Lets Indict All the Lawyers

[InfoSec News <isn () c4i org>]

Forwarded from: Marjorie Simmons <lawyer () carpereslegalis com>

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
lawyer () carpereslegalis com
______________________________________________________

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.


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