Socialist Viewpoint

Indicted attorney Lynne Stewart and her co-defendants get no assurances that conversations with their lawyers, or any other communications, are free of monitoring by the federal government, a Southern District of New York judge ruled on August 8. Judge John G. Koeltl rejected an argument made by Stewart that even the possibility of monitoring implicates her Sixth Amendment right to effective assistance of counsel.

The ruling was a setback for Stewart as well as co-defendant Ahmed Abdel Sattar, two of four people charged with conspiring to provide material support for a terrorist organization by helping imprisoned Sheikh Abdel Rahman communicate with his followers in The Islamic Group. Sattar, who is also charged with soliciting crimes of violence, is being detained at the Metropolitan Correctional Center. Defense Attorney Kenneth Paul argued that since the indictments against Sattar were obtained in part because of court-authorized monitoring of the sheikh’s prison conversations, it was impossible for him to communicate freely with Sattar without assurances that their conversations were not being taped.

Paul was concerned about three possible scenarios under which the attorney-client talks could be taped. The first scenario is pursuant to a conventional Title III warrant based on a showing of probable cause to a federal judge. The second scenario is pursuant to a court-approved warrant issued under the Foreign Intelligence Surveillance Act (FISA), and the third is under new regulations announced by U.S. Attorney General John Ashcroft last fall. The regulations allow monitoring, without a warrant, for prisoners placed under special administrative measures who meet certain criteria. Unlike Title III and FISA, the new regulations require notice to the party that their conversations are being monitored.

At a hearing before Koeltl last month, Paul received assurances from the government that it would comply with notice provisions of the new regulations should the Justice Department decide to apply them to Sattar. While Sattar expressed satisfaction with those assurances, Stewart and her lawyer, Michael Tigar, pressed ahead, saying that they would be unwilling to even meet with Paul and discuss a joint defense without a promise that there was no monitoring, either of Sattar behind bars or of Stewart’s own communications. But Stewart, Judge Koeltl said, cited “no authority for the proposition that a bare fear of surveillance, without more, is sufficient to establish a constitutional requirement that the government disclose whether it is engaging in any court-authorized surveillance of a criminal defendant under Title III or FISA.”

The government “correctly noted,” Koeltl said, that Title III and FISA “allow for surveillance without prior notification precisely because such monitoring can often only be effective if the targets are unaware that they are being monitored.” Both acts, he said, have provisions to protect the confidentiality of attorney-client communications, and the “government has represented in this case that, if any privileged communications were intercepted, screening devices would be used to ensure that the interceptions were not used against the defendants and, thus that their Sixth Amendment rights would not be violated.”

In another ruling, Koeltl denied a motion by Tigar to conduct an evidentiary hearing into how an affidavit supporting the search warrant for Stewart’s offices came to be left in a public file in the Southern District clerk’s office, when all files in the case were supposed to be under seal. Although Tigar had raised the specter of government misconduct, Koeltl rejected any claim that prosecutors intentionally leaked the affidavit to the press. Assistant U.S. Attorneys Joseph F. Bianco and Christopher J. Morvillo represented the government.

—New York Law Journal, August 9, 2002