[ISN] Lets Indict All the Lawyers

From: InfoSec News (isnat_private)
Date: Tue May 21 2002 - 02:28:24 PDT

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    Forwarded from: Marjorie Simmons <lawyerat_private>
    What if the organization for which you work, and for which you are the
    primary or sole information security person, (or are the consultant
    that designed the systems security), suffers a security breach, and
    the US federal government decides that the breach was accomplished by
    terrorists, and that you are the primary at-fault person, and they
    arrest you because, to them, it looks like you may have helped?  
    (Don't forget the contemporary lawmaking that makes hacking a
    terrorist act -- though the 'terrorist' may be a 12-year-old from
    Lincoln, Nebraska.)  Would you call your lawyer?
    What follows is a long article, but it is instructive. Those ISN
    readers with a literary bent may remember that the phrase "lets kill
    all the lawyers" was spoken by a character who would profit by the
    subversion of the law.
    Last October Jennifer Granick (a lawyer whom many ISN'ers may know)
    wrote a piece that made this list "[ISN] Computer hacker -- vandal or
    from which I include this relevant portion:
       . . . the House is now considering a bill that would reclassify
       computer hacking as a terrorist offense if it is done to influence
       government action by intimidation or coercion, or to retaliate
       against government conduct.
       The proposal, the PATRIOT (Provide Appropriate Tools Required to
       Intercept and Obstruct Terrorism) Act of 2001, increases the statute
       of limitations for hacking from five to 15 years. Those convicted
       could be sentenced to life in prison, and the federal system does not
       have parole. Another amendment would make those who give "expert
       advice" into terrorists themselves if they advised knowing that it may
       be used in the preparation or commission of computer hacking.
       With that vote, I could become a terrorist, depending on how judges
       interpret the prohibition against giving "expert advice" to hackers. I
       am a criminal defense lawyer who represents people charged with
       computer-hacking offenses. I also teach at Stanford Law School,
       examining how laws affect computer security, freedom of speech,
       privacy and scientific progress.
     . . . snip rest of article . . .
    As you're all aware, (I hope), the PATRIOT legislation is now law,
    along with much other newly-enacted verbiage of very dubious
    Constitutionality, most of which has been a reaction to 9-11-2001.
    The US Attorney General John Ashcroft has wasted no time in bringing
    counselor Granick's well-founded fears to full fruition.  She could be
    next, and so could I, and so could your lawyer, and their lawyer,
    until Ashcroft's dream of hegemony has killed all the lawyers, and the
    Constitutional rights of every US citizen will lie in impotent
    silence. If your lawyer has been arrested simply for representing you
    -- who then will speak for you?
    Marjorie Simmons
    Let's Indict All the Lawyers
    Attorneys for terrorists may well look at Lynne Stewart's case and wonder 
    who's next
    Nat Hentoff, Legal Times
    May 17, 2002
    Over the years, Lynne Stewart has defended Black Panthers and a member
    of the Weather Underground charged in the notorious Brink's
    murder-robbery. Against huge odds in 1988, she and her mentor, William
    Kunstler, defended a black man against charges of trying to murder
    nine police officers in a shootout. (He was convicted only of gun
    possession.) And Stewart's current client list includes mob
    turncoat/alleged drug dealer Sammy "The Bull" Gravano.
    Though some wouldn't have taken the clients Stewart has taken, the
    62-year-old lawyer is respected by many of her fellow New York defense
    attorneys for her courtroom skills. So it was no surprise that several
    dozen members of the defense bar crowded into a federal district court
    to witness Stewart's April 9 arraignment. Stewart was charged with
    criminal conspiracy to provide material support for terrorism,
    providing material support for terrorism, conspiracy to defraud, and
    making false statements.
    The lawyers watching her plead "Emphatically not guilty!" were there
    out of concern for Stewart's due process rights. But there was also
    more than a little apprehension about what might happen next, to some
    of them, in the Justice Department's war on terrorism. Fueled by the
    post-Sept. 11 USA Patriot Act, federal prosecutors are lowering
    standards for criminal investigations under the rubric of fighting
    The morning after Stewart's arraignment, lawyers' concerns were
    further heightened when they read in The New York Times that "Late
    yesterday, FBI agents could be seen leaving Ms. Stewart's law office
    ... carrying two computers, a box filled with sealed envelopes, and a
    large sealed evidence bag. Martin R. Stolar, a lawyer whose office is
    near Ms. Stewart's, said: 'They went through everything, hard drives,
    her files, books, you name it. It's scary when you walk into an
    attorney's office and see that type of thing.'"
    "They even took her Rolodex," Susan Tipograph, Stewart's lawyer, tells
    Before the arraignment, Attorney General John Ashcroft -- in New York
    for the event and for an appearance on the David Letterman show --
    triumphantly announced the criminal indictments against Stewart and
    three co-defendants at a nationally televised press conference. He
    omitted any mention of the presumption of innocence, as did most of
    the press coverage then and since.
    The client who brought Stewart into the dock is Sheik Omar Abdel
    Rahman, who is serving a sentence of life plus 65 years for the 1993
    bombing of the World Trade Center and for having planned,
    unsuccessfully, to blow up the United Nations and the Holland and
    Lincoln tunnels into New York City.
    In 1998, the Justice Department obtained a warrant to monitor
    conversations between Stewart and her incarcerated client. To gain
    access to the sheik, Stewart had previously agreed to a Special
    Administrative Measure (SAM), under which she would confer with him
    only on legal matters and would not communicate any messages from him
    to anyone, including members of the media.
    Stewart is charged with violating that agreement by helping the sheik
    send messages to the Egyptian-based, worldwide terrorist organization
    known as the Islamic Group, of which Abdel Rahman remains the
    spiritual leader.
    A key element in the case against her is that one day in May 2000,
    Stewart allowed Mohammed Yousry -- who interpreted conversations
    between Stewart and the sheik -- to discuss with the sheik, among
    other matters, whether he should recommend to his followers that they
    continue to comply with a cease-fire agreement. "Because these
    discussions violated the SAM," says the indictment (which also names
    Yousry), "Stewart took affirmative steps to conceal these discussions
    from prison guards" by "making extraneous comments in English to mask
    the Arabic conversation."
    How Stewart, who does not speak or understand Arabic, could have known
    what she was masking in that conversation or when her comments were
    "extraneous," the indictment does not explain.
    Another charge is that Stewart in June 2000 told the media that the
    sheik had withdrawn his support for the cease-fire agreement.
    Tipograph, Stewart's lawyer, reports that the Justice Department
    thereupon had Stewart sign another SAM agreement not to release any
    further messages from the sheik.
    In other words, the Justice Department does not seem to have been
    unduly exercised by Stewart's violation of the first agreement.
    Certainly, her visits to the sheik continued. It was two years later
    -- after Congress was intimidated into agreeing that the rights of
    terrorists, alleged and convicted, aren't very important -- that the
    indictment was handed up.
    Stewart shows somewhat less apprehension about this indictment than
    some other defense lawyers I've talked to. "I'm a lawyer, and I fight
    for my clients," she says. Now that she herself is a defendant, "This
    will be a very good fight."
    In what some of her colleagues read as a warning to the defense bar
    about representing those accused in the war on terrorism, The New York
    Sun reported that the Justice Department had asked a federal judge to
    bar Stewart from continuing to represent another highly visible
    client, Sammy Gravano. Because Stewart herself is now a defendant,
    reasoned the Justice Department, "she may have a motive to curry favor
    with the government, which could be contrary to Gravano's interests."
    Accordingly, Gravano "could not rationally decide to keep Ms. Stewart,
    given all the risks arising from recent events."
    The judge appointed a lawyer to advise Gravano about those risks, but
    he decided to continue to retain Stewart anyway. However, Stewart told
    The New York Times that outside the court, Gravano did wonder, "Were
    they listening to us, too?" [Editor's note: On Tuesday, according to
    wire reports, Gravano told a federal judge he was replacing Stewart
    because her legal woes could create a conflict of interest.]
    That question may well have been asked by any of Stewart's other
    clients when her computers and files were carted away by the
    government. Tipograph has asked that a special master be appointed to
    separate from those files materials not germane to the case against
    Stewart. The usual practice, she tells me, is for the Justice
    Department to appoint prosecutors not involved in the case to go
    through files taken from an attorney's office before handing the
    relevant information over to their colleagues handling the case. But
    somehow Tipograph doubts that such an in-house screening would be
    truly independent.
    In another post-indictment development, Kenneth Paul, who represents
    Stewart's co-defendant Ahmed Abdel Sattar, has asked the court to
    guarantee that his meetings with his client not be recorded as part of
    an ongoing criminal investigation. Assistant U.S. Attorney Christopher
    Morvillo told the judge that given the secrecy provisions of the
    Foreign Intelligence Surveillance Act, he could not make that
    guarantee. And don't forget that in his press conference announcing
    the indictment, Ashcroft also pledged that his unilateral order
    allowing the monitoring of lawyer-client prison conversations will be
    vigorously implemented.
    Without an assurance that he and his client will not be recorded, says
    Paul, "it's going to be impossible to represent him." And Tipograph
    insists that without this assurance, she will refuse to let her client
    engage in defense conferences with Paul and his client.
    Tipograph says that she has sent a letter to prosecutors asking
    "whether Lynne Stewart's phones or my phones -- we share the same law
    suite -- are being monitored in any way."
    "We're all nervous about who's listening," she told The New York Sun.
    Paul added, "We're looking over our shoulders. Who's listening? Who's
    not? How can we talk to our clients without somebody listening?"
    As for Stewart, will she still talk with the sheik? That may no longer
    be possible. The New York Times reported on April 25 that the sheik's
    other lawyer, Abdeen Jabara, said "that the government had barred him
    from speaking to his client or even learning his whereabouts" until he
    signed an agreement that Jabara "described as even more restrictive
    than the ones previously imposed on Mr. Abdel Rahman's conversations."
    "Since he, in any case, is being monitored," Tipograph tells me, "I
    would be concerned as her lawyer -- since she herself is under
    indictment -- as to whether to have her continue to communicate with
    him. And that precisely is what the government wants to happen -- that
    she cannot continue to represent him."
    I suppose you could argue that John Ashcroft was showing concern about
    Sammy Gravano's constitutional rights when the Justice Department
    tried to warn Gravano away from Stewart. But is that what the Framers
    really had in mind when they guaranteed the right to counsel in the
    Sixth Amendment?
    And did they foresee Lynne Stewart's situation? Whatever happens in
    this case, she may now be the most radioactive lawyer in the country.
    Nat Hentoff is a longtime columnist for the Village Voice.
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