Posted on 02/17/2005 9:38:56 PM PST by Former Military Chick
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."
The Judge was on O'Reilly tonight and Bill mopped the floor with His Honor's excessively full head of hair.
And while I was out I see that freepers uncovered the little tidbit that Soros funded her defense.
This woman and her client were obviously dangerous and if she violated judicial ethics, she should spend time in the cell next door.
Denny Crane: "There are two places to find the truth. First God and then Fox News."
Anybody hear what F. Lee Levin has said about this little matter?
I listen to his commentary alot and am really convinced he is an a-s
I saw the Judge on tv tonight too. I am glad to read his views in print now. I think he is wrong on a number of points:
1. It is laughable for any Judge to complain about another part of government usurping the powers of Congress to legislate. Had judges not done this for the last 70 year, then what he is complaining about would look far more outrageous. So even if he is right on this point, he only has his fellow judges to blame.
2. About there being no precident for a lawyer to be prosecuted for breaking prison rules, sorry but the fact that prior to 9-11 attorneys were treated differently than the rest of us was wrong not a reason to continue that special treatment. Certainly attorneys for terriorist should not be treated differently than the rest of us if as visitors we broke prison rules. We don't want these guys communicating with their followers even more than we don't want mafia guys running their organizations from prison.
3. There is no first ammendment issue here. She was allowed to speak. Just like anyone who choose to speak she risked breaking tort or criminal law when she spoke. The first ammendment does not free you from slander case law nor does it free you to conspire to commit terriorist acts or murder.
4. I am sympathetic concerning the issue of convicting her on lying to the US government. I certainly have problems with two parties having a discussion, the government agent lies and the private citizen response with a lie and the citizen is then guilty of a crime.
I guess it will come down to whether or not listening in on attorneys and clients meetings in prison is ok or not. I would guess that prison officials might be allowed to do so IF no information about appeal strategy etc were communicated to the prosecutor. This is sort of a catch 22. If a third party is able to hear an attorney client meeting, then the priviledge is void. Thus if they knew they were being taped, which apparently they did, it was not a priviledge conversation?
1. That it is dangerous for Judges to usurp power doesn't mean it's okay for the executive branch to do the same thing.
2. If the government wants to prevent attorneys from passing messages, they could very well put her under surveilance while outside of jail.
3. The issue is whether they should have been listening to the conversation to begin with. I would contend no, absent crossing a threshold where they believe that a threat of a dangerous is immediate and serious, and a court order (much like a search warrant).
The problem is they should be allowed some privileged communication. If they had notice but on the other hand are never given a chance to talk in confidence, then the notice is meaningless.
I am certainly no fan of the leftist like Stewart, but the end does not justify the means. Our founding father warned against trading liberty for security, and I think this is just such an instance.
If she is guilty of what she is accused of, it is treason and she can get the death penalty. I think she should become hamburger meat and sold in Tehran but I can live with death for a traitor
I don't really know the history here, but I can fake it via Google, regarding the murder of Thomas Becket:
http://www.eyewitnesstohistory.com/becket.htm
"Earlier, while in France, Becket had excomunicated the Bishops of London and Salisbury for their support of the king. Now, Becket remained steadfast in his refusal to absolve the bishops. This news threw King Henry (still in France) into a rage in which he was purported to shout: "What sluggards, what cowards have I brought up in my court, who care nothing for their allegiance to their lord. Who will rid me of this meddlesome priest."
That line - "Who will rid me of this meddlesome priest" - has been used to illustrate the point that solicitation to murder need not be so explicit, along the lines of "Go kill John Smith next Thursday." And I don't think the good Judge Napolitano would argue that solicitation to murder is protected by the 1st Amendment.
So the Judge's argument that Lynn Stuart's press conference, in which she participated in or actualized the Sheikh's solicitation to murder (while knowing the consequences), is protected by the 1st Amenment, is wrong.
Hmmm...so will the NYT carry water for Judge Napolitano when he's advocating ending unlawful recounts in gubernatorial elections?
Doubt it.
well, I see, once again, that Soros' money bought another loss..
Witch ought to be burned at the stake.
Furthermore, Judge Napolitano seems to be IMO far too sympathetic to attorneys, who should be culpable under sedition laws which, along with other laws protecting national security (treason?) seem to have been woefully ignored in the recent past.
I agree with Judge Napolitano, however, that attorney-client conversations should not be eavesdropped, with the caveat that the attorney should be obligated to disclose any information that could prevent future terrorist attacks.
In Stewart's case, she has no case. A more vile creature could not easily be found in the USA. She had been aiding vermin who want to detonate nuclear weapons on our soil. She should be hanged by the neck until dead. The carcass should be banned from burial on US soil.
no joke! She has actively advocated the overthrow of the US govt......there is a line that crosses over from free speech to sedition..she crossed it...she signed an agreement and deliberately slinked on it...
wow, I will need to stay up and watch when it replays .. the Judge usually is on the mark. We may in the end agree to disagree.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.