Back from the Brink

May 11, 2007

by 4struggle

BY LYNNE STEWART

Government apologists, critical of the opposition we have mounted declare that the Lynne Stewart case is “one of a kind”, and has had no chill effect. They even have gone so far as to say that my remarks are an attack on the defense bar, those who continue to represent the most despised. Nothing could be further from the truth.

Initially, my case is unique in the over-reaching techniques (invasion of the attorney client privilege, searching of my law office, computers, date and message books, use of evidence that was incendiary and not relevant at trial etc.) employed by the Government to gather “evidence” and convict. Also, the use of an executive department prison regulation (SAM) directed at my client, to glue together a criminal indictment by using overly broad conspiracy and terrorist theories was indeed unique, but may not remain so.

In the months since my sentencing, there has been an increase in the Government regulation of lawyers–in particular those who are representing so called terror suspects at Guantanamo and elsewhere. The playing field for adversary proceedings has shrunk from the size of a basketball court to a ping pong table and even then it is (at least in Guantanamo cases) only possible for lawyers to play doubles. Their partner? A Government lawyer of course, who is privy to most if not all defense strategy and also the interpersonal relationship of lawyer and client. It is an unwarranted intrusion and I believe, could not be accomplished were the Guantanamo lawyers, who labor in this Gulag, not painfully aware of “what they did to Lynne Stewart.” Lawyers, under oath, without any regulation, must act ethically. Why impose these heavy handed rules that do not permit the lawyer to do the work effectively by establishing trust and then exploring all possibilities with the client, alone? The answer is simple.

The government to perpetuate their own self righteousness of “saving” the world for democracy and relying on the fear of the “other” is exercising what they proclaim is a world wide commission by locking up their designated “bad guys” and throwing away the key. They will brook no interference from pesky lawyers.

Proof of this is found in recent events as they have been revealed to us. First, the Government assertion that Guantanamo detainees should not be allowed to talk to their lawyers about the torture inflicted upon them because the techniques are classified. They even went so far as to suggest that there should be no lawyers for 14 of the detainees. (Washington Post, New York Times, November 4, 2006) If indeed the muscle of repression is always flexing to limit challenges, this is another mark of our descent into state control. What could be more relevant to a defending lawyer than how the prosecution obtained inculpatory information? Indeed a murderer, accused of crime, is not only protected from use of torture (coerced confessions) but must be warned by officials of his/her right to remain silent. Here the government asks the Courts to “protect” its methods and to do so by burying, without voice, those who would dare complain!! This is not a proposed shrinkage of the right to counsel but a disappearing of it.

We also have seen the rant of a high ranking defense department official, Cully Stimson, Deputy Asst. Secretary of Defense for detainee affairs (Charles ‘’Cully’’ Stimson has since resigned his Defense Department post as deputy assistant secretary for detainee affairs.). He invokes the fear of the loss of the almighty dollar when he calls upon CEO’s to check out the big law firms who are providing pro bono representation to Guantanamo prisoners. In that narrow shadowy world that is the Bush administration, Stimson assumed that Corporate America was in their pocket (and it may well be!!) and could be “enlisted” to “control’ if not eliminate those annoying lawyers!! While Mr.Stimson has now apologized, the horse has still been stolen. The New York Times (1/13/2007) commented on its editorial page that even for the Bush administration’s notions of justice, this was a new low and called for Stimson’s firing. It seemed to me that it is the logical conclusion of everything since the enactment of the Patriot Act. And even after an apology, wasn’t this the rallying cry?

And hasn’t it thus been ever in US history??

The latest escalation of the domestic war on the defense lawyers is revealed in the book form “Guide”, authored by the Pentagon (the adversary/prosecution) for the conduct of the “trials” now scheduled for eight detainees who ostensibly have ties to Al Qaeda. (Washington Post, 1/18/07) Replete with gross violations of due process (hearsay evidence, tortured confessions, and more), this guide is the script for performance of show-trials and the defense lawyer better learn the proper lines and stage directions. What punishment for deviating? Just look at what happened to Lynne Stewart.

This is never to say that the brave and thankless work performed by the lawyers for the despised is anything less than the best it can possibly be under the circumstances. Many of those who represent the detainees at Guantanamo are those who are in the forefront politically in denouncing the restrictions placed upon them. And the highest praise is due to the lawyers in the Public Defender’s Office for the federal district court in Miami and New York lawyer Andrew Patel for their no-holds barred defense of Jose Padilla based in part on the isolation, mental and physical torture he sustained and still suffers from. The work goes on because defense lawyers are a dedicated group. Yet, I don’t believe that any one of these would not agree that their role has been diminished and that there is a certain fear level implicit in each decision they make.

Finally, in a recent story from the heartbreaking Battle of New Orleans, longtime National Lawyers Guild lawyer and professor at Loyola Law School, Bill Quigley has been threatened by his adversary, if he doesn’t stop speaking out.

The issue involves the razing of low income public housing while tens of thousands of poor, mostly Black New Orleans refugees are kept far from home. The New Orleans Housing Authority has written to Bill that if he doesn’t remove statements from a web site and stop speaking publicly, they will report him to the Disciplinary Committee. In the finest tradition, he has said that the matter is of the greatest public interest, locally, nationally and internationally and that he will not be gagged by those interests seem to want to enwhiten, what was and can be again a great Black city.

All of these recent events involving the “lawyers” underscore the importance of the ongoing struggle in my case. The sentencing gave the Government pause, but it is only a victory on appeal that can strengthen the inviable role of defenders against predatory government.