular individual. However, despite the opinion of Judge Nepolitano, she is not on her way to prison for defending a despicable individual. She’s headed to the slammer because she passed way over the line, broke the law and aided terrorism.
While defending Abdel Rahman Stewart signed “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.” These special rules were seen as necessary in this case because the government didn’t want Abdel Rahman to continue to run his terrorist operation from behind bars. If Steward had a problem with this agreement she should have fought it at the time. Instead, she signed it, and immediately broke her promise.
Here’s Nepolitano’s basic argument:
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.
A defendant has the right to confidential communication with his attorney. That right, however, does not cover communications that are themselves crimes or in furtherance of a crime. For example, if a lawyer and a burglar get together and to plot a bank robbery, their communications do not come within attorney-client privilege. The Lynne Stewart case is analogous. The communications for which Stewart has been convicted had nothing to do with the defense of her client whatsoever. They were simple acts to further Abdel Rahman’s terrorist activities, and the government had the duty to prosecute her for them.
Nepolitano further argues:
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.
Nepolitano is also right that a lawyer should be able to advocate her client in the press, but, once again, that’s not what happened here. Stewart was not barred from speaking with reporters. She isn’t being convicted for going before the cameras and saying “my client is innocent . . . his conviction is a terrible miscarriage of justice . . . he’s always kind to children and kittens . . . yadda, yadda, yadda, blah, blah, blah.” What she did was pass messages which helped him run his terrorist operation from behind bars, and she did it despite signing an agreement not to.
The jury, thank goodness, was smart enough to see this.