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 terrorist?" http://www.sfgate.com/cgi-bin/article.cgi?f=/chronicle/archive/2001/10/0 3/ED75949.DTL 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 lawyerat_private ______________________________________________________ http://www.law.com/cgi-bin/gx.cgi/AppLogic+FTContentServer?pagename=law/ View&c=Article&cid=ZZZGNVR2B1D&live=true&cst=1&pc=0&pa=0&s=News&ExpIgnor e=true&showsummary=0&useoverridetemplate=ZZZHCC0Q95C 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 terrorism. 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 me. 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. TALKING TO THE SHEIK 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." BEWARE YOUR LAWYER? 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. THEY'RE LISTENING 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. - ISN is currently hosted by Attrition.org To unsubscribe email majordomoat_private with 'unsubscribe isn' in the BODY of the mail.
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