by Fahad Ansari (News & Analysis, Crescent International Vol. 39, No. 7, Ramadan, 1431)
The presumption of innocence is the cornerstone of every legal system in the modern world and one which goes to the heart of the principles of due process.
The presumption of innocence is the cornerstone of every legal system in the modern world and one which goes to the heart of the principles of due process. Linked to this fundamental principle is the right to legal representation — the right to have an individual, suitably qualified in the realm of legal studies, represent your interests and defend you before the mechanisms of the state. If the right to representation were to be withdrawn from a defendant, his right to a fair trial would be severely compromised. The question then arises as to whether there are any circumstances in which a defendant’s right to legal representation could be revoked or withdrawn.
In the Western democratic tradition, such a proposal is likely to be treated with scorn and contempt. Everyone should be allowed have a lawyer, no matter who they are — Peter Sutcliffe, Myra Hindley, O.J. Simpson, even Jon Venables for that matter. All are presumed innocent until proven guilty by a court of law. Even if proven guilty, their right to legal representation to act on their behalf in other matters is still sacrosanct. Without it, they are extremely vulnerable to exploitation and manipulation by the state.
Let us imagine however what would happen if a climate was created within which representing undesirable individuals became an exercise in personal survival. Ponder about life in a political atmosphere where lawyers instructed by these undesirables were harassed, villified and demonized by the press, threatened by the public and imprisoned or even murdered by the state and its agents. Such actions would in effect be a means to deter lawyers from representing such suspects, effectively leaving them without representation, and jeopardizing both their presumption of innocence and their right to a fair trial.
We need not imagine too much about the above scenario but instead cast our eyes across the pond to the US where earlier this month, civil liberties attorney Lynne Stewart was sentenced to ten years in prison. Stewart was the former attorney for Shaykh Omar Abdul-Rahman, a blind Egyptian alim, who in 1993, at the behest of the Egyptian government, was indicted and convicted in the US for sedition for suggesting to a government informer that rather than blow up New York City landmarks he choose “a military target.” In June 2000, Stewart released a statement of the Shaykh’s to Reuters press service calling on his group to reconsider the ceasefire they had in place with the Egyptian government. By doing so, Stewart violated a Special Administrative Measure (SAM) that she had agreed to with the US government, i.e. she was not to become a medium of communication between her client and the outside world.
Interestingly, Stewart was never prosecuted for her actions under the Clinton administration nor during the first years of George W. Bush. It was only in April 2002, months after the opening of the detention facility at Guantanamo Bay, that Stewart was arrested with the Attorney General John Ashcroft even announcing the indictment against her: conspiracy to provide material aid to a terrorist organisation.
Stuart was initially sentenced to a 28 month sentence following her conviction, but this month, District Court Judge John Koeltl, arguably on the instructions of the Second US Circuit Court of Appeals, resentenced her to 10 years imprisonment. The sentence was decided in spite of the fact that Stewart is 70 years old and suffers from breast cancer. Forgotten were Koeltl’s October 2006 comments, calling Lynne’s character “extraordinary,” saying she was “a credit to her profession,” and that a long imprisonment would be “an unreasonable result,” citing “the somewhat atypical nature of her case (and) lack of evidence that any victim was harmed….”
For budding lawyers aspiring to be the next Lynne Stewart or Gareth Peirce, the message is clear: do so at your peril. In April this year, it emerged that lawyers from legal charity Reprieve, which represents many of the detainees in Guantanamo Bay, were facing the prospect of a six-month jail sentence in America after writing a letter to President Obama detailing their client's allegations of torture by US agents. Director of Reprieve, Clive Stafford Smith had written to the president after judges in the UK ruled against the release of US evidence detailing Binyam Mohamed's alleged torture at Guantanamo.
The letter asked the president to reconsider the US position and urged him to release the evidence into the public domain. He attached a memo summarising the case because his US security clearance gives him access to the classified material. Stafford Smith submitted the memo to the privilege review team for clearance but the memo was redacted to just the title, leaving the president unable to read it. Stafford Smith included the redacted copy of the memo in his letter to illustrate the extent to which it had been censored. He described it as a “bizarre reality”. “You, as commander in chief, are being denied access to material that would help prove that crimes have been committed by US personnel. This decision is being made by the very people who you command.”
The privilege team argued that by releasing the redacted memo Reprieve had breached the rules that govern Guantanamo lawyers and made a complaint to the court of “unprofessional conduct”. Stafford Smith received a summons requiring him to attend a court hearing in Washington in May 2010.
Such tactics appear to constitute unofficial policy in the White House. In January 2007, Deputy Assistant Secretary of Defense for Detainee Affairs Charles “Cully” Stimson gave an interview on national radio in which he named the major American law firms representing the Guantanamo detainees, encouraging the lawyers to abandon their clients. Stimson stated: “I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. It’s going to be fun to watch that play out.” Although Stimson’s plan backfired and he was sacked, due to huge public opprobrium against such crude tactics, he clearly went into the interview with a deliberate plan to encourage corporate CEOs to pressure lawyers to abandon their clients.
With cases like that of Stewart and others, one cannot take recent US condemnations of Syria’s imprisonment of human rights lawyer, Muhannad
al-Hassani, without a pinch of salt. Hassani has dedicated the latter part of his life to defending dissidents and human rights activists in Syria. In June this year, he was sentenced to three years imprisonment after being convicted of sedition (there’s that word again), spreading false information and undermining national morale.
Yet, such treatment appears to be the norm today as far as terrorism lawyers are concerned, irrespective of whether one lives in a liberal democracy or under an autocratic tyrant. Another example of the latter was the conviction of human rights lawyer Amine Sidhoum in Algeria in 2008 on charges of bringing the Algerian judiciary into disrepute, after he publicly criticized the fact that one of his terror suspect clients had been detained without trial for two and a half years. Sidhoum has acted as defence counsel in a number of terrorism-related cases and has openly denounced human rights violations, including the systematic incommunicado detention of suspects in secret locations, torture and other ill-treatment, denial of fair trial rights, and the failure of the judicial authorities to investigate allegations of torture and other ill-treatment. The prosecution was not the first time he was subjected to judicial harassment. In August 2006, under different laws governing the organisation and security of prisons, he was accused along with lawyer Hassiba Boumerdesi with passing prohibited items to prisoners — specifically, giving several of his business cards containing his contact details to a client in detention. Both lawyers were acquitted by a court in Algiers in March 2007.
Even in India, a country which proudly regards itself as the largest democracy in the world, terrorism lawyers are harassed, threatened and treated like the enemy. There has even been extreme pressure from within the Indian legal profession itself against representing suspected terrorists. In a development of far-reaching and frightening implications for the stature of the Indian judiciary, Bar Associations in several parts of the country are effectively banning advocates from defending Muslim terror suspects.
For example, following the Mumbai terrorist attack in November 2008, the Bombay Metropolitan Magistrate Court’s Bar Association (BMMCBA), which comprises 1,060 lawyers who practice in that city’s courts, passed a resolution forbidding members from representing the only surviving member of the group involved in the Mumbai attack. Other bar associations have gone even further. After the Bar Association in Dhar passed a similar resolution, advocate Noor Mohammad was physically assaulted at the gate of the court by other lawyers to prevent him taking on the case of a Muslim accused of attending a terrorist training camp. Despite the judge’s warnings to the lawyers, the assault continued. When the judge approached the local police station, he himself was threatened.
In the case of another Muslim terrorism lawyer, Mohammed Shoaib, he was assaulted by a mob of lawyers in the court and dragged out to the streets where the beating continued. In an atmosphere of racist Hindutva, any lawyer seen to be defending a Muslim terror suspect is automatically assumed to be involved in anti-Nationalist activities. Terrorism lawyers regularly receive death threats and in some cases, the threats are acted upon.
In December 2001, S.A.R. Geelani, a Delhi university lecturer, was sentenced to death after being convicted for his suspected involvement in the 2001 parliament attack. Some two years later, he was acquitted by the Delhi high court and the Supreme Court upheld its decision in August 2005. In February 2005, Geelani was shot at by unidentified men outside his lawyer Nandita Haksar’s home. Fortunately, Geelani survived. Since that shootout, Haksar says she has been boycotted in her neighbourhood who fear being associated with her. Whether Geelani’s assailants were agents of the state or not has not been confirmed. But terrorism lawyers in India have claimed they are also monitored by the state security services. Trideep Pais recalls how during one trial, he was required to provide additional personal details to the hotel he checked in, how an officer was posted at reception and how details of guests who visited him were noted down, which thwarted his efforts to get local assistance when fighting the lawsuit, which he ultimately lost.
In February this year, the full horrors of such intimidation came to be realised with the assassination of Shahid Azmi, lawyer for Fahim Ansari, accused of involvement in the 2008 Mumbai attacks. Azmi was gunned down in his home by unidentified gunmen. The incident has strong parallels with the 1989 assassinations of solicitors Pat Finucane and Rosemary Nelson in Northern Ireland. Both were human rights solicitors who defended Republican prisoners. Both were murdered by loyalist paramilitary groups with the active collusion of the police force of Northern Ireland and the British Security Services. Azmi is not likely to be the last lawyer in India whose life will end in this way due to the growing acceptability of such tactics as part of the “war on terror”.
From harassment to vilification, from assault to assassination, terrorism lawyers live on a knife-edge knowing that the threat to their safety and liberty emanates from governments that claim such tactics are the only way to defend our way of life. It is they, not the lawyers, who are defending the indefensible. (Courtesy Cageprisoners, UK).