I’d been unhappy with the Federal prosecution of radical attorney Lynne Stewart, having assumed from a glance at the story that the acts she was being prosecuted for were a violation of the rules under which Sheikh Rahman was being held – but that they were acts that had some, dim, relationship to her role as his advocate for him in the U.S. legal system.
I don’t like it when prosecutors win by putting defendant’s lawyers in jail for defending them.
But then I read the facts – in a story in today’s New York Times – and realized what a dork I was.
Mr. Tigar’s line of questioning yesterday centered on Ms. Stewart’s decision, after a prison visit with the sheik on May 19 and 20, 2000, to telephone a Reuters correspondent in Cairo and release a statement in which the sheik withdrew his support for a three-year-old cease-fire by his militant followers in Egypt. Prosecutors have charged that Ms. Stewart relayed an order for terrorist war from her client when he was supposed to be incommunicado.
On the stand, Ms. Stewart acknowledged that her decision had been a “close call.” But she said that continuing to represent Mr. Abdel Rahman while he was in prison and after he had lost all his appeals had been “a team effort” she shared with Ramsey Clark, a former United States attorney general, and Abdeen Jabara, a lawyer who specializes in Arab clients. She said the lawyers believed that the special prison restrictions imposed on the sheik included a “bubble” that allowed the lawyers to continue to develop their own defense strategy and exercise their attorney-client privileges.
She said she had “an expansive view” of the prison rules, which she signed on to repeatedly after they were imposed in 1997. “I understood this meant we were permitted to do the necessary legal work to vigorously defend Sheik Omar Abdel Rahman, who was incommunicado,” she said.
She relayed a message she didn’t understand, which was a clear call to violent conflict. And her response?
Her approach, she said, was to do whatever she could to keep the sheik “in the public eye,” with the goal of building political support to eventually send him back to Egypt to serve out his sentence, she said. Although she does not speak Arabic, she said she understood that the sheik’s May 2000 message was intended only to start a debate among his followers about the Egyptian cease-fire, not to end it.
“Did you think your client wanted people to pick up the gun and start shooting?” Mr. Tigar asked.
“No,” Ms. Stewart said emphatically.
Asked if she had ever passed to the news media an instruction from the sheik that “people should commit violence,” she said, “Absolutely not.”
She added: “It would not have been proper. We are not allowed to become part of the client’s effort to break the law.”
Ms. Stewart said she remained shocked that the government had made secret videotapes of her meetings with the sheik in federal prison in Rochester, Minn., and secret recordings of her phone calls to him. She said she had made diversionary comments in meetings when the sheik was dictating his cease-fire message to her Arabic translator because she distrusted the guards, whom she regarded as meddlesome.
Jail. For a long time.
And for me, a commitment to work harder at refraining from judgment until I read the whole story.
Dude,
she was basically acting as a courier between OBL and his operatives who were on trial, coaching them and passing operational info back out regarding the investigative techniques, etc.
Don’t worry if you feel like a dork about being wrong about her – she’s a revolutionary propagandist. Her schtick is convincing people of things that aren’t true, and de-legitimizing social institutions like the courts. You aren’t the first person taken in by her.
And disbar her. She completely abused the attorney-client privilege, making it harder for future defense attorneys to do their job.
We saw a lot of this pattern back in the 1970s – radical leftists who hated their societies with a passion, and whose only restraint from participation in terrorism was a lack of opportunity.
I don’t believe her excuses for a second. With her client Omar Abdel Rahman, Stewart finally found her opportunity.
She won’t be the last of her type by any means. I suppose we’ll have to settle for a long jail sentence this time.
Well, I suppose the “Free Mumia!” folks will have space on their signs to add a “Free Lynne Stewart!” line…
Jail. Agreed. A number of terror defendants have gotten outstanding and sometimes very successful representation from the defense bar (Padilla, the Gitmo detainees, the would-be LAX bomber); this is joining a conspiracy.
I don’t suppose “Exile” is a possible sentence?
It’s a win/win. She gets to go live with her new friends and not judge the rules of her new society. We get one less lawyer for the price of a steerage ticket to Egypt.
It’s not clear from the NY Times article exactly what she said. I grant you, she may — may! — have been stupid. Stupidity is not criminality, or all 3 branches of our government would be doing time.
She does have a responsibility to, “As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.” “Preamble, ABA Model Rules”:http://www.abanet.org/cpr/mrpc/preamble.html.
She also has to watch out for “rules on trial publicity”:http://www.abanet.org/cpr/mrpc/rule_3_6.html which are quite clear, though mainly intended to avoid poisoning the jury pool. I’d like to know just exactly what this message was and whether it rises to knowing conspiracy, not the usual “my client is innocent” splutter.
The Government attorneys have to remember that “A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.” “Rule 1.2b”:http://www.abanet.org/cpr/mrpc/rule_1_2.html.
It’s not clear from the article what she said. If Sheikh Whats-his-name told her to tell the press, “The red snow rises in alabaster abstracts” or some such, it would have been obvious code. However, it could be that the Government is trying to send a message, through this particular (if flawed) advocate, not to get too zealous in doing one’s job as defense attorney. A defense attorney in our system is supposed to defend her client, not provide a veneer of respectability for a summary execution.
And it distracts from the other issues about “attorney-client conversations being monitored”:http://www.law.com/jsp/article.jsp?id=1098217029140 at Guantánamo and stuff, and there is this whole 6th Amendment thing about right to counsel, which won’t work if the attorney either can’t communicate with her client or is intimidated.
Is it worth wrecking 800 years of common-law adversary proceedings, A.L.? Because we in the English-speaking world deliberately chose that over an inquisitorial method in which judge and counsels are seeking to convict come what may. And, that kind of proceeding, a trial in which the defense counsel wears a muzzle, is something I hoped went out of business with the USSR.
PS. To PD Shaw, “attorney-client privilege” is meant to protect the attorney from having to testify to a client’s confidences, a rule of evidence going back to at least James I. It’s not a matter of whether one is taken in by Lynne Stewart; one shouldn’t be taken in by John Ashcroft either.
“But she said that continuing to represent Mr. Abdel Rahman while he was in prison and after he had lost all his appeals had been “a team effort” she shared with Ramsey Clark, a former United States attorney general, and Abdeen Jabara, a lawyer who specializes in Arab clients.”
Can we throw the book at Ramsey Clark and Abdeen Jabara? I really really want to throw the book at Ramsey Clark.
Bob, I don’t buy it. Any of it. It isn’t her job to be passing messages in this situation. Period.
If someone gives me a package and tells me to give it to person B, and the package contains cocaine, I don’t get to plead ignorance if I’m caught. She was outside the line to do this at all, and I don’t see why she gets to plead ignorance here. Personally, I believe that she knew full well and this is just a transparent dodge.
Bottom line: She acted as a conspirator IMO, and should be punished as one. We’ll see how her trial goes.
Issue #2: your description of judge-led procedings is way off base. I don’t exactly love France, but the goal of their criminal system is NOT to convict come what may, and your characterization of their legal tradition as such is dishonest.
Issue #3: I’ll add that I’m not bothered by the monitoring in Guantanamo, either. I would be very bothered if it was happening to citizens in criminal procedings, but not to enemy combatants.
Indeed, I don’t consider enemy combatants of any sort part of those common law traditions, or of that system, unless one voluntarily places them within that system via trial in a civilian court. So I don’t see those procedures as tearing anything up, because they’re outside that framework to begin with.
You quoted the key passage for unlawful combatants yourself:
bq. “In each case, such persons shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.” (Art. 5)”
They are entitled by treaty to a fair and regular trial, without torture. Not “common law.” If an American POW in the hands of a Roman Law country can be tried without a jury and that is acceptable to the Geneva Convention, then I’d have zero complaint if the Gitmo trial system was set up that way.
The goal of any trial involving enemy combatants is not like a civilian trial, and this is where I think Bob is completely off the rails.
The goal for a trial of enemy combatants must be to get at the truth first, to maintan security second, and to gather useful intelligence third. We can’t afford the usual kind of b.s. whereby these guys treat their time in Gitmo like time in most American prisons, and just run their operations from inside. The stakes are far too high. This is war, not crime.
Given that some detainess have been released safely, the other goal given the war we’re in is obviously determination of whether the security of the state would be imperiled by letting detainees go, per article 5 of the Geneva Conventions. Incidents in Afghanistan & Pakistan show that we’ve already made serious mistakes there, so it isn’t a goal to be taken lightly.
Taken together, these priorities may help explain why I don’t believe that a lawyer for a Gitmo detainee is intrinsically unable to do his/her job if conversations are being monitored. Tap-tap-tap. Sorry Bob. Sympathy meter still busted. The story is the story. The defenses are the defenses. The lawyer can present those defenses to a fairly constituted court. Meanwhile, security must be maintained (goal #2) and those who cross the line into conspiracy will be prosecuted.
This is Osama & co. we’re talking about, Bob, not OJ. Try not to confuse the 2.
bq. We get one less lawyer for the price of a steerage ticket to Egypt.
Screw that. She can swim.
The “story”:http://www.textfiles.com/conspiracy/wtcbomb1.txt of how Sheik Rahman came to live in the USA is an interesting one.
After years of leading militant Islamic organizations in Egypt, which made him a problem to that country, he was recruited by the CIA and flown to Pakistan to preach his extremism to the mujahideen fighting the Soviets and help in their organization.
Then, for his faithful service, he is given a US visa and allowed to stay in the USA. Whereupon he starts to recruit mujahideen for operations against the Godless USA.
Of course, it’s all Lynne Stewart’s fault.
Of 9/11, Lynne Stewart said:
“”I’m pretty inured to the notion that in a war or in an armed struggle, people die. They’re in the wrong place, they’re in a nightclub in Israel, they’re at a stock market in London, they’re in the Algerian outback — whatever it is, people die…So I have a lot of trouble figuring out why that is wrong, especially when people are sort of placed in a position of having no other way.”
If she had trouble figuring out why 9/11 was wrong, she probably has trouble understanding why any terrorist attack would be considered ‘wrong’. After all, the terrorists are ‘placed in a position of having no other way’.
Bob,
A lawyer is not a conduit, a lawyer is not a communication devise, a lawyer is not a publicist.
A lawyer receives information from the client so that he/she can develop a legal strategy, utilizing the attorney’s expertise. What this attorney did was fascilitate the distribution of such lovely homelies as the one asking
“brother scholars everywhere in the Muslim world to do their part and issue a unanimous fatwah that urges the Muslim nation to fight the Jews and to kill them wherever they are.”
Passing notes is not legal work — a fifth-grader can do it. Of course, passing this kind of note might make you an accomplice to murder and/or genocide.
Not for this attorney, though. She says she had a “duty” to her client to do this. She was exercising the attorney-client privilege. She’s hiding behind her law license and I hope that, even if acquitted, the bar takes it away.
klaatu – Nice try, but whether Rahman is blowback has no bearing on whether or not Stewart is guilty of conspiracy charges.
According to Reuters, at her trial on Wenesday, when asked if she’d do it again, she said: “I’m diminished by the loss of clientele. My family has suffered tremendously,” she said, her voice breaking. “I don’t know if I would.”
Not exactly a penitent response…
Joe, As long as we’re talking about passing messages — or hearsay — I might remind you that so far I’m not seeing exactly what she said. At least, so far, that rises to a breach of ethics and/or of law. Stupid comments about Israel, yes (duly noted, mary, but being loathsome is not the same as being criminal). Or if what PD Shaw quoted (got any hyperlinks?) actually was one passed message then she crossed the line only then, and only then is she liable for Bar discipline, criminal and/or civil liability. I don’t contest that. But I don’t want us falling into a situation where prosecutors win cases by going after opposing counsel. That what you want?
Also, Joe, I might point out that (1) Rahman was convicted in a Federal (civilian) court and his appeals and whatnot are in that context, (2) terrorists like him or Timothy McVeigh were duly prosecuted in civilian court, and (3) this concept of “enemy combatants” is a relatively recent construct. We’ve already “gone over that discussion”:http://windsofchange.net/archives/005160.php and I really don’t want to recite the _Milligan-Quirin-Eisentrager-Yamashita_ string of cases again here.
And this matter arises in a Federal court _in U.S. territory_, not Gitmo. Not a Geneva Convention matter but very much a U.S. Constitutional matter.
“The goal of any trial involving enemy combatants is not like a civilian trial, and this is where I think Bob is completely off the rails.
“The goal for a trial of enemy combatants must be to get at the truth first, to maintan security second, and to gather useful intelligence third. ” — thread, above
So, if I’m reading this right, we can disregard the Constitution for anybody labeled “enemy combatant” — funny how little legal precedent there is when you make up terms as you go — “get at the truth” even if you have to force it out of them, and maybe try them without effective counsel after that.
“If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal – would bring terrible retribution.”
—Justice Louis Brandeis, dissenting, Olmstead et al v. U.S., 277 US 485 (1928)
It’s one thing to bring Lynne Stewart to trial, or before the New York Bar, if she has done something more than mere stupidity. No sympathy warranted. Something else again to adopt Soviet methods of jurisprudence, and something else again to decide that a Constitution is optional. Because that’s what you may be hinting at. Break it, and it might not be fixed. “Tap tap tap.”
“I am aware of a hidden tendency in the United States leading the people to diminish judicial power … I venture to predict that sooner or later these innovations will have dire results and that one day it will be seen that by diminishing the magistrates’ independence, not judicial power only but the democratic republic itself has been attacked.”
Alexis de Tocqueville, Democracy in America (1830)
PS. Joe, I don’t remember mentioning France in any of this, although the inquisitorial system did evolve out of Roman/church law on the Continent. Far be it from us to show disdain for France. I was thinking of a mutation of inquisitorial trial, in the 1936 Soviet purge trials, and the German “People’s Court”.
“If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him.”
—Cardinal Richelieu
Oh, and Joe, one more thing, worth bringing out in a separate post. I really do not think that debate is furthered by calling me dishonest. Especially if it is to score points in debate. Now, if I’m in error on a characterization of Continental law it would be well to find a hyperlink and we’ll see further.
There’s already way to much mud in the air and I would like to think that WoC is a matter of discourse. Not polemics.
Bob,
Suppose the communicated phrase was “I’m doing fine, but don’t like the food as much as my wife’s.”
How do you determine whether or not that is a code? How do you know what message is really being sent? A more relevant consideration is to whom she sent the message. A fellow attorney helping her with the defense is plausibly connected to the defense of her client; a Reuters correspondant isn’t.
His lawyer doesn’t have the right to serve as a conduit for any message to anyone if the court so orders. If she thinks passing notes to third parties is necessary to the defense of her client, she can go to the judge to try to get the order lifted or modified. She doesn’t have the right to unilaterally make an “expansive” “interpretation” of it.
No, we don’t want the government to win cases by attacking attorneys. But defense attorneys are officers of the court, and bound ethically to obey it, even when they disagree.
Bob,
I think you need to address the issue of the Special Administrative Rules – the rules Stewart took an “expansive” view of. I agree with Rob.
I think the indictment supports that position.
This is a Frontpage article with a copy of the original indictment from 2002. (Only one I could find with a cursory Google.)
Bob, you write: if what PD Shaw quoted (got any hyperlinks?) actually was one passed message then she crossed the line only then, and only then is she liable for Bar discipline, criminal and/or civil liability. Really? “Then and only then”? You would appear to be arguing that Stewart has an affermative right to circumvent the SAM’s prohibiting Rahman from external communication. Is that what you would say?
Finally I read and re-read Joe’s post and I don’t see where he calls you dishonest. I’d be careful about the word “polemic” here – you’re not exactly carrying the day with your argument. And this from someone who has not been a fan of Ashcroft.
Also, on the topic of links and quotes: It would appear from the indictment that the quote which PD Shaw cited cannot be directly attributed to a communication facilitated by Stewart. There is, however, this (from the linked indictment above):
Recall that according to the NYT article linked by A.L., the Government has tapes of these meetings.
To lewy14, the indictment does indicate she may have committed breaches _outside the attorney client relationship_. As long as that’s in play then I’m not objecting to the indictment — though I do think she may have breached ethics and would like to see her first full trial be before the New York Bar.
The “Special Administrative Measures”:http://www.fas.org/irp/news/2002/04/ag040902.html were creations of the Justice Department, not Act of Congress or a judicial order, near as I can tell. Ashcroft says at much in this hyperlink. Given the interest in Justice in prosecuting Federal suspects it is a conflict of interest to be messing with counsels’ access. Of _course_ defense counsel will sign the SAMs to get at clients. (Mind you, this doesn’t excuse Ms. Stewart’s conduct. It does raise an interesting Sixth Amendment lawsuit further down the road.)
The tone of this thread, however, suggests a desire by some to do away with effective criminal defense counsel, or, worse, to identify the counsel with the criminal. That could be disastrous if it becomes a working rule of thumb.
Of course, I won’t carry the day if I argue for a Constitution that is already half-forgotten, or dismissed as a peacetime luxury. I fear that argument has been lost.
Finally, here’s the money quote, “but the goal of their criminal system is NOT to convict come what may, and your characterization of their legal tradition as such is dishonest.” Dishonesty uttered is dishonesty borne, and one should choose one’s adjectives carefully because they can reflect.
According to the original indictment, Stewart facilitated the communication of the “fight the jews and kill them” fatwa through her telephone conversations. (paragraphs 21r & 21s) In court yesterday, Stewart admitted that in one phone conversation she said “I’m for it,” but denies the meaning attributed to that statement. In any event, she argued that the lawyer-client relationship precluded any other response.
http://www.nytimes.com/2004/10/29/nyregion/29stewart.html
Bob, from your first post:
This is an extraordinary claim, and Joe calls you on it. “Extraordinary claims require extraordinary evidence” (Sagan, I believe, as long as we’re hurling quotes around). Is this really your assessment of the “Continental” legal system? I think the burden of furnishing a dispositive hyperlink is on you in this case.
As a cycling fan who followed the French judicial inquiry into doping allegations against Lance Armstrong, I became more familiar with the French legal system than I ever cared to be. I’m no fan of it but to assert this system is composed of “judge and council who are seeking to convict come what may” is insupportable.
N.B that if the SAMs were a construct of the Justice dept., that would not have been under Ashcroft, but Reno (with whom I am equally enamored).
Finally with respect to the “tone” of the thread: I detect a great deal of hostility towards Stewart (not undeservedly). I don’t detect any support for the elimination of defense council. Support for the use of the Constitution as a doormat is less widespread than you may believe.
Lynne Stewart crossed the line of attorney-client privelege, aided and abetted a convicted terrorist and thereby commited treason. Although she wasn’t charged as such by the government, it doesn’t change what she did. Lynne Stewart should be hung for treason (although, I would prefer she be drawn and quartered in public).
Lynne Stewart crossed the line of attorney-client privelege, aided and abetted a convicted terrorist and thereby commited treason. Although she wasn’t charged as such by the government, it doesn’t change what she did. Lynne Stewart should be hung for treason (although, I would prefer she be drawn and quartered in public).
lewy14, If you have more knowledge of the French legal system, fine, my own experience is with U.S. jurisprudence and maybe I can concede the point on how French courts work — today. I do recommend “Origins of the Fifth Amendment”:http://www.amazon.com/exec/obidos/tg/detail/-/0029195705/qid=1099086982/sr=1-2/ref=sr_1_2/002-7527449-2745652?v=glance&s=books by Leonard Levy, which traces our jurisprudence from the days of the Charter up through the Framers, which suggests that the Bill of Rights didn’t jump full-grown out of their heads but was 500 years’ evolution, and in a different path than the Continent, which went from Roman law to Napoleonic and so on.
(BTW, I probably should have named a good English example of inquisitorial jurisprudence: the Court of Star Chamber.)
That book was what I had in mind, and that time period. I do highly recommend it.
I might remind you that the Continental court matter is a tangential comment to the main thread, which is whether Lynne Stewart is one extraordinarily bad lawyer or represents some sort of new case law affecting all criminal defense counsel.
As for extraordinary statements, “dishonest” is one exemplar, and that’s what he called me. “Far fetched”? Maybe. “In error?” Perhaps, and your post leads me to reconsider. But “dishonest” without backup suggests the usual _ad hominem_ reflex so common in US politics. And in any event, I happen to like our system of justice and do not want to see it destroyed. Joe’s comment _in that same post_ about some sort of separate proceeding for “enemy combatants” in US territory suggested an extra-Constitutional proceeding.
PS. You’re right about Janet Reno. Fair amount of nasty legislation came out of Clinton’s administration.
To Rob Lyman, “his lawyer doesn’t have the right to serve as a conduit for any message to anyone if the court so orders.” His lawyer is governed by “Rule 3.6”:http://www.abanet.org/cpr/mrpc/rule_3_6.html of the ABA rules — breach of ethics rules being grounds for disbarment — and please note that the “Special Administrative Measures”:http://www.fas.org/irp/news/2002/04/ag040902.html appear to be a Justice Dept. decree. If they had been a judge’s order she’d be up on contempt charges very fast — a lot faster than an indictment.
lewy14, If you have more knowledge of the French legal system, fine, my own experience is with U.S. jurisprudence and maybe I can concede the point on how French courts work — today. I do recommend “Origins of the Fifth Amendment”:http://www.amazon.com/exec/obidos/tg/detail/-/0029195705/qid=1099086982/sr=1-2/ref=sr_1_2/002-7527449-2745652?v=glance&s=books by Leonard Levy, which traces our jurisprudence from the days of the Charter up through the Framers, which suggests that the Bill of Rights didn’t jump full-grown out of their heads but was 500 years’ evolution, and in a different path than the Continent, which went from Roman law to Napoleonic and so on.
(BTW, I probably should have named a good English example of inquisitorial jurisprudence: the Court of Star Chamber.)
That book was what I had in mind, and that time period. I do highly recommend it.
I might remind you that the Continental court matter is a tangential comment to the main thread, which is whether Lynne Stewart is one extraordinarily bad lawyer or represents some sort of new case law affecting all criminal defense counsel.
As for extraordinary statements, “dishonest” is one exemplar, and that’s what he called me. “Far fetched”? Maybe. “In error?” Perhaps, and your post leads me to reconsider. But “dishonest” without backup suggests the usual _ad hominem_ reflex so common in US politics. And in any event, I happen to like our system of justice and do not want to see it destroyed. Joe’s comment _in that same post_ about some sort of separate proceeding for “enemy combatants” in US territory suggested an extra-Constitutional proceeding.
PS. You’re right about Janet Reno. Fair amount of nasty legislation came out of Clinton’s administration.
To Rob Lyman, “his lawyer doesn’t have the right to serve as a conduit for any message to anyone if the court so orders.” His lawyer is governed by “Rule 3.6”:http://www.abanet.org/cpr/mrpc/rule_3_6.html of the ABA rules — breach of ethics rules being grounds for disbarment — and please note that the “Special Administrative Measures”:http://www.fas.org/irp/news/2002/04/ag040902.html appear to be a Justice Dept. decree. If they had been a judge’s order she’d be up on contempt charges very fast — a lot faster than an indictment.
Rule 3.6 has nothing to do with it. She participated in a conspiracy to kill people and she is saying that it was her “duty” to do what her client told her to do. She essentially shouted “Fire” in a crowded theatre and then pointed to her duties to her client as an excuse. I’m mildly pissed off because she is saying that’s what lawyers do, denigrating the profession in general and defense lawyers in particular.
The SAM is authorized by regulation at 28 CFR 501.3. Regulations have the force and effect of law. The judge has already ruled that if she wanted to challenge the legality or scope of the SAMs, she was under a duty to raise that issue to the judge, not commit fraud and deceit to avoid the issue.
http://news.findlaw.com/hdocs/docs/terrorism/ussattar72203opn.pdf
Rule 3.6 has nothing to do with it. She participated in a conspiracy to kill people and she is saying that it was her “duty” to do what her client told her to do. She essentially shouted “Fire” in a crowded theatre and then pointed to her duties to her client as an excuse. I’m mildly pissed off because she is saying that’s what lawyers do, denigrating the profession in general and defense lawyers in particular.
The SAM is authorized by regulation at 28 CFR 501.3. Regulations have the force and effect of law. The judge has already ruled that if she wanted to challenge the legality or scope of the SAMs, she was under a duty to raise that issue to the judge, not commit fraud and deceit to avoid the issue.
http://news.findlaw.com/hdocs/docs/terrorism/ussattar72203opn.pdf
Rule 3.6 has nothing to do with it. She participated in a conspiracy to kill people and she is saying that it was her “duty” to do what her client told her to do. She essentially shouted “Fire” in a crowded theatre and then pointed to her duties to her client as an excuse. I’m mildly pissed off because she is saying that’s what lawyers do, denigrating the profession in general and defense lawyers in particular.
The SAM is authorized by regulation at 28 CFR 501.3. Regulations have the force and effect of law. The judge has already ruled that if she wanted to challenge the legality or scope of the SAMs, she was under a duty to raise that issue to the judge, not commit fraud and deceit to avoid the issue.
http://news.findlaw.com/hdocs/docs/terrorism/ussattar72203opn.pdf
Rule 3.6 has nothing to do with it. She participated in a conspiracy to kill people and she is saying that it was her “duty” to do what her client told her to do. She essentially shouted “Fire” in a crowded theatre and then pointed to her duties to her client as an excuse. I’m mildly pissed off because she is saying that’s what lawyers do, denigrating the profession in general and defense lawyers in particular.
The SAM is authorized by regulation at 28 CFR 501.3. Regulations have the force and effect of law. The judge has already ruled that if she wanted to challenge the legality or scope of the SAMs, she was under a duty to raise that issue to the judge, not commit fraud and deceit to avoid the issue.
http://news.findlaw.com/hdocs/docs/terrorism/ussattar72203opn.pdf
Indeed? Then it suggests that Ms. Stewart was extraordinarily sloppy as well, but her client is hardly in a position to sue her for malpractice.
And, yes, that is devastating for the profession, both because — amply demonstrated above — she has laid the whole criminal-defense specialty open to assault by Ashcroft, _and_ because she herself has failed to raise legitimate points of law on the SAMs’ validity.
Which is why I wanted to see her tried and disciplined by the New York Bar before she’s handed over for criminal prosecution. The points raised there will go far toward framing the issues and cutting her out of the herd.
Rule 3.6 applies in regard to lawyers’ comments to the press — and my own instinct in that position would be to mutter ‘no comment’ and go back to work on the written pleadings, which is what — from what you say — she didn’t do enough of. Yes she did have a duty — to her client and to the profession — to raise that issue to the judge, not engage in showboat diplomacy.
In the FWIW department, a “comment by Lloyd Cutler”:http://www.time.com/time/nation/article/0,8599,185167,00.html — I didn’t know he was around during the Quirin trial and that he drafted FDR’s executive order setting up that enemy-combatants procedure. On point here in light of Joe’s comment about a special procedure for national-security cases.
Worth noting that, yes, the Supreme Court did get to rule on ex parte Quirin (317 U.S. 1, 1942) but announced their ruling several weeks _after_ six of the defendants were electrocuted. (19 CONST. COMMENT. 261, if you can look it up on Westlaw or Nexis).