``...that doesn't mean the government should eavesdrop on Tony Soprano's lawyer...'' Doug
``I actually said a few times that the eavesdropping was the clearest problem with the whole process here. Don't act like I'm saying what was done in the Lynne Stewart case was acceptable conduct; I'm just saying its a messy enough case that it's the wrong case to make the poster child for civil liberties abuses. There are better cases...'' Nathan Newman
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``.. eavesdropping was the clearest problem with the whole process...''
I think this is the more pressing issue. And I don't think anybody in the discussion has highlighted it well enough.
I got through about half of the indictment and got bored. It appeared to me that virtually all the evidence supporting the charges in the indictment, with one exception, the public press conference, was obtained through recordings of client-attorney meetings in prison.
The US Attorneys also had Stewart sign a statement that prohibited her from discussing anything but the legal matters of the case with her client, as a pre-condition of her meeting with her client. (I didn't know They could do That!) Since she was recorded discussing other matters, she is also charged with violating conditions of this statement.
The client, the interpreter and Steward are all charged.
Let's call this the Ashcroft Rules of Evidence problem, or the ARE problem for short. (Hopefully this is technically a rules of evidence problem)
What's wrong with ARE? In a nutshell, the following.
The whole point to establishing and following balanced and fair procedures, rules, and laws governing evidence is to insure that the means used to prove a violation of law are congruent with the ends sought, which is to up hold law. The most basic concept of justice is founded in and derives from the process of how it is conducted, that is in the uniformity of its means and ends, and is not found in their separation and differentiation. (This almost straight out of Kant and Hegel)
Under Ashcroft rules of evidence, the legal process is reduced to the government's exclusive access to police power to spy on and charge others with pre-criminalized speech acts in advance and in the absence of any other overt criminal act.
In any event, since Ashcroft rules of evidence are considered legal at the moment, many cases will follow. Finicky eaters will get to cherry pick among many ripe abuses of state power. . . .
``But as I said at the beginning, IF she had done what is alleged-- actively use her position as an attorney to facilitate illegal terrorism -- then there would be nothing wrong with the indictment...'' NN
I want to keep pushing on this. What's wrong with the indictment is how evidence was obtained to get the indictment. I am guessing the primary reason the US Attorney used the Grand Jury system is exactly because the rules of evidence to get an indictment follow a lower standard of exclusion (including heresay and questionable wire tap, recordings, photos, video etc---yes, no?).
Further the problem with the evidence isn't its content, its strength or weakness. And the problem isn't whether or not she facilitated terrorism. Stewart should not be prosecuted because the evidence against her was obtained by what should be and at one time probably were illegal methods. In other words DoJ broke or stretched laws to prosecute other laws.
Also consider this. If Nathan's principle that to use attorney-client meetings to facilitate terrorism should be illegal, then the principle itself presumes knowledge that can only be gained by violating another principle, that of protected and confidential communication between lawyer and client. So Nathan's principle puts him in automatic conflict with another principle, attorney-client confidence.
So, then the only way to know if Steward did facilitate terrorism is to violate protected communication between her and her client---and then record it for use as evidence.
Well, thankfully Ashcroft Rules of Evidence solves this conflict.
CC