February 22, 2005 | National Review Online

Judge Not

An Ignorant Analysis of the Lynne Stewart Case

The New York Times last week offered a specious attack on Lynne Stewart's conviction in an embarrassingly ill-informed op-ed by Andrew Napolitano, Fox News's “Senior Judicial Analyst.”

A little background before we examine this commentator's latest wade out of his depth. Napolitano was once a midlevel state-court judge in New Jersey. Assuming for argument's sake that this experience is a sure sign of actual legal expertise, it would be an exceedingly narrow one: to wit, he might be thought an authority on the constitution and laws of the Garden State. Fox, however, has opportunistically chosen to ignore the “New Jersey” modifier in his former title and focus myopically on the “Judge” part. The network has adopted a convention whereby all Fox News correspondents refer to Napolitano on the air not by name but as “Judge.” He then proceeds to expound with glib certainty on all manner of legal issues, including matters of federal law, for which he appears to have little familiarity.

That the “Judge” is out of his league in these areas is often painfully obvious (see, e.g., Ramesh Ponnuru's dissection of Napolitano's shoddy op-ed on the Patriot Act last March). Fox's viewers, nonetheless, are led to believe they are recipients of pearls of wisdom from a jurisprudential giant. It's a good racket and has recently landed the “Judge” on the bestseller list with a tome, tirelessly hyped by Fox, that is presumptuously entitled Constitutional Chaos: What Happens When the Government Breaks Its Own Laws. (Hint: He's not talking about the government that sits in Trenton.)

Napolitano's latest op-ed should be called something similar. Maybe: “Chaos: What Happens When a Poseur Analyzes a Federal Prosecution.” This is a truly excruciating read. There are, no doubt, any number of highly qualified academics and defense lawyers who are sympathetic to the cause of Lynne Stewart — a defense lawyer convicted for actions arising out of purportedly providing legal services to a client — and who would have given their right arms in exchange for space in the New York Times's vaunted opinion page. The Gray Lady, instead, managed to find someone nearly incapable of getting a single fact right, much less of explaining the relevant principles.

Clearly, Napolitano was bent on attacking the prosecution (a “perverse victory in the Justice Department's assault on the Constitution”) as a travesty that (surprise!) just happens to be the very kind of “chaos” you can read about if you fork up the 20 bucks for his book. That being the case, he might have done what all actual federal judges, all competent practitioners, and even most law students would have thought to do: He might have read the indictment.

But that, of course, might have placed the facts in the way of the bombast. Not wishing to be so encumbered, the “Judge” maintains that Stewart was convicted of supporting terrorism and making false statements because of conversations with her client, the convicted terrorist Omar Abdel Rahman (a.k.a., “the Blind Sheik”), on which the government was able to eavesdrop because the notorious John Ashcroft unconstitutionally changed the law. As Napolitano puts it:

Just after 9/11, Attorney General John Ashcroft gave himself the power to bypass the lawyer-client privilege, which every court in the United States has upheld, and eavesdrop on conversations between prisoners and their lawyers if he had reason to believe they were being used to “further facilitate acts of violence or terrorism.” The regulation became effective immediately.

Of course, had Napolitano taken the few minutes necessary to read the indictment (which is freely available online), he might have learned that all of the conversations and actions that resulted in Stewart's conviction took place about two years or more before the post-9/11 regulation (which the, er, Judge, in any event, mischaracterizes). That is: before George W. Bush was president, before John Ashcroft was attorney general, and before 9/11 ever happened. This investigation was very ably conducted by, and took place under the auspices of incontestably proper regulations imposed by, the Clinton Justice Department.

As the indictment explains, and as those of us who actually followed the trial well know, Attorney General Janet Reno began curtailing the Blind Sheik's prison privileges in April 1997 — i.e., a year-and-a-half after his conviction. She did this by placing what were known as “special administrative measures” (SAMs) on his confinement. The SAMs sharply limited Abdel Rahman's ability to communicate with the outside world, which in his case was crucial to national security because of his unique ability to command the commission of terrorist attacks.

At the end of 1997, however, the Sheik's Egyptian terror organization brutally murdered 58 tourists in Luxor as part of a campaign to compel his release by extortion. Subsequently, the Reno Justice Department — again, entirely consistent with federal law — beefed up the SAMs, now prescribing that the Sheik would “not be permitted to talk with, meet with, correspond with, or otherwise communicate with any member, or representative, of the news media, in person, by telephone, by furnishing a recorded message, through the mails, through his attorney(s), or otherwise.”

In addition, Abdel Rahman's attorneys, including Stewart, were required in 1999 to sign an affirmation that they would abide by the SAMs. There was nothing novel about this given that, in May 1998, Attorney General Reno had required these lawyers to agree not to “use [their] meetings, correspondence, or phone calls with Abdel Rahman to pass messages between third parties (including, but not limited to, the media) and Abdel Rahman.” There was also nothing controversial about it because Abdel Rahman's case had long been over — he was no longer presumed innocent or meeting with lawyers to prepare his defense.

In May 2000, moreover, Stewart willingly signed an affirmation for the Reno Justice Department in which she agreed “to abide by [the] terms” of the SAMs then in effect on Abdel Rahman. As the indictment spells out, “In particular, STEWART agreed that she would 'only be accompanied by translators for the purpose of communicating with inmate Abdel Rahman concerning legal matters' and that she would not 'use [her] meetings, correspondence, or phone calls with Abdel Rahman to pass messages between third parties (including, but not limited to, the media) and Abdel Rahman.'”

Meanwhile, the meetings between Stewart and Abdel Rahman that became damning evidence in Stewart's trial all took place in 1999 and 2000 — while John Ashcroft was still a senator in Missouri. Leaving aside his cluelessness about when the meetings happened, Napolitano inanely labels Stewart's participation in them as “gibberish.” Actually, they were discussions with a master terrorist who had had a hand in murdering the last Egyptian president, and who had been convicted at trial of conspiring to murder the current Egyptian president, about the need to overthrow the current Egyptian regime. Specifically, they included consideration of whether the Sheik should call for the end of a tenuous ceasefire agreement — i.e., whether he should give the green light, as he uniquely could do, to a new round of terror attacks.

Not exactly a “legal matter” — even if it's the sort of thing that somehow strikes Napolitano as mere gibberish. It was only a month after signing the agreement not to pass messages from Abdel Rahman to the media when Stewart issued a press release announcing that the Sheik was “withdrawing his support for the cease-fire that currently exists.”

If anything, Napolitano's treatment of the relevant federal law is even more risible than his hopelessly inaccurate rendering of the facts. The post-9/11 Ashcroft regulation had utterly nothing to do with the Stewart case, but even had it been applicable, it is not, as Napolitano blathers, an instance of the Attorney General rather than Congress “writ[ing] federal criminal laws…with criminal penalties.”

To begin with, neither the SAMs imposed by Attorney General Reno nor the post-9/11 Ashcroft regulation are “criminal laws,” and neither impose “criminal penalties.” I am not competent to explain to Napolitano how state government is organized in New Jersey, but in the federal system we have government that is tripartite. The branches interact (“checks-and-balances”), but each has its own sphere of responsibilities (“separation of powers”). When a branch is acting within its own sphere, as the Justice Department is with respect to the custody of convicted federal prisoners, it is permitted to make its own regulations subject to the restrictions of the Constitution (e.g., the Eighth Amendment, barring cruel and unusual punishments) and any proper legislation. This is why, notwithstanding the good Judge's foot-stamping, Stewart and her very able lawyers were unable to get evidence of conversations with her client thrown out. There was nothing remotely unconstitutional about the Justice Department constricting the liberties of a convicted felon in the custody of its bureau of prisons.

None of these regulations, furthermore, has anything to do with “criminal penalties.” Criminal penalties are Congress's prerogative to define. Stewart was not convicted of violating a Reno or Ashcroft regulation. She was convicted of violating statutory offenses prescribed by Congress: the federal false statements law, and a federal law that forbids providing material support to terrorists. The penalties imposed at sentence will flow from those statutes, not from any Justice Department rules.

But wait a minute, Napolitano insists. “[T]he Sixth Amendment…grants all persons the right to consult with a lawyer in confidence.” Well, maybe someplace, but here in America the Sixth Amendment applies only to “criminal prosecutions,” and guarantees the assistance of counsel to an “accused.” Abdel Rahman's criminal prosecution ended with his conviction in 1995. It's been nearly a decade since he's been an “accused” (the judgment of conviction was entered when he was sentenced in January 1996, and his appeals were rejected in 1999). He did not have a right to counsel under the Sixth Amendment at all when he was conspiring — not consulting — with Stewart in 1999 and 2000. It is probable that, consistent with the Constitution, he could have been entirely barred from meeting with attorneys. As it is, however, the Justice Department determined to allow him that privilege and was well within its authority to impose reasonable restrictions on it.

Moreover, even when the Sixth Amendment does actually apply and where the attorney-client privilege is at issue, the attorney must be acting as an attorney to enjoy the benefits of confidentiality. Federal law, like the law of most states, has long recognized what is known as the “crime/fraud” exception to the privilege. Attorney-client communications lose their protection if they are in furtherance of an ongoing crime, as Stewart's clearly were.

Not so fast, splutters His Honor. What about the First Amendment? Napolitano inveighs that the prison regulations:

also violate the First Amendment's right to free speech. Especially in a controversial case, a defense lawyer is right to advocate for her client in the press, just as the government uses the press to put forward its case. Unless there is a court order that bars both sides from speaking to reporters, it should be up to the lawyer to decide whether to help her client through the news media.

Ms. Stewart's constitutional right to speak to the news media about a matter of public interest is absolute and should prevent the government from prosecuting her….

It's hard to figure where to begin… First, yes, Judge, the Sheik, and Ms. Stewart were once in a controversial case together. But it ended ten years ago — perhaps you read about it. Second, lawyers involved in a federal case do not, under the First Amendment, have an unqualified right, let alone an “absolute” right, to advocate for the client in the media or to opine generally about “a matter of public interest.” Even when a criminal prosecution is ongoing, the U.S. Supreme Court has, for many, many years, held that participants in the litigation may be tightly regulated in what they may disclose. Thus, most courts, including the U.S. District Court for the Southern District of New York, where Abdel Rahman was tried, have widely known local rules which restrict what counsel may say publicly. Lawyers may not be admitted to the bar of those courts without representing that they are familiar with and understand such rules.

Further, no one, including lawyers, has an absolute right to communicate freely with the press. A lawyer, for example, who learns of classified information in a litigation and reveals it to the press commits a serious felony. Similarly, a lawyer who disseminates information covered by a gag order may be jailed for contempt of court. And, most pertinently, an individual who happens to hold a law license but who is in fact functioning as a contributing member of an ongoing criminal conspiracy may be prosecuted — including for acts that further the conspiracy, such as communicating messages from a terror kingpin to his murderous underlings.

That leads us directly to the most breathtakingly moronic assertion in Napolitano's litany: “[S]ince when does announcing someone else's opinion about a cease-fire — as Ms. Stewart did, saying the sheik no longer supported one that had been observed in Egypt — amount to advocating an act of terrorism?” Well, ever since, Judge, there has been a “someone else” who runs a criminal enterprise and whose “opinions” are known to be the triggers of barbarous actions — in this instance, indiscriminate mass homicides.

Maybe Napolitano hasn't noticed lo these last, oh, 25 years or so, but when Abdel Rahman's opinions get announced, people somehow always manage to end up dead. Indeed, after the 9/11 attacks, Osama bin Laden told the press that the actions of Mohammed Atta and company were justified by a fatwa issued by the self-same Sheik from jail. Maybe we should let bin Laden alone, too. I mean, sure, 3,000 people were slaughtered, but, after all, he was just announcing someone else's opinion.

The Times ought to be embarrassed. Fox News ought to be more embarrassed.

Andrew C. McCarthy, who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others, is a senior fellow at the Foundation for the Defense of Democracies.