Showdown Looming Over Executive Privilege

George W. Bush's presidential tenure has been marked by one cover-up after another. But the masterful spinning of Karl Rove and a compliant media enabled Bush to get away with it. Now that the Democrat-controlled Congress is investigating administration malfeasance, Bush's cover-ups have come cloaked in the guise of "executive privilege."

Bush has claimed executive privilege in resisting congressional subpoenas in the investigation of the U.S. Attorney firing scandal. U.S. Attorneys who weren't "loyal Bushies" were ousted in a mass purge. Bush instructed former White House political director Sara Taylor and former White House counsel Harriet Miers to refuse to testify about any "White House consideration, deliberations or communications" regarding the firings. He also instructed his chief of staff Joshua Bolten to withhold documents demanded by the House Judiciary Committee. Defying a congressional subpoena is a crime.

Taylor testified before the Senate Judiciary Committee, invoking the privilege selectively. Miers's and Bolten's situation is even more problematic. They refused to show-up at the House committee altogether. A witness must appear, be sworn, and then invoke the privilege. Miers and Bolten committed a crime when they failed to appear. They could be locked up for ignoring the subpoenas. Bush will claim the Executive is supreme and that his order to Miers and Bolten nullifies the subpoenas.

There are already signs that Bush will refuse to allow his Justice Department to enforce congressional contempt charges. Senate Judiciary Committee Chairman Patrick Leahy responded angrily, saying, "By acting above the law, this President and Vice President seek to override the independence of law enforcement and manipulate our valued system of checks and balances," adding, "an independent review is probably in order." It remains to be seen whether Congress will match its rhetoric with its votes.

As it did after the Haditha massacre, the U.S. military covered up the real cause of Pat Tillman's death. After claiming he died in a heroic gun battle with the enemy, the administration was later compelled to admit Tillman died from "friendly-fire." When the House Committee on Oversight and Government Reform subpoenaed "all documents received or generated by any official in the Executive Office of the President" relating to Tillman's death, Bush refused, claiming executive privilege. Again, a showdown is looming, this time over documents.

Chairman Henry Waxman and ranking Committee Republican Tom Davis wrote a letter to White House Counsel Fred Fielding, which said: "The Committee hearing [on Tillman's death]. . . raised questions about whether the administration has been providing accurate information to Congress and the American people about the ongoing war in Iraq and Afghanistan."

Congress has three options. First, if a majority of the judiciary committee and the full chamber agree, they can issue contempt citations and then certify them to the United States Attorney for the District of Columbia, "whose duty it shall be to bring the matter before the grand jury for its action," according to a federal statute. But in spite of that statute, the White House will reportedly forbid the Justice Department from pursuing contempt charges.

Second, Congress could invoke its own "inherent contempt" power, direct the Sergeant-at-Arms to arrest the recalcitrant witness, and imprison her in the Capitol basement. This power was last used in 1934.

Finally, Congress can hire counsel to enforce the subpoenas in civil court.

In the past, when the White House and Congress have clashed over claims of executive privilege, the President generally capitulated before criminal proceedings began. But Bush has consistently defied Congress and the courts with his secret spying program and his signing statements. He will likely hold firm, banking on favorable rulings in the increasingly conservative Supreme Court.

Perhaps Congress should subpoena Dick Cheney to shed light on these matters. Since Cheney denies belonging to the executive branch, he'd be hard pressed to assert executive privilege.

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First They Came for Lynne Stewart

First they came for the communists, and I did not speak out--
because I was not a communist;
Then they came for the socialists, and I did not speak out--
because I was not a socialist;
Then they came for the trade unionists, and I did not speak out--
because I was not a trade unionist;
Then they came for the Jews, and I did not speak out--
because I was not a Jew;
Then they came for me--
and there was no one left to speak out for me.
-Pastor Martin Niemöller, 1945

Now they're coming for the lawyers, and we must all speak out.

Last Thursday, after 13 days of deliberations, prominent New York civil rights attorney Lynne Stewart was convicted of conspiracy, providing material support to terrorists, and defrauding the United States government. Her 7-month trial was held in the same federal courthouse where the Rosenbergs were tried for conspiracy to commit espionage more than 50 years ago. Stewart faces between 35 and 45 years in prison.

Stewart was indicted in March 2002. The indictment was based on governmental monitoring of conversations between Stewart and her client, Shiek Omar Abdel Rahman, which occurred two and a half years before the terrorist attacks of September 11, 2001.

Rahman is serving a life plus 65-year sentence for conspiring to bomb several New York City landmarks and soliciting crimes of violence against the U.S. military and Egyptian President Hosni Mubarak.

Beginning in 1997, the Bureau of Prisons, at the direction of the Attorney General, imposed special administrative measures (SAMs) on Rahman, limiting his access to the mail, the media, the telephone and visitors.

Stewart was obliged to sign an affirmation agreeing to be bound by the SAMs, before being allowed to see her client. She agreed "only to be accompanied by translators for the purpose of communicating with inmate Abdel Rahman concerning legal matters" and not to "use my meetings, correspondence, or phone calls with Abdel Rahman to pass messages between third parties (including, but not limited to, the media) and Abdel Rahman."

The government charged that Stewart allowed the Arabic translator to read letters to Rahman regarding Islamic Group matters, and to conduct a discussion with Rahman regarding whether Islamic Group should continue to comply with a cease-fire in Egypt. It also alleged that Stewart concealed those discussions from prison guards, and announced to the media that Rahman had withdrawn his support for the cease-fire, in violation of the SAMs.

Stewart denied these allegations, and testified that she believed in good faith that relaying Rahman's statement calling for more consultation about the Egyptian cease-fire did not violate the SAMs. She said she was trying to have Rahman transferred to Egypt to serve his sentence by keeping him visible. Rahman is old, blind, does not speak English, and has been kept virtually incommunicado in a federal prison in Minnesota.

Her good-faith belief, Stewart tesfitied, was based on actions of former U.S. Attorney General Ramsey Clark, another of Rahman's attorneys. Clark also signed these SAMs, held press conferences, and conveyed Rahman's statements about Egyptian politics to the press. Yet, Clark was never prosecuted.

Clark, who testified for Stewart at her trial, told Amy Goodman of Democracy Now!, "I don't know of anything that Lynne did that I didn't do." He said, "This case would never have been brought except for the fear generated, and the advantage that the Bush administration was taking of it, by the events of September 11, 2001. In ordinary times and circumstances, it would be recognized that everything that Lynne did was exactly what an effective attorney representing a client zealously would be obligated to do."

At a 2002 conference, Stewart noted, "Usually if one breaks a Bureau of Prisons edict, one is told one can't visit the prison again, or one gets some sort of administrative slap on the wrist of some kind. One does not usually get indicted for aiding a terrorist organization."

Why did the government wait so long before indicting Lynne Stewart? According to Heidi Boghosian, executive director of the National Lawyers Guild, Stewart was a "prime target for the Attorney General, who needed desperately to show that the Justice Department was actively fighting terrorism."

When Stewart was indicted, John Ashcroft had arrested only one person since September 11 - John Walker Lindh. "By indicting Stewart," noted Boghosian, "Ashcroft effectively sent the dual message that he could indict other lawyers who represented clients with unpopular beliefs and that such clients do not deserve defense."

The same day Bush signed the USA Patriot Act into law, General Ashcroft announced an interim amendment to the Bureau of Prisons regulation, which took effect five days later, without the usual public comment period. It permits the Department of Justice (DOJ) unlimited and unreviewable discretion to eavesdrop on confidential attorney-client conversations of persons in custody, with no judicial oversight and no meaningful standards. It applies not only to convicted inmates, but to all persons in the custody of the DOJ, including pretrial detainees, material witnesses, and immigration detainees who have not been accused of any crime.

At a 2002 convention of the National Lawyers Guild, Stewart expressed alarm at what her indictment portends for the future of the attorney-client privilege and criminal defense. She said, "This is about protecting the right to defend. Once the attorney-client privilege is lost, there is no right to defend as we know it." Speaking about the government's monitoring of her conversations with her client, Stewart stated, "The question you should be asking is not what I was doing in that room, but what was the government doing in that room?"

During the McCarthy period of the 1950s, in an effort to eradicate the perceived threat of communism, the government engaged in widespread illegal surveillance to threaten and silence anyone who had an unorthodox political viewpoint. Many people were jailed, blacklisted and lost their jobs. Thousands of lives were shattered as the FBI engaged in "red-baiting."

Since September 11, those who question government policy have been, and will continue to be, branded "terrorist." Even though "terrorism" was not an element of any of the offenses with which Lynne Stewart was charged, and Osama bin Laden was not part of any of the charges, the prosecution was permitted to bring bin Laden's name into the trial.

A written threat from the Jewish Defense Organization was posted on the door to Stewart's home after 10 ½ days of jury deliberations in the trial. It referred to a message purporting "to reach out so the jurors understand what she is. And that's been done." The message gave Stewart's home address and said she "needs to be put out of business legally and effectively." It threatened to "drive her out of her home and out of the state." If this message did reach any jurors who were sitting on the fence, it may have pushed them over to the guilty side.

Stewart told Amy Goodman, "These SAMs said you know, 'If you break these regulations, you may be cut off from your client.' That was our greatest concern, that we would be cut off from the client. The idea of prosecution never entered our minds." Stewart continued, "I believe with my mind and heart that it was the right thing to do."

Lynne Stewart's indictment, and conviction, will also chill attorneys from taking on cases of unpopular clients. "The purpose of this prosecution," said Michael Ratner, president of the Center for Constitutional Rights, "was to send a message to lawyers who represent alleged terrorists that it's dangerous to do so."

Stewart's attorney, Michael Tigar, does not blame the jury for this injustice. "We have all in our lifetimes seen well-meaning juries get caught up in the media-dominated government rhetoric of their time, based mostly on fear," Tigar said after the verdicts were announced. "I do not criticize these jurors. I have every confidence this verdict will be set aside."

Lawyers representing Guantánamo detainees are being asked to sign agreements that their consultations with their clients will not be confidential. Tigar told Amy Goodman, "The only way that we will ever get to the bottom of the American concentration camp abuses at Gitmo and Abu Ghraib is if the lawyers for these prisoners are permitted to tell their stories to the world. If the government can shut off that communication, which they have attempted to do over and over and over again, these activities will continue in secret."

It is essential that people feel safe in these perilous times. But, as Supreme Court Associate Justice Sandra Day O'Connor wrote in a 1995 opinion, "It cannot be too often stated that the greatest threats to our constitutional freedoms come in times of crisis." The confidential relationship between attorney and client sits at the heart of our criminal justice system. We must zealously guard it or we will all be at risk.

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