Friday, March 12, 2010

Be Careful Who You Advise or Teach

Two cases that may have profound personal consequences for lawyers and law professors are working their way through the US legal system. The first case, Holder v. The Humanitarian Law Project, was heard at the U.S. Supreme Court on February 23, 2010. My friend Professor Mohamed Fadel of the University of Toronto School of Law wrote a piece in Foreign Policy summarizing the issue and commenting on the case’s ramifications for foreign policy analysts.

I think lawyers and law professors may have even more to worry about. The case tests the constitutionality of a provision of the Anti-Terrorism and Effective Death Penalty Act. The relevant section, 18 U.S.C. Sec. 2339B(a)(1), provides for a maximum penalty of 15 years in prison, for providing "material support" to a “foreign terrorist organization,” as determined by the Secretary of State. The section defines “material support or resources” as follows:

any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials. (emphasis added).

The ninth circuit ruled that the statute was void for vagueness. Obviously the government was not going to give up that easy and appealed to the Supreme Court.

Law Professor David Cole of Georgetown representing the plaintiffs argued at the apex court that the statute needed a specific intent element. In essence, he advanced the not so radical idea that the government must prove that a defendant specifically intended for its actions to advance the unlawful or terrorist ends of the group supported. Not surprisingly, government lawyers insisted that this provision must remain broad to enable the executive to protect the national security of the country. From the administration’s perspective any “support” for a designated terrorist group aught to be caught by this provision. The reasoning put forth being that even “support” for the lawful activities may help the group to allocate limited resources toward unlawful activities. At the same time in an attempt to assuage concerns, the government also suggested that we could trust them to ensure that the provision would not be abused. Where have we heard that before?

For those who think that lawyers need not worry about this, maybe the second case, Al-Haramain v. Bush, may provide some additional food for thought. There is a very insightful article on the case in the January issue of the ABA Journal. The matter was argued in front of San Francisco Chief District Judge Vaughn R. Walker on September 23, 2009. The plaintiffs’ lawyer Jon B. Eisenberg (lead counsel in the Terri Schiavo case) advises that he is still waiting for a ruling on his “motion for summary judgment of standing (whether our clients were in fact subjected to warrantless electronic surveillance) and liability (whether the surveillance was unlawful, i.e., whether the President has extraordinary power to disregard FISA).” This is an unusually long wait for a decision according to Eisenberg.

The case is far broader in scope, but for our purposes the most interesting issue is the one about the alleged violations of attorney-client privilege. Two of the plaintiffs in the case are lawyers, M. Wendell Belew and Asim Gafoor, who acted for Al-Haramain and discovered that communication with their client was wiretapped without a warrant. The lawyer-plaintiffs only learned about the eavesdropping when the Treasury Department mistakenly provided them with a document as part of discoveries in another trial. The document marked “Top Secret” was a log of their conversations with their clients.

The lawyer-plaintiffs commenced suit and the government promptly relied on national security and the state secrets privilege. These magic words allow the government to ask a court to shut down litigation before it even starts.

The government has argued that the case along with 54 consolidated cases on the illegal wiretapping issue should be dismissed for lack of evidence. In an interesting twist, the only people who have tangible proof that they were illegally wiretapped are the two lawyer-plaintiffs. In Kafkaesque fashion, government lawyers are now arguing that due to the state secrets privilege, the plaintiffs cannot rely on the evidence they came across as a result of government bungling. How does one prove illegal wiretapping when the only evidence (which one had possession of and was demanded back on the grounds of national security) does not exist for all intents and purposes?

These two cases raise some serious issues for lawyers and law professors who provide legal opinion, advice, representation or education to suspected groups even when it is completely unrelated to terrorist violence.

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