Criminal sanctions can only be imposed by a court of law following an act of Congress. But John Ashcroft promulgated new regulations, violation of which was a violation of existing statutes which provided for criminal penalties, and today Lynne Stewart faces a possible sentence of 30 years in jail.
Elaine Cassel explains how serious this is:
Under the new regulation, the status of the client's confinement is irrelevant. He may be a detainee with no pending charges, a defendant awaiting trial, or someone serving a sentence. (Even convicted persons have legitimate needs to work with their lawyers on appeals, habeas corpus petitions, and to improve conditions of their prison confinement.)
DOJ determines the scope of the "monitoring." According to the regulation, surveillance is allowed "to the extent determined to be reasonably necessary for the purpose of deterring future acts of violence or terrorism."
What's more, there is no provision for judicial oversight of the decision to conduct surveillance, the nature and extent of the surveillance, or DOJ's determination of the boundaries of "legal" representation. Imagine leaving it up to DOJ to tell you what you can and cannot do for your client. Presumably, doing any thing more than pleading the client guilty could create grounds for accusing an attorney of aiding and abetting terrorism.
The complete facts of the case are here (also by Elaine Casell). In sum, "Stewart's supposed support for terrorism instead consisted of aiding her client in 2000 by giving a press release to Reuters News Service in Cairo, Egypt, and of being present when her co-defendants allegedly aided her client in writing a series of letters."
The critical points, according to Cassel, are these: (1) Stewart had to agree to a series of SAMS (Special Administrative Measures) in order to be able to represent her client. "What Stewart did not know what that after she signed the SAMs, the government began surveillance of her visits, first under the 1994 Foreign Intelligence Surveillance Act warrant targeting her client, and then under specific regulations that allowed them to target her." And then things get interesting:
On October 31, 2001, Attorney General John Ashcroft, secretly amended the SAM regulations - without notice to the public. As amended, the regulations allow the Bureau of Prisons to conduct videotape and audiotape surveillance with respect to attorneys' communications with people in federal custody....
No warrant is necessary for the surveillance to occur. Nor is specific notice to the attorney or the client that they will be monitored; according to the regulations. Rather, routine notice that their communications "may" be monitored is enough.
But eventually, as we say in East Texas, we get down to the lick log:
If the attorneys are prosecuted, they can expect, at trial, to be conflated with their clients - just as Stewart was. The prosecution showed an old tape of Osama bin Laden promising revenge if Rahman were not released. In a courtroom only a short distance from Ground Zero, the tape must have meant a great deal. But it related to Rahman, not Stewart. Though Rahman may be a Bin Laden confederate, that does not mean his attorney is.
The larger issue here is not whether Stewart "stepped over the line" from lawyer to criminal co-conspirator, as the jury verdict implies. Nor is it whether terrorism fears caused the jury to reach an irrational verdict - as may well be the case. The larger issue is that those who face terrorism-related charges will now be entitled to a government-crippled defense.
The Ashcroft Justice Department showed disdain for attorneys--save its own. Unfortunately, the Gonzales Justice Department likely will be even worse on this score. Referring to the Stewart verdict, Gonzales was quick to warn that he would "pursue both those who carry out acts of terrorism and those who assist them with their murderous goals."
If you aren't afraid, you aren't paying attention.