The Reality of Political Prisoners in the United States: What September 11 Taught Us about Defending Them

DEFENDING THE "UNPOPULAR CLIENT," THE CLIENT WHO HAS BEEN TARGETED BY the government as a terrorist, a cop killer, a bank robber, a revolutionary, or the "the sole white member of the Black Liberation Army" does not get you nominated to the list of America's 100 Most Influential Lawyers. Nonetheless, the Constitution and accepted ethical and criminal procedure norms guarantee that every defendant is entitled to legal counsel and zealous advocacy. That is what is taught in law school, but is that what is meant? Recent legislation has raised serious doubts as to whether we can continue to take these principles for granted. How else can we explain the recent unprecedented arrest and indictment of New York lawyer, Lynn Stewart, a zealous advocate who is well respected among members of the bar and bench? (1) Ms. Stewart has represented numerous "unpopular" clients. Some of them have clear political ideologies, such as David Gilbert, who was charged as a former member of the Weather Underground with the 1981 Brinks armored car robbery in Nyack, New York. Also included were Bilal Sunni-Ali, a member of the Republic of New Africa, who was charged in the 1981 Brinks case in a federal prosecution and Richard Williams, who was alleged to have conspired with members of the Ohio 7 to blow up several military buildings and offices of major corporations. Gilbert and Williams were convicted in 1983 and 1986, respectively, and remain incarcerated today as political prisoners. Sunni-Ali was acquitted in an emotional and political upset for the U.S. Attorney's Office for the Southern District of New York. At that time, none other than Rudolph Giuliani directed the office. Ms. Stewart has been a thorn in the side of prosecutors for over two decades. It seems that the time for revenge has arrived. No wonder the U.S. attorney general boldly announced at a press conference following her arraignment that the federal government has been monitoring conversations between Stewart and her client, Sheikh Omar Abdel-Rahman, from at least as far back as May 2000. Even the most conservative observer would concede that the U.S. Patriot Act was not signed into law until October 26, 2001. A scrupulous review of its provisions will reveal no specific reference to monitoring of attorney-client communications. Upon what authority did the government rely in determining that it could monitor undisputed attorney-client communications in May 2000? Attorney General John Ashcroft shamelessly admitted that Ms. Stewart's conversations with her client were surreptitiously wiretapped during a prison visit that took place two years ago. Before October 30, 2001, the Bureau of Prisons regulations on institutional management authorized the Bureau to impose special administrative measures with respect to specified inmates. These administrative measures had to be based on information provided by senior intelligence or law enforcement officials, where it was determined to be necessary to prevent the dissemination either of classified information that could endanger the national security or of other information that could lead to acts of violence and terrorism. (2) However, those regulations did not contemplate that communications between an inmate and his or her attorney would be subject to the usual rules for monitoring of inmate communications. On October 30, 2001, the Department of Justice instituted new regulations that amended certain key provisions. Beyond extending the time during which a prisoner could be subjected to special administrative measures from 120 days to up to one year, the new regulations provide, d) In any case where the Attorney General specifically so orders, based on information from the head of a federal law enforcement or intelligence agency that reasonable suspicion exists to believe that a particular inmate may use communications with attorneys or their agents to further or facilitate acts of terrorism, the Director, Bureau of Prisons, shall, in addition to the special administrative measures imposed under paragraph (a) of this section, provide appropriate procedures for the monitoring or review of communications between that inmate and attorneys' agents who are traditionally covered by the attorney-client privilege, for the purpose of deterring future acts that could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons. …