We Should Have Gone to Med School: In the Wake of Lynne Stewart, Lawyers Face Hard Time for...

INTRODUCTION

A federal jury in Manhattan convicted Lynne Stewart, a New York civil rights lawyer and self-proclaimed radical,1 on February 10, 2005 "on all five counts of providing material aid to terrorism and of lying to the government when she pledged to obey federal rules that barred her

client, Sheik Omar Abdel Rahman from communicating with his followers."2 With this conviction, the Justice Department scored a major victory in its War on Terror, by applying to attorneys the statute proscribing material support to terrorism. Attorney General Alberto Gonzalez stated "[t]hese convictions 'send a clear, unmistakable message that this department will pursue both those who carry out acts of terrorism and those who assist them with their murderous goals.'"3 Stewart faces thirty years in prison and was immediately disbarred as a result of her felony conviction.4

Both the news and the legal community5 have closely followed Stewart's case, with pundits and scholars considering the motivations behind her prosecution and how it affects the legal community. Stewart's case implicates diverse issues including political,6 constitutional,7 and ethical issues.8 Her conviction creates a grave danger of chilling legal representation for accused terrorists due to the lack of clear guidelines and notice regarding the application of criminal statutes to the lawyers who defend them.

Times of national crisis exacerbate the persistent tension between civil liberties and national security.9 The terrorist attacks of September 11, 2001 sparked our current national crisis, upsetting the balance once again. Stewart's conviction will weigh on this very delicate balance of ensuring civil liberties while protecting national security. It also will have serious repercussions for attorneys who defend clients accused or suspected of terrorist activity. Section I of this Note begins with a brief discussion of Lynne Stewart's case. Sections II and III survey anti-terrorism legislation and explain how the government may apply it to attorneys. section IV concludes that the government's decision to prosecute attorneys for providing material support to terrorism at best will disadvantage defendants accused of terrorism and at worst will discourage representation of accused terrorists altogether.

I. LYNNE STEWART'S CASE

Lynne Stewart is the first attorney accused and convicted of providing material support to terrorism under the 1996 Antiterrorism and Effective Death Penalty Act ("AEDPA"), 18 U.S.C. 2339B, based on her actions as counsel.10 The government charged her with, among other things, "conspiring to provide material support or resources to designated foreign terrorist organizations in violation of 18 U.S.C. 2339B, [and] providing such material support and resources."11 Stewart was found guilty of providing personnel to Gama'a al-Islamiyya, or, the Islamic Group (the "IG"),12 by acting as a liaison between her client, convicted terrorist Sheik Omar Abdel Rahman (a.k.a. The Blind Cleric), and the IG.13

Rahman, a convicted terrorist and figurehead of the IG, '4 was incarcerated and placed under Special Administrative Measures ("SAMs") in order to protect against future acts of death or serious bodily injury.15 The SAMs prohibit him from communicating with anyone outside the prison except his lawyers and his wife.16 Stewart knew that Rahman was under SAMs, having twice signed and twice breached an agreement to honor them.17 Stewart testified at her trial that "she was acting within an unwritten lawyer's 'bubble' in the prison rules that allowed her to defend her client as she thought best."18 The jury found that Stewart facilitated communication between Rahman and the IG by concealing conversations between Rahman and another member of the IG19 and by issuing a press release on behalf of Rahman.20

Taped conversations between Stewart and Rahman show Stewart asking Rahman innocuous questions regarding his treatment in prison and making small talk via an Arabic interpreter. Translation of the tapes revealed that Stewart feigned conversation with Rahman by posing non-sequiturs to cover exchanges between Rahman and the translator.21 Stewart also issued a press release on behalf of Rahman, conveying his opposition to a cease fire in Egypt by calling a reporter for Reuters in Cairo, who wrote the story that same day.22 The SAMs, as acknowledged by Stewart, prohibited both these actions.23 As a result, the government successfully charged Stewart with providing material support to terrorism despite the government's failure to prove "that any violence resulted from [her] actions" or that the IG canceled its ceasefire as a result of the Egyptian press release.24

II. ANTI-TERRORISM LEGISLATION

The September 11 terrorist attacks ignited the "War on Terror," and the United States government made national security both the government's priority as well as an umbrella justification for its actions, even at the expense of civil liberties.25 Former Attorney General John Ashcroft soon thereafter articulated the government's goal as preventing future acts of terrorism.26 In this context, Congress passed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the "Patriot Act"),27 which greatly expanded the government's powers both by amending existing anti-terrorism legislation and by creating new means for the government to prevent acts of terrorism. Recognizing that the dust is still settling, this section reviews existing laws relevant to Lynne Stewart's case, addresses constitutional and common law objections to these laws, and presents the government's responses.

A. THE LAW TO DATE

The Foreign Intelligence Surveillance Act ("FISA"), passed in 1978, was the first act authorizing warrantless surveillance of communications where the purpose of the investigation is to provide for foreign intelligence.28 The Patriot Act amended FISA to facilitate the collection of foreign intelligence providing "that 'foreign intelligence' need not be the purpose of the investigations seeking orders under the Act, but merely a 'significant purpose.'"29 The Patriot Act also "greatly expanded the class of suspects," to include those suspected of domestic or foreign terrorism.30 The Patriot Act thus gave the government broader authority by relaxing the standards under which it could monitor conversations and by broadening the definition of people it could monitor.

The government has explicit authority to surveil conversations between prison inmates and attorneys.31 "On October 30, 2001, the Justice Department unilaterally imposed a requirement on federal correctional facilities that would allow correspondence and private conversations between prisoners and their counsel to be monitored in most situations."32 Not limited to terrorists, the "Bureau of Prisons Regulations" apply to all incarcerated individuals. Therefore, monitoring of communication and mail between prisoners and their attorneys is permitted if the Attorney General certifies that "reasonable suspicion exists to believe that an inmate may use communications with attorneys or their agents to further or facilitate acts of violence or terrorism."33 Privilege teams review the monitored communications for the suspected intelligence that prompts the monitoring, thereby respecting the privileged nature of the communication.34 The government need not disclose monitoring if doing so would undermine investigations by tipping off the targets.35

Attorneys often have more contact with inmates than any other individual. To ensure that attorneys do not facilitate or further their clients' acts of terrorism, these Bureau of Prisons Regulations also allow the government to use SAMs to restrict attorneys' actions and monitor the conversations with their clients.36 The primary purpose of the imposition of SAMs is to limit a prisoner's communication with the outside world when the prisoner is deemed to pose a threat to life or safety.37 Usually, an inmate placed under SAMs may communicate only with immediate family and his attorney.38 The government may also ask attorneys to sign agreements to abide by SAMs so as to prevent the attorney from passing on the inmate's messages.39 The goal is to prevent a terrorist from using an attorney as a vehicle for promoting plans of future violence or from concealing such plans from the authorities.40

Section 2339A makes it a crime to provide material support or resources to a foreign terrorist organization or to conspire to do so.41 Material support includes providing personnel.42 The original purpose of criminalizing the provision of personnel was not to prosecute attorneys, but instead to deter individuals from providing themselves as personnel or from supporting another's employment with a terrorist organization through private donations.43 The government did initially attempt to prosecute Stewart for providing herself as personnel to a terrorist organization by acting as Rahman's, and hence, the IG's, attorney.44 The district court in United States v. Sattar45 rejected the government's argument that a lawyer provides herself as personnel to a terrorist organization when she represents a terrorist as unconstitutionally vague and overbroad.46 The government then succeeded in charging Stewart with providing personnel (Rahman) to the IG by acting as a conduit between him and the IG when she violated the SAMs.47

In sum, the terrorist attacks of September 11, 2001 resulted in the amendment of old laws and passage of new ones to enhance the government's authority to prevent future terrorist acts. The Patriot Act and the Bureau of Prisons Regulations allow the government to monitor domestic and foreign inmates perceived as posing a threat of violence, not just terrorism. SAMs may restrict attorneys' actions, compelling them to abide by the terms of the SAMs imposed on their clients. Finally, 18 U.S.C. 2339A may be applied to attorneys who act as a liaison between convicted terrorists and the outside world.

B. RECONCILING LAWS WITH THE CONSTITUTION AND COMMON LAW

Opponents of anti-terrorism legislation claim that such legislation is a violation of civil liberties, raising both Constitutional and common law challenges. This section discusses how the anti-terrorism legislation is in tension with the Sixth Amendment right to counsel, the Fourth Amendment probable cause standard for searches, the First Amendment freedom of association, the attorney-client privilege, and the principle of zealous advocacy. This section also explores the government's responses and rationales with respect to these civil liberty concerns.

The Sixth Amendment right to counsel guarantees a federal criminal defendant an absolute right to effective counsel, irrespective of guilt or innocence.48 Anti-terrorism legislation encroaches on this right. The American Bar Association ("ABA") stated that monitoring attorney-client conversations, without a requisite showing of probable cause to believe criminal activity is occurring, violates the attorney-client privilege and infringes on a suspect's Sixth Amendment right to counsel.49 Effective counsel requires open communication between the attorney and client without fear of monitoring or reprisal. A belief on the part of either client or attorney that the government is monitoring a conversation and that the content of the conversation could be used against either the client or the attorney will hamper an attorney's ability to prepare for and present her client's case. The Justice Department counters that there are no Sixth Amendment concerns implicated in monitoring attorney-inmate conversations when the government "possesses legitimate law enforcement interests ... as long as the conversations are not disclosed and none of the information revealed during the monitoring is used in a manner that deprives the client of a fair trial."50

Fourth Amendment violations are implicated by the government monitoring of conversations. Because electronic monitoring of conversations constitutes a search, according to the Fourth Amendment, the government must have probable cause and prior judicial approval before monitoring.51 The Bureau of Prison Regulations authorize monitoring on the lower standard of reasonable suspicion, and do not require prior judicial approval, merely the permission of the Attorney General.52 The ABA's position is that "prior judicial approval and the establishment of probable cause-the standard embodied in the Fourth Amendment-and not 'reasonable suspicion,' are required if the government's surveillance is to be consistent with the Constitution and is to avoid abrogating the rights of innocent people."53 The government has attempted to circumvent the Fourth Amendment requirement by claiming that the monitoring is for the purpose of collecting foreign intelligence, an area under the purview of the executive.54

Although courts have traditionally avoided this issue by finding that "the judicial branch is ill-suited to the task of overseeing foreign intelligence collection," if surveillance is allowed in a domestic criminal investigation, as is permitted under the USA PATRIOT Act, the protections of the Fourth Amendment should be triggered and observed.55

In cases of organized crime or in the war on drugs, where the attorney is suspected of acting as a co-conspirator, prosecutors obtain warrants justified by probable cause to monitor conversations. So should be the requirement for the War on Terror.56

Anti-terrorism legislation also raises First Amendment concerns, threatening freedom of speech, association, and expression. In the view of Lynne Stewart, regulations which allow the government to monitor confidential attorney-client exchanges do not trump the First Amendment.57 "Much of the legislation enacted pursuant to the government's prosecution of the 'War on Terrorism' has had a deleterious effect on the sacrosanct protection of the First Amendment right to free speech."58 If the government requires an attorney to acknowledge SAMs and to agree not to communicate a client's views, it restricts the attorney's freedom of speech and expression. If the legislation deters an attorney from representing a client, it impinges on her right to free association.

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. And since 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?59

The First Amendment, however, does not preclude limits on violence or terrorist activity. Statements triggering acts of violence can constitute incitement, if the speaker intended violence to result and violence was an imminent and likely consequence of the statements.60 Or, the person making the statement "can become so enmeshed in the planning of a particular attack that he becomes a part of a criminal conspiracy."61 Because the jury found that Stewart supported acts of terrorism, she is per se ineligible for First Amendment protection.62 "To hold otherwise would allow terrorist organizations to effectively launder communications by using the lawyer as a public conduit."63

Critics of anti-terrorism legislation accuse the government of violating the attorney-client privilege where the legislation interferes with an attorney's representation of a client. The attorney-client privilege is the oldest privilege in common law.64 A privilege held by the client, it guarantees that communications between attorneys and their clients intended to be confidential remain so unless the client waives the privilege or the communication falls under a recognized exception.65 Premised on the notion that an attorney must know all the facts of a case in order to provide effective representation, the attorney-client privilege creates a guarantee that what a client reveals to his lawyer, no matter how damning or embarrassing, will remain behind closed doors.66

This [regulation] means that the client will never have the ability to speak privately and confidentially with their counsel. Given the lawyer's duty to preserve the privilege and not to speak if he or she can not do so, this can have the effect of denying the client any counsel at all. Such an invasion of the lawyer/client privilege undermines the adversarial nature of the legal process. The Rule's provision for separate monitors within the Department of Justice, apart from the prosecutors, does not remove the chilling effect such monitoring would have on conversations between a lawyer and a client.67

The crime-fraud exception is the main justification for not holding communications between an attorney and a client regarding future terrorist acts to be privileged.68 The Supreme Court in United States v. Zolin held that an attorney-client communication loses its privileged character when the communication is designed to further fraudulent or criminal ends.69 For the crime-fraud exception to apply, the fraudulent objective need not be established definitively; however, the communication must be in furtherance of the crime or fraud, not merely related.70 If an attorney uses her position as advocate or counselor to provide material support to terrorism, she is furthering criminal ends, thus excepting the communications from the attorney-client privilege.

Our system applauds zealous advocacy, allowing lawyers to use any lawful means to defend their clients.7' A zealous advocate's principal loyalty is to her client. For this, a lawyer may offend, challenge, and threaten the system.72 Zealous advocacy is vital to the preservation of the adversarial system.73 In United States v. Reid,74 the court concluded that a proper discerning of the truth required "two equally prepared, zealous and resourceful advocates."75 The zealous advocate actually defends the system she appears to confront,76 by forcing the government to make its case.77 Anti-terrorism legislation that allows the government to monitor attorney-client conversations builds a prosecutorial advantage into the system, destroying the level playing field vital to our criminal justice system.78

While the system does celebrate and indeed requires zealous advocates, lawyers are neither above the law nor immune from criminal liability arising out of offenses committed while representing clients. The First Circuit in United States v. Cintolo19 proscribed a lawyer's unlawful defense of a client, but noted that its "ruling . . . does not interfere with legitimate avenues of advocacy or the ethical conduct of even the most vigorous representation. We do nothing more than apply a criminal statute, aimed at protecting the sanctuary of justice from malevolent influences, in a sober and impartial fashion."80

The constitutional and common law objections presented above raise real concerns regarding the legitimacy of anti-terrorism legislation, as applied to attorneys. The Supreme Court has yet to review the tactics of the Justice Department in the War on Terror. It may well agree with its counterpart branches that freedoms may be subordinated to national security concerns. Chief Justice William H. Rehnquist wrote, "[i]t is neither desirable nor is it remotely likely that civil liberty will occupy as favored a position in wartime as it does in peacetime."81 While the Korematsus2 holding was not one of the Court's finest moments, it remains good law. The Court may decide to follow its precedent and bow to the Justice Department's assessment that national security concerns outweigh individual civil liberties. Indeed, the Court suggested in Zadvydas v. Davis83 that it will defer in matters related to terrorism: "Neither do we consider terrorism or other special circumstances where special arguments might be made for ... heightened deference to the judgments of the political branches with respect to matters of national security."84

The government has at its disposal new anti-terrorism legislation that raises serious constitutional and common law concerns. The government's stance can be summarized as twofold: (1) civil liberties may be subordinated to national security concerns; and (2) terrorists' lawyers are conspiring in illegal action and therefore traditional protections do not apply. The problem with the first is that we have heard it before. Historically, where the government has taken a strong position against a group of people, such as was the case during McCarthyism, against Japanese-Americans after Pearl Harbor, and against civil rights activists during the civil rights movement, "after each perceived security crisis ended, the United States remorsefully realized that the abrogation of civil liberties was unnecessary. However, the United States has been unable to prevent itself from repeating the error when the next crisis comes along."85 The problem with the second is that it is circular. The government created legislation criminalizing certain attorney-client activity. The means used by the government supposedly trump traditional civil liberties protections because this activity is criminal. Basically, because the government made certain traditionally protected action illegal, it may skirt traditional safeguards that protect the action. And it does so without review.

III. EFFECTS OF APPLYING ANTI-TERRORISM LEGISLATION TO ATTORNEYS

Generally, the Model Rules of Professional Conduct ("Model Rules") govern an attorney's conduct, with disqualification or disbarment being the sanction upon breach. "The government resorts to criminal prosecution when it views disqualification as an inadequate response.. . . [TJimes of crisis have also precipitated punitive action against lawyers who represented clients perceived as threats to public order or the prevailing national consensus."86 This section explores how applying anti-terrorism legislation to attorneys will chill attorneys' zealous advocacy of their clients, and of even more concern, may dissuade attorneys from representing suspected terrorists altogether.

A. CHILLING ZEALOUS ADVOCACY

Stewart's conviction for providing material support to terrorism will chill representation of suspected terrorists87 because zealous advocates will fear that their communications will be used against them. "[I]t is not absurd to suggest that some attorneys will actually feel uncomfortable speaking to their clients out of fear that what is discussed may ultimately be used against the attorney herself."88

The attorney is confronted with the problem of discerning the limits of representation under material support statutes. If she goes too far she risks criminal prosecution.89 At the other extreme, she risks detachment and depriving her client of effective representation if she does not advocate strongly enough.90 A lawyer who distances herself from her client risks reinforcing the negative perception of her client.91 If a jury or a judge senses this, the disparaging inferences drawn from such a distancing will ultimately harm the client.

B. POSSIBLE EXPANSION OF LEGISLATION DISSUADES REPRESENTATION OF TERRORISTS

A conviction for Stewart will undoubtedly deter attorneys from defending "unpopular" defendants.92 A real risk for lawyers is that the anti-terrorism legislation will be further expanded, either in terms of the defendants or the actions of counsel covered.93 Should this occur, more attorneys may be prosecuted for providing material support to terrorism.94 As FISA is no longer limited to foreign agents, the possible reach is even broader and attorneys can no longer feel secure even when representing American citizens.95 "Conceivably, the[] extensions of the definition of 'terrorist' could bring within their sweep diverse domestic political groups, which have been accused of acts of intimidation or property damages such as Act Up, People for the Ethical Treatment of Animals (PETA), Operation Rescue, and the Vieques demonstrators."96 It is now conceivable that attorneys representing these groups could also be prosecuted, should the government decide that they are a threat to national security.97 Lawyers may decline to represent such groups for fear of criminal prosecution. Currently, 2339A covers only foreign terrorist organizations, but as the Patriot Act expanded FISA to cover domestic terrorists, so may material support statutes be expanded and applied to attorneys.

Policy-makers are considering applying "gatekeeper initiatives" to the Patriot Act, which would impose increased responsibilities on attorneys in conflict with attorney-client obligations.98 The ABA has created a task force to help federal policy-makers script an appropriate role for attorneys in this regard." "Some believe that the special relationship between lawyers and their clients gives lawyers an early inside view into crimes that could make their insights invaluable into the war on domestic and international criminal activity."100 In the Patriot Act context, gatekeeper initiatives could impose reporting requirements on attorneys who represent suspected terrorists if they become aware of criminal activity. Gatekeeper initiatives already exist in other areas of law. For example, the Sarbanes-Oxley Act requires that lawyers report within a corporation material violations of securities law or breaches of fiduciary duties.101 If a similar approach was taken with the Patriot Act, the lawyer could become a sort of dual agent, having responsibilities not only to the client, but to the government as well. Surely, this would chill attorney-client relations, hampering effective representation.

Proponents of favoring national security concerns over civil liberties may find comfort in the belief that any infringement of liberties is merely temporary; relying that the pendulum will automatically swing back as soon as the crisis passes, however,

[d]espite the government's claim that the . . . intrusion into the attorney-client relationship and interference with the constitutionally guaranteed right to counsel in criminal cases is justified, Americans should not underestimate the impact that such an infringement will have in the long run. Americans should not assume that "freedoms forsaken today might somehow be regained tomorrow."102

C. RECONCILING ETHICAL DUTIES WITH ANTI-TERRORISM LEGISLATION

The Model Rules outline the ethical obligations of attorneys to both their clients and to the bar103 that may conflict when an attorney represents an accused terrorist. According to the Model Rules, representing a client with unpopular views presents no ethical problem. A lawyer does not espouse or promote her client's views merely by representing him.104 The ABA and the Model Rules charge the lawyer to zealously represent her client, but note that she must do so within the bounds of the law.105 A lawyer may not assist a client in the commission of criminal or fraudulent acts and indeed must withdraw if "the representation will result in violation of the rules of professional conduct or other law."106

On the other hand,

[a]ttorneys who believe that they are obligated to follow [ethical guidelines] and 'not decline representation because a client or a cause is unpopular or community reaction is adverse' are at risk of being targeted for character assassination and prosecuted to the full extent of, and in some instances, beyond the law.107

Therefore, an attorney who would like to decline the representation of an accused terrorist for fear of criminal prosecution under material support statutes risks contravening ethical obligations. "The monitoring places an attorney in the position of either violating the ethical obligation to maintain confidentiality of communications with the client or foregoing such communications altogether, thereby seriously jeopardizing the ability to obtain or sustain legal representation."108

The zealous advocate must beware not to become overzealous. Many criminal defense attorneys oppose anti-terrorism legislation because of the threats it poses to civil liberties. Part of Stewart's problem may be that she transcended zealous advocacy, allowing her own political agenda to become involved in the representation of her client.109 "Testifying on her own behalf, Ms. Stewart said the press release was part of a legal strategy that involved provoking the government if necessary in order to keep the sheik in the public eye."110 An attorney may be tempted to defy anti-terrorism legislation as a form of civil disobedience or to provoke the government; however, a lawyer may not use her legal representation of a client as a medium for expressing her own views.111

D. NOTE ON KNOWLEDGE

Both the Model Rules and 18 U.S.C. 2339A require a lawyer to do her homework. Although the Model Rules defines knowledge as actual knowledge,112 the ABA opined that "[a] lawyer should not undertake a representation without making further inquiry if the facts presented by a prospective client suggest that the representation might aid the client in perpetrating a fraud or otherwise committing a crime."113 Willful blindness is sufficient to meet the knowledge requirement for offenses involving international or domestic terrorism.114 That is, lawyers have an obligation not to shut their eyes to what was plainly to be seen. '15 The low scienter requirement of willful blindness intensifies the chilling effects of anti-terrorism legislation.

Thus, due to the real risk of further expansion of anti-terrorism legislation, coupled with the confusion created by a mismatch of criminal and ethical requirements, lawyers will be dissuaded from representing criminal defendants accused of terrorism.

CONCLUSION: GUIDELINES FOR THE ETHICAL REPRESENTATION OF TERRORISTS

And doctors thought they had it bad with medical malpractice. That a lawyer may be criminally liable for knowingly conspiring with her client is not new. What is new is that laws criminalizing the provision of material support to terrorists may be applied to attorneys.116 The danger to the criminal justice system is the chilling of representation. Without clear guidelines or notice, the difficulty for defense attorneys is figuring out how to reconcile their duty of zealous advocacy with material support statutes and the risk of criminal prosecution.

The government's position is that pure, zealous advocacy is acceptable.117 The lawyer lacks guidance because it is unclear where the line between advocating zealously and providing material support to terrorism is drawn. Despite guidelines provided by the Model Rules, "the parameters of the ABA mandate remain quite vague."118 Of course, the closer to the line a lawyer goes, the more difficult a case is to predict. For this reason, a conviction for Stewart, self-proclaimed radical,119 may not provide guidance for more conservative attorneys.

Abbe Smith120 suggests that while the line is difficult to draw between zealous advocacy and going too far, a line nevertheless exists.121 Smith believes that the line should be drawn to protect the client because when the lawyer becomes overly involved, she loses objectivity.122 Smith recognizes that the more despised the client is, the more difficult it may be for the lawyer to maintain the appropriate distance.123 Smith suggests that a lawyer should "do what [he] can do to be beyond reproach."124 Stewart's conviction has shown that a lawyer is not beyond reproach by virtue of being a lawyer.

Regardless of the truth behind the government's allegations against Stewart, and regardless of our personal views on her tactics, Stewart's case should make all attorneys sit up and take notice. The government has used a national security crisis to justify expansion of laws and bending and even disregarding the constitution and common law traditions. The government used Lynne Stewart to apply these laws to attorneys. The danger that statutes criminalizing material support to terrorist organizations could be expanded to cover domestic terrorist organizations threatens defense attorneys. And why stop there? National security could justify applying the statutes to transactional attorneys as well, making vulnerable anyone who represents Muslim or Arabic clients, in any matter.

Identifying a national security crisis, rightly or wrongly, generates hysteria. The War on Terror is no exception. Policy-makers must be aware of the serious ramifications its War on Terror has on the legal profession. Lynne Stewart's conviction demonstrates the government's willingness to charge attorneys with material support of terrorism, whether or not an attorney's actions directly further a terrorist attack. It also shows a jury's willingness to accept such a charge. Stewart plans to appeal.125

In the War on Terror, the government utilizes and expands existing legislation. Its policies subordinate civil liberties to national security in the face of constitutional and common law constraints. Now the Justice Department includes attorneys in its scope. If the government fails to develop clear guidelines of how these material support statutes will apply to attorneys, at best, zealous advocacy will be diluted and accused terrorists will be at a disadvantage vis--vis prosecutors. At worst, attorneys will decline representation of unpopular defendants altogether. But maybe that's the point.

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ALISSA CLARE*

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* B.S.F.S., Georgetown University, Edmund A. Walsh School of Foreign Service (2000); J.D., Georgetown University Law Center (expected May 2006).