National Security and the First Amendment: The Special Responsibility of Defense Attorneys

BY CLAIRE RUMLER — Lawyers, especially criminal defense lawyers, represent an integral component of the American justice system. Their job is to ensure that no person be arbitrarily imprisoned, and fight to protect the rights of clients- rights that all people in the United States are guaranteed, regardless of their guilt or innocence or social class. Defense attorneys, in short, have the responsibility of protecting one of the most fundamental freedoms of the United States. As a result, defense attorneys have a special responsibility to uphold the Constitution and the Nation that they protect. Although they might disagree with the government, they have a special obligation not to undermine it, and any action a defense attorney may take to undermine national security should not be protected by the First Amendment. Take, for example, the case of Lynne Stewart.

After the 1993 bombing of the World Trade Centers, the FBI began to investigate a man named Oman Abdel-Rahman. The FBI recorded him issuing a fatwa – a legal judgment under Islamic law- encouraging attacks on the UN Headquarters, the Lincoln Tunnel, the Holland Tunnel, the George Washington Bridge, the FBI headquarters, numerous Jewish targets, US Senators, and the Egyptian President. He was arrested shortly thereafter.  Lynne Stewart, a criminal defense attorney known to represent poor and “unpopular” clients, agreed to represent him.

As part of Stewart’s defense, as well as her work for several years on post-conviction issues, she was subject to modified special administrative measures,  “SAMs,” which governed the communications she was allowed to have with Rahman. Stewart had agreed that, in order to be granted permission to visit Rahman in prison, she would not use their meetings, correspondence, or phone calls to pass messages between third parties. After September 11, the SAMs were modified to prevent communications that could endanger national security or lead to acts of violence and terrorism. Stewart violated these SAMs, and was convicted of providing material support to terrorists, defrauding the United States, making false statements, obstructing the Department of Justice, and several other federal charges. Her conviction was upheld on appeal, and rightly so.

Stewart and her followers argued that the speech was protected under the First Amendment.  The Courts, however, including the Stewart court, have held that “words that are “the very vehicle of [a] crime” are not protected “merely because, in part, [the crimes] may have involved the use of language.” United States v. Stewart, 590 F.3d 93, 115 (2d Cir. 2009), quoting United States v. Rowlee, 899 F.2d 1275, 1278 (2d Cir.). Under that principle, Stewart used words to violate the SAMs that were put into place to protect national security, and therefore could not be protected.

Stewart’s conviction is especially poignant in light of the fact that words and speech are the fundamental tools of the legal practice. She used those tools to undermine everything that her practice stood for: preserving the rights of even the most unpopular defendants who many would say did not deserve them. The Stewart case is an example of the notion that criminal defense lawyers have a unique duty to preserve the freedoms provided in the Constitution and to protect national security. Criminal defense attorneys have a duty to advocate for their clients and preserve their rights, regardless of how odious the clients may be. However, defense attorneys also have a the responsibility to protect national security, and be aware that the rights of their clients are not absolute, especially in a post-9/11 world.

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