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As a handful of Sept. 11-related terrorism cases begin working their way through the courts, the Justice Department has taken an aggressive approach to limiting defendants’ access to lawyers. The government says it’s a matter of national security. Defense lawyers say the government is interfering with criminal defendants’ right to counsel. Judges so far have tended to favor defense lawyers, giving the government only some of what it wants. “There is a basic theme that runs through all of these cases,” says Neal Sonnett, a former federal prosecutor and past president of the National Association of Criminal Defense Lawyers. “The theme appears to be a distrust of lawyers or an attempt to cut lawyers out of the process.” Recent challenges to the government involve: � Restrictions to lawyer’s access in the case of Richard Reid, the alleged “shoe bomber.” � Whether Yaser Esam Hamdi, a dual Saudi-U.S. citizen who was arrested in Afghanistan and is being held in Virginia, should be allowed to have a lawyer at all. Reid is accused of trying to blow up a Paris-to-Miami American Airlines flight last December by lighting the fuse of a bomb in his shoe. In March, his lawyers started litigation over the government’s use of special administrative measures, called SAMs, which can be imposed under rules of the attorney general. In a 13-page document outlining the measures, the government originally sought to regulate Reid’s confinement conditions and restrict his access to his lawyers. Among other things, the government wanted to prevent the nonlawyer staff of the federal defender’s office, which represents Reid, from having any contact with him. The government also sought to prohibit defense experts, such as a psychiatrist, from meeting with him. The U.S. Attorney’s Office tried to require the federal defender representing Reid, Owen Walker, to review and sign an acknowledgment of the special measures as a condition of allowing him to communicate with Reid. Walker refused to sign, and the government cut off all communication with his client. He filed a motion seeking an emergency hearing saying that Reid’s Sixth Amendment right to counsel was being violated. At a March 25 hearing, the government argued that the restrictions were legal and necessary for national security purposes. District Court Chief Judge William Young voiced skepticism about the authority of the government to impose the SAMs — suggesting they apply to pretrial detainees rather than convicted prisoners. However, he fashioned a protective order that put limits on the defense lawyers’ access while permitting them to visit and speak with Reid. They were forbidden to repeat to third parties the substance of anything that Reid told them, for example. The judge ordered the two sides to work out the details. Attempts to negotiate failed. In May the federal defenders sought an order to dissolve the protective order. “That Congress has given the Attorney General, a federal defendant’s adversary, unilateral power to set rules for the conduct of the defense is a startling suggestion,” Walker wrote in court papers. In the course of restricting Reid’s lawyers from talking, U.S. Attorney Michael Sullivan revealed several details of his case against Reid in his responding papers. The government says it found evidence in the form of a hair and a palm print indicating that people other than Reid were involved in the bomb-making. They also wrote that Reid confessed to law enforcement agents and compromised himself in an e-mail to his mother, telling her that “what i am doing is part of the ongoing war between islaam and disbelief” and that he sent her the document he called his will “so that you can see that i didn’t do this act out of ignorance nor did i do just because i want to die.” In light of Reid’s alleged involvement in the terrorist organization al-Qaida, the government said he poses a national security risk and pointed to the al-Qaida training manual introduced in the embassy bombing trial in New York earlier this year. It tells its operatives to communicate with each other using invisible ink and ciphers to pass information. As to what information Reid might communicate to others via unwitting lawyers, a Justice Department spokesman declined to comment. The government wrote that it did not challenge the professionalism of the defense counsel but noted that “even the most honorable of individuals might become the inadvertent, unknowing and unwitting conduit for the transmission of nefarious messages, even when there is a good-faith belief that such communications are being made in pursuit of a client’s defense.” On June 3, the judge responded by again compromising between the two sides. He eased the restrictions on the federal defender’s access and ability to make a case on Reid’s behalf, while still maintaining some of the restrictions the government sought. U.S. v. Reid, No. 02-10013-WGY. LAWYERS AS CONDUITS In Virginia, the government’s fear that defense lawyers could be a conduit for information from al-Qaida operatives is also at the root of its argument in the prosecution of Hamdi. The federal public defender in Virginia, Frank Dunham, has clashed with U.S. Attorney Paul McNulty over a prisoner who is being held in the brig of the naval base in Norfolk, Va. Dunham went to court on May 29 to force the government to let him meet with Hamdi, who has not been charged with a crime. He was held in Cuba until his U.S. citizenship was discovered. The government says it wants to keep interrogating him as a prisoner of war. Hamdi v. Rumsfeld, No. CA 2:02cv348. The government objected to the public defender’s involvement and said the court lacked jurisdiction. It considers Hamdi an enemy combatant during wartime who can be held for the duration of the hostilities without an attorney. Government lawyers, in language similar to that used in the Reid case, pointed to the al-Qaida training manual and noted the provision that advises its members to pass concealed messages through unwitting intermediaries such as lawyers. On May 29, U.S. District Judge Robert Doumar of the Eastern District of Virginia ruled against the government, permitting a private, unmonitored meeting of the federal defenders and Hamdi. The judge wrote that the government, “could not cite one case where a prisoner of any variety within the jurisdiction of a United Sates District Court, who was held incommunicado and indefinitely, and who had filed a petition for a writ of habeas corpus, was denied access to an attorney or the right to file such a petition.” The U.S. Attorneys immediately filed a motion for an emergency stay and appealed to the 4th U.S. Circuit Court of Appeals. The argument was on June 4. As of press time, the court had not ruled. Dunham, the federal public defender trying to represent Hamdi, also represents Zacarias Moussaoui, who, the government alleges, was to be the 20th hijacker on Sept. 11, 2001. Dunham says the government has been cooperative in that case, though the special administrative measures may cause a serious problem because Moussaoui has asked to represent himself. “There’s no way Mr. Moussaoui can represent himself with the SAMs in place,” says Dunham. “He can’t call a witness. He can’t receive mail. The only people he can communicate with are his lawyers or the judge.” New Jersey is another venue for fights over lawyer-client access in terrorism-related cases. After Sept. 11, about 1,200 Arab and Muslim men were arrested and charged largely with immigration violations. Many were held in county jails in New Jersey, some for long periods of time. When the American Civil Liberties Union tried to get pro bono representation for detainees who did not have counsel, the government refused to release their names. In March, a state judge in New Jersey ruled that the government had to reveal their names. The government obtained a stay, and the matter is on appeal. Court rulings so far have largely, but not entirely, checked the government. Mary Cheh, a professor of criminal procedure and constitutional law at George Washington University Law School, thinks the dust hasn’t settled enough to tell whether the government has pushed further than judges will ultimately allow. “I don’t think there’s been the same kind of reaction you’d have gotten prior to September, because people understand there’s a different threat,” she says. “Everyone’s a little wary.” Defense lawyers continue to call attention to what they say has been unacceptable meddling. Randall Hamud, a San Diego lawyer who has represented three men taken into government custody as material witnesses — two of whom are now out — says he was denied access to his clients on several occasions. Similarly, lawyers for John Walker Lindh, the alleged American Taliban fighter charged with treason after being captured in Afghanistan, complained about not being given prompt access to him. Although it is being challenged in court, the DOJ created a regulation about two months after Sept. 11 that permitted it to monitor conversations between attorneys and suspects without notice and without having to obtain a search warrant. A New York attorney is challenging the regulations. THE STEWART CASE The government’s intervention against suspects appears to stem largely from its investigation into New York attorney Lynne Stewart, who is charged with conspiracy and providing material support for terrorism. Stewart represented Abdel-Rahman, who was convicted in 1995 of conspiracy in relation to the 1993 bombing of the World Trade Center and a plot to bomb city landmarks and tunnels. Abdel-Rahman was subject to the special measures, and Stewart was indicted for allegedly having violated them by speaking English to mask Arabic conversations between her client and a translator. She has pleaded not guilty. Sonnett, the criminal defense lawyer, says of Stewart, “She wasn’t charged until the government found it necessary to find someone to justify their measures.” The Justice Department, citing the pending litigation, declines to comment on its methods or strategy.

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