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U.S.: Antiterror Law Likely To Face Constitutional Challenge

  • Andrew Tully

About five months ago, U.S. President George W. Bush signed legislation that gives new surveillance powers to law-enforcement officials fighting the legal war against international terrorism. Critics say the law gives the government more power than is justified by the country's constitution. Now that law is likely to be tested in America's courts. As our correspondent reports from Washington, the outcome is by no means certain.

Washington, 11 April 2002 (RFE/RL) - Civil liberties advocates say the recent indictment of an American lawyer suspected of helping her client lead a Middle East terrorist group is evidence of a further erosion of citizens' rights since 11 September.

Since the day after the terrorist attacks in New York, Washington, and Pennsylvania, these advocates have been urging the administration of President George W. Bush not to be too zealous in its efforts to protect the American people and to bring the killers to justice.

Six weeks after the attacks, Bush signed a new law called the USA Patriot Act, which gives law enforcement and intelligence agencies new powers of surveillance that critics say exemplify their initial fears. And on 9 April, these new powers were brought to bear on Lynne Stewart, a New York lawyer.

Stewart is among a small group of lawyers who have earned a reputation as mavericks, defending clients whom other lawyers might avoid because of the nature of the crimes they are accused of committing. For example, Stewart has defended notorious domestic terrorists and leading members of American organized crime.

Throughout her career, Stewart has insisted that her choice of clients is based solely on her belief that every defendant deserves the most vigorous legal representation he can get, regardless of the charges.

One of Stewart's clients is Sheikh Omar Abdel-Rahman, a blind Muslim cleric who is a leader of the "Islamic Group," said to be a terrorist organization linked to Al-Qaeda. Abdel-Rahman is serving a life term in the U.S. for helping lead the conspiracy to bomb the World Trade Center in 1993 -- the same building complex that was destroyed on 11 September.

Stewart is accused of relaying messages from Abdel-Rahman to the outside world while the sheikh was being held in a prison in Minnesota. Abdel-Rahman is forbidden to communicate with his followers. If convicted, Stewart could be sentenced to up to 20 years in prison. Stewart has pleaded not guilty. Three other people face the same charges.

When he announced the indictment on 9 April, U.S. Attorney General John Ashcroft did not say how the government knows the nature of Abdel-Rahman's communications with Stewart. But he said this case will be the first use of new surveillance powers in the USA Patriot Act that permit the monitoring of conversations between prison inmates and their lawyers.

Ordinarily, this would be a violation of what in America is known as "attorney-client privilege." This is the legal guarantee in the U.S. that any communication between a lawyer and his client may not be revealed to anyone else without the client's permission. The privilege is meant to encourage free communication between the two to ensure the best possible legal representation.

Ralph Steinhardt, a professor of law at George Washington University in Washington, said he cannot comment on the merits of the case against Stewart, but he told RFE/RL that it is not unheard of for a lawyer to become too involved with his client and his client's illegal behavior. For example, he says some lawyers have been known to instruct clients on the most efficient ways to evade taxes with little chance of detection.

But Steinhardt said that if the government monitored Abdel-Rahman's conversations with Stewart to build a case against the lawyer, then this element of the USA Patriot Act probably will face a court challenge, and a judge may rule it unconstitutional.

"I don't think it is legal, and I suspect that if the Patriot Act is interpreted to allow that, that it will be ruled an unconstitutional interference with the attorney-client privilege," Steinhardt said.

According to Steinhardt, unless this section of the act is challenged, then it will become increasingly difficult for lawyers to represent their clients effectively.

"I think what's threatening about what the United States government has done here is to acknowledge that it listened in on privileged conversation. So that it's not so much the indictment that's the problem, it is the way that information was gathered, which will make it extraordinarily difficult now for lawyers in high-profile cases to assure their clients that they can be completely open in their communications with their lawyers," Steinhardt said.

Matthew Spaulding is not so concerned about the possible implications of the USA Patriot Act. He argues that the United States is now at war with terrorists who he says are committed to bring down the very legal values that protect most people whom the U.S. government has charged with crimes.

Sometimes, Spaulding told RFE/RL, American law-enforcement officials must suspend some rules that protect defendants in order to protect the country's legal system overall.

"To what extent does someone who is essentially at war with the rule of law have rights under the rule of law?" Spaulding said.

But Spaulding said it is important not to use such cases as precedents for future cases that involve people who are charged with ordinary crimes, not acts designed to weaken America's national security.

"I don't mean to make a broad statement that the ends justify the means. What I'm suggesting is that, under extraordinary circumstances, especially where national security is involved, these are circumstances in which we have to think about some exceptions," Spaulding said.

Whatever the ultimate fate of the USA Patriot Act, one thing is certain: It will face a serious challenge by advocates who believe that the American government should have limited power over its people.