The New York Times carries a sympathetic article on the case of Mohamed Yousry, an Arabic-language translator, who worked “for nearly a decade as a translator for Lynne F. Stewart,” who represented Sheikh Omar Abdel Rahman. Rahman “was convicted in 1995 in connection with the 1993 World Trade Center bombing, and he was sentenced to life imprisonment plus 65 years.” Sherry Colb’s less sympathetic view holds that Stewart knowingly broke the rules and that the translator was discussing “whether ‘the Islamic Group’ should continue its ceasefire with Egypt.”
Under ordinary circumstances, an attorney who represents a criminal defendant may go to the press and tell the people what her client has to say. Whether the client denies the allegations, claims a justification, or simply sends his love to family and friends, his lawyer may – with the client’s permission – convey that information to any and all third parties willing to listen. The distribution of such communications falls within an attorney’s role as spokesperson for her client.
For a relatively small number of criminal defendants, however, the government designates this spokesperson role as off-limits to their attorneys. In the case of such defendants, believed to pose special risks to the safety of Americans here or abroad, an attorney representing them must agree not to convey the client’s messages to third parties (and may be subject to other requirements that also do not affect most attorneys).
The reason for such limitations is the fear that the client will use his lawyer to communicate instructions for carrying out violent acts. The gag rules and other restrictions that apply to lawyers working for this set of clients are called “special administrative measures” or “SAMs.”
SAMs have garnered criticism on the ground that they deprive defendants of rights including free speech. Abdel Rahman was placed under such SAMs by the Bureau of Prisons at the direction of the Attorney General. His lawyer, Lynne Stewart, agreed to abide by the measures but believed that they violated the Constitution.
SAMs are particularly justified in organized crime cases where defendants may use their lawyers to relay messages to kill or intimidate witnesses against them. “What Stewart is accused of having communicated . . . is an instruction to kill people, an instruction that is and ought to be illegal regardless of whether or not SAMs are in place.”
The government never showed that any violence ever resulted from [co-defendant] Mr. Sattar’s calls or from any action by Ms. Stewart or Mr. Yousry; there were no victims in the case. The Islamic Group never cancelled the cease-fire, which remains in effect to this day. The defendants were never accused of plotting any terrorism in the United States. The evidence showed that Ms. Stewart had had nothing to do with writing or issuing the fatwa.
The Sixth Amendment states:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
So a Sixth Amendment defense relies on publicity as a means to a fair trial, a First Amendment defense prefers a defendant’s freedom of speech to the public’s right to a fair trial, and the logic van Bergen cites in The New York Times requires damage as a prerequisite to enforcement of a free speech restriction.
The New York Times logic cites constitutional law; Findlaw quotes, among many other cases, a decision in Bantam Books v. Sullivan, 372 U.S. 58, 70 (1963), which states, “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” A reading of these annotations also suggests that a court may only impose a “gag order” under very narrow conditions. But SAMs are imposed by the prison system and the Department of Justice, not by a court; the federal case presumes an Executive Branch privilege to restrict civil rights where even courts must tread gingerly. Further, the doctrine on prior restraint does not apply merely to the press but to freedom of expression.
In this light, Colb’s argument seems more tenuous; even she acknowledges the role of an attorney as a spokesperson for her client. Under the First and Sixth Amendments, then, it seems clear that the conviction in this case rests on dubious constitutional grounds, and that Yousry’s conviction is particularly egregious, for he “never signed documents pledging to abide by prison regulations,” but followed the advice of his employer, a lawyer.