On March 31, Teresa "Terri" Schiavo died. But the controversy over her case, it turns out, may live on - not only in the media, but perhaps in court, as well.

On June 15, Pinellas County Medical Examiner Jon Thogmartin released his long-awaited, thirty-nine-page autopsy report on Terri - a report that included extensive evidence from neuropathologists who had examined her brain and spinal cord.

The report's findings, in general, supported the position of Terri's husband, Michael - as opposed to that of her parents, who had suggested she had shown signs indicating significant brain activity in her last days. It is unsurprising, then, that within hours of the report's release, Terri's parents denounced it as inaccurate. (Florida Governor Jeb Bush, however, has not yet challenged the report, and may never do so.)

In particular, the report showed that, as over a decade of court wrangling had already proved, Terri had been in a persistent vegetative state (PVS). Indeed, the report also found that her brain had atrophied to half normal size, and that she was blind, the visual areas of her brain having been destroyed.

Nevertheless, the autopsy left an opening for politics to once again insert itself into the case - prompting Gov. Bush to instruct the state's Attorney General to investigate Michael Schiavo.

As I will explain, there is no good reason to investigate. Rather, this investigation is simply a continuation of the politics that have always surrounded the Schiavo case, as I argued in an earlier column for this site.

Nationwide, as much as 70 percent of the American people believe that Congress had no business stepping in the Schiavo case in the first place. And now, Americans' message is clear: Let's close the book on this tragic situation, and go on to address all the other pressing issues we must confront. But, apparently blinded by ambition, Gov. Bush is not listening.

A New Mystery: The Cause of Terri's 1990 Collapse

Although it resolved the debate on Terri's condition, the autopsy report, unintentionally perhaps, reopened the debate on the reasons for Terri's collapse on February 25, 1990. That incident stopped her heart and deprived her brain of oxygen for a period of time sufficient to leave her in a vegetative state.

It had been thought by many that Terri had had an eating disorder, bulimia, that had dangerously lowered her potassium levels. But Thogmartin found no evidence of bulimia - a disorder that can, for instance, leave traces on the esophagus. Moreover, like many investigators before him, Thogmartin did not find any evidence of any kind of trauma that could have caused Terri's collapse.

So why did Terri collapse - if not as a result of bulimia or trauma? It's not clear.

And, more to the point, why did her collapse transform her into a PVS patient? Possibly, that result may have been due to the treatment she received, or failed to receive, after her collapse.

It was on this theory that Gov. Bush called on Florida's attorney general to investigate Michael Schiavo, on the speculation that he might have delayed in calling for emergency assistance the day of her collapse.

It's true that Michael gave conflicting times, as much as 30 minutes apart, when asked when he called 911. But as he testified in prior court hearings, that's because he had to estimate. Understandably, he was not looking at his watch when his wife collapsed and he, presumably, frantically tried to get help for her.

Recall the last emergency situation you were in - can you remember exactly when it began, when it ended, or how long it lasted? Doubtless, you remember the sequence of events, but could you reconstruct a timeline? Time can seem to distort in an emergency - with events happening much more slowly than they actually occurred. A quick car accident can seem to take forever, for instance; time can seem to virtually stop.

The New Investigation of Michael Schiavo: An Abuse of Executive Power

Michael Schiavo not only has provided a credible explanation for the different times he gave for his 911 call; he has also been found, repeatedly, by judges, to be telling the truth about issues surrounding Terri's death.

Terri's parents had long accused Michael of causing Terri's initial collapse. Then, after the collapse, they have accused him of abusing and neglecting her in the years between her hospitalization and her death. These cruel charges are rebutted by the fact that Michael tried all kinds of therapy for Terri in the early years after her collapse, none of which helped her.

Florida authorities under the control of, and presumably sympathetic to, Gov. Bush, repeatedly investigated Michael, and found no evidence to support any allegations against him. Governor Bush must be well-acquainted with these prior investigations and their results, as he repeatedly called for them and repeatedly cited them as proof of his concern for Terri. Why, he even called for one more investigation in the last days of Terri's life!

Further, the reports and transcripts absolving Michael of any wrongdoing are repeatedly cited in the very autopsy report that the Governor says prompted him to call for yet another investigation.

Governor Bush Should Confine His Campaigning to the Editorial Pages

This call for a new investigation has nothing to do with the autopsy report. The real motive is ambition - Jeb Bush's political ambition.

But that is no reason to continue to ruin the life of a private citizen whom no court has ever found to have done anything wrong - and who has said, all along, that he only fought to honor his wife's wishes.

Ambition, though, is powerful - and Jeb Bush may aspire to the Presidency. Indeed, according to E. J. Dionne of the Washington Post, a source floated to Dionne the suggestion that Republicans are considering a John McCain-Jeb Bush ticket for the 2008 Presidential race. If so, that would set up a possible Jeb Bush run for the presidency - even one as early as 2012, if McCain, who'd then be in his mid-seventies, declined to run again.

Ambitious as he is, Gov. Bush ought to keep his campaigning based on the exploitation of the Schiavo tragedy out of the courts. He is free to use the media to continue to cater to his political base, as he has already done. For instance, last week when the New York Times ran an editorial commenting on the autopsy report and the politics that embroiled both Bush brothers in a family matter, Gov. Bush responded with a fiery letter in his own defense, in which he promised to continue to defend the "rights" of every "vulnerable" citizen.

Gov. Bush should rethink his call for yet one more investigation into Michael Schiavo. After over a decade of litigation, and both state and federal intervention, his efforts to make Terri's husband into a villain--and himself into a hero--have failed.

His outright stubbornness on this issue demonstrates his continuous catering to the extreme elements in the Republican Party. To win higher office - even to gain a spot on that hypothetical McCain ticket - he will have to please moderates as well, and do so by taking on issues that are appropriate for politicians to tackle.

End-of-life family issues are not among them. 

Twenty-three-year-old, Houston-born American citizen Ahmed Omar Abu Ali has been returned to Virginia after twenty months in solitary confinement in a Saudi Arabian prison. But he returned only to face arraignment, on February 22, in U.S. District Court in Alexandria, Virginia.

The charge is that he conspired to commit terrorism- and, indeed, the FBI says that he admitted as much in the course of interrogations in Saudi prison. He is alleged to have plotted to assassinate President Bush - but is not charged with that conspiracy.

The case is far from as open-and-shut as the FBI might suggest. Indeed, a number of aspects of the prosecution are deeply troubling.

The Early History of Abu Ali's Case: The Government Reverses Itself

At the end of the 2003 academic year at the Saudi university he was attending, Abu Ali failed to return home to the U.S. As a result, his family - Jordan-born, naturalized U.S. citizens living in Northern Virginia where I practice - contacted me to see if I could help.

In August 2004, attorneys filed suit in the U.S. District Court of the District of Columbia, on behalf of Abu Ali's parents, in order to obtain his release. Among the attorneys was renowned constitutional rights scholar and Georgetown University law professor David Cole.

The day the suit was filed, the State Department - which had previously refused to provide information to Abu Ali's parents - notified them that their son would be charged with crimes of terrorism in Saudi Arabia. But that never happened. Instead, the question of whether Abu Ali could be returned to the U.S. was litigated.

Before U.S. District Judge John Bates, the government took the position that Abu Ali was far too dangerous to ever be returned to the United States, and that the reason was so serious that it could not be disclosed even to the family's attorneys. In other words, the government sought to proceed on secret evidence.

Then, the government reversed itself dramatically. It transported Abu Ali to the United States itself - thus mooting the question before Judge Bates of whether the government could proceed upon secret evidence to block his return.

In 2004, when Abu Ali's parents had been begging the U.S. government to intervene, it had refused - claiming it was up to the Saudis whether he was released. With his return, however, it began to seem evident that the Saudis had been holding Abu Ali with U.S. consent - indeed, even at the U.S.'s behest. It now appears that FBI agents had the Saudis remove Abu Ali from his university class and take him to a Saudi facility for questioning in the summer of 2003.

It also became apparent that the U.S. could, all the time, have ensured Abu Ali's return to the U.S. whenever it felt like it. After all, federal prosecutors had, during this time, extradited from Saudi Arabia to Alexandria another man in Saudi custody who was alleged to be (and acquitted of being) a terrorist and involved in the case of the Alexandria 11.

Apparently, however, the U.S. had taken advantage of this U.S. citizen's choice to attend school abroad, to make sure he was held in prison there - where torture would be permitted, and counsel would not be provided. Indeed, unidentified sources have been quoted in the Washington Post and New York Times as saying that the government certainly would have preferred to have left Abu Ali in Saudi Arabia.

It was only Judge Bates's interest in Abu Ali's case that changed the government's mind. Laudably, Bates was concerned - as we all should be -- about the potentially indefinite imprisonment of a U.S. citizen, with the U.S.'s consent, in a foreign prison where due process is ignored and torture is common.

With Judge Bates perhaps unwilling to proceed against Abu Ali in absentia, the government felt it had to bring him home. To do so, they had to charge him with something--something that would at least sound serious, even if the underlying indictment (as I will explain below) fell far short of the media headline.

The Government Argues Abu Ali Ought to Be "Presumed Dangerous"

Abu Ali was arraigned, as noted above, on February 22. On February 24, a hearing on whether he would be released prior to trial was to occur. But the government managed to delay that hearing. It did so by arguing that the usual standard for pre-trial release should not apply.

Typically, in a criminal case, to block a defendant's release on bail, the government must prove the defendant's dangerousness or his likelihood of fleeing. But here, the government took the position that the defendant, Abu Ali, had the burden of proving to the court that he would not be a danger to national security, before being released on bail. It did so based on 2004 federal legislation stating that people charged with terrorism-related crimes were presumed to be too dangerous to be released unless they proved otherwise.

The Eighth Amendment requires that "excessive" bail shall not be required, and constitutional due process applies to federal pre-trial criminal proceedings. Moreover, two centuries of law have mandated that the government has to prove that a defendant would be a flight risk or danger to the community if not released on the condition he pay bail and/or comply with other requirements.

More fundamentally, our system depends on the idea that we jail people for criminal conduct, not merely the government's insistence that they are "dangerous." In order to honor this principle, we have made sure that we have no common law crimes - only those specifically defined by statute.

The importance of this principle simply cannot be overstated. Without it, governments could simply lock up unpopular minorities, political opponents, and political dissidents - and as South American and Eastern European history shows us, they have.

The Government Relies on a U.S. Citizen's Saudi-Prison Confession

At the hearing on the bail motion, an FBI agent testified that Abu Ali had confessed to Saudi officials that he associated with persons involved with al-Qaeda, received things of value from them, and talked with one or more of them about how to assassinate President Bush, whether by car bomb or shooting. (These persons are named in the indictment as unindicted co-conspirators.) The government also claims to have a videotape of this confession.

Abu Ali's attorneys argued that if Abu Ali indeed confessed, he did so under extreme conditions of confinement - conditions that included torture. Confessions under such circumstances are not only deeply inhumane; they are also notoriously unreliable.

They also pointed out that Abu Ali had repeatedly been denied the right to an attorney. Abu Ali's parents had asked the U.S. consulate in Saudi Arabia -- who had infrequently sent an employee to visit Abu Ali in prison -- to provide their son with an attorney. They were told the Saudis would not allow it. Accordingly, no attorney ever met with Abu Ali while he was incarcerated and doubtless tortured in Saudi Arabia.

Hopefully, the Alexandria judge will exclude the confession from evidence to be heard at Abu Ali's trial. He could do so on the ground that Abu Ali was, in effect, in U.S. custody - and thus, his Fifth Amendment rights were violated. Or, the judge could do so on a simpler ground: that the prejudicial effect of coerced confessions outweighs their probative value. (Federal trial judges may make this prejudicial effect/probative value balance for any piece of evidence the government seeks to offer.)

The Government Searches Abu Ali's Parents Home pursuant to the USA PATRIOT

The government also admitted at the bail hearing that it had secretly raided Abu Ali's parents' home in 2003 - apparently pursuant to the USA PATRIOT Act -- and found what it deemed to be "radical" Islamic writings. It also found a gun magazine - hardly unusual for Virginia.

This search had occurred incident to the prosecution of the "Alexandria 11." I have written about this group in an earlier column. Abu Ali and his parents were certainly not among them - but because they lived in the same community, apparently they fell under suspicion anyway.

In Abu Ali's case, the government was able to use two arguably unconstitutional laws--the USA PATRIOT Act, which allows secret, warrantless searches, and the law the government invoked, which allows pre-trial dangerousness to be presumed. Through the combination of these laws, it was able to search secretly for supposed evidence of dangerousness, craft an overblown indictment, flood the media with dramatic press releases, and then dare the defendant to prove his innocence.

The Government's Indictment: Where's the Conspiracy?

When the indictment was made available to the public, it raised an even larger question about the entire prosecution. Nowhere in the indictment is Abu Ali tied to any terrorist event or action. So what is his crime?

Plainly, there was not enough support for a charge of conspiracy to assassinate President Bush. Conspiracy requires an agreement, and an overt act in furtherance of the agreement. Nothing in the indictment suggests that Abu Ali either agreed to attempt to assassinate Bush, or took any action as a step to doing so.

So, instead, the indictment simply charges Ali with having "associated" with alleged terrorists. Specifically, it claims that he talked about wanting to kill Bush with these persons, and that he received money from one or more of them - for what purpose, it is unclear.

The very reason that the law of conspiracy requires an agreement and an overt act is to prevent prosecutions like this one - based on alleged, vague discussions that supposedly took place, but were never acted upon.

What Abu Ali's Case Signifies for America and the Rule of Law

The next development in the Abu Ali case may be a plea agreement. The government's case is obviously weak, and its evidence depends on conduct that many view as unconstitutional - even appalling.

The government will be in the same bind it is in the Zacarias Moussaoui case. There, it has successfully argued that it cannot produce witnesses because they are of such high intelligence value to the government that they have to be kept in secret. It has also argued that given that this is the case, the defendant can't subpoena these witnesses because their appearance, pursuant to Moussaoui's Sixth Amendment right to face his accusers, would be a grave threat to national security.

If prosecutors offer Abu Ali a deal and he refuses, he will sit in jail for years as the case winds it way through appeal after appeal, as his occurred in the Moussaoui saga.

If Abu Ali pleads guilty, he will no doubt be placed under a gag order, like that imposed on John Walker Lindh. It will require, most certainly, that he never speak in public about anything related to the court case, or about what happened to him while he was in Saudi custody.

The plea agreement may also require that Abu Ali return to Saudi Arabia - as the agreement the government entered into with U.S. citizen Yaser Hamdi did - even though that means he will be separated from his family. (The agreement followed upon Hamdi's victory in his Supreme Court case.)

Speaking of his family, Abu Ali's family have not been able to visit him since his return because they refused to agree to the government's rules: An FBI agent had to be present during the visits, all their communications had to be in English, and they could make no comment to anyone, including the press of course, about any aspect of their visit. Is it any wonder they refused?

To add insult to injury, the family has been ordered not to "communicate" with their son in the courtroom. Did this extend to a smile, a loving glance, they asked the magistrate?

If Abu Ali's case does end in a plea agreement - or, worse, in a precedent blessing this prosecution as constitutional - Americans' rights will have been very significantly diminished.

Such a result will mean that this nightmare is viewed as an entirely legal reality: The U.S. can work with a foreign government to arrest and imprison a U.S. citizen and torture him. It can allow the imprisonment to go on indefinitely; Abu Ali's took over twenty months.

Citizens of U.S. allies, too, should beware: Canadian citizen Maher Arar was kidnapped by CIA operatives from New York's Kennedy airport, and taken to Syria for "questioning." There he remained for a year, until Syria got annoyed with the United States and returned Arar to Canada.

Then, if the U.S. (or allied country) citizen confesses under torture - and virtually everyone does, even if the confession is a lie - the U.S. may try to use the confession against him in a U.S. court, as well in a foreign court. (We don't know why the intended Saudi prosecution of Abu Ali got sidetracked. Could it be because the Saudis thought, as did the Syrians about Maher Arar, that no crime had been committed?)

But, readers may object, what if the U.S. really thinks Abu Ali is a terrorist? The answer is that the U.S. can still protect its citizens from him - consistent with the Constitution.

How? The U.S. could have promptly extradited him from Saudi Arabia to face charges here. Once he was here, it could have honored his right, as a U.S. citizen, to an attorney, a speedy trial, and a right to pretrial release unless the government proved that he was a danger or a flight risk.

This is not too much to ask. And it is what the Constitution requires.

Stewart will be sentenced on July 15. She may serve up to thirty years in prison. Appeals are expected to consume years. In the meantime, Stewart will lose her right to practice law and face hard prison time.

The eavesdropping on attorney-client communications that led to this prosecution would have been unimaginable before September 11. I will argue that this eavesdropping has a serious cost in inhibiting defense attorney's ability to zealously represent their clients. This cost is of a constitutional dimension: The Sixth Amendment's right to counsel cannot be served while the government is a third party present at attorney-client meetings.

Another problematic aspect of the Stewart prosecution is how far the definition of support for terrorism was stretched. Stewart never provided any financial support, weaponry -- or any other concrete aid -- for any act of terrorism. No act of terrorism is alleged to have resulted from her actions.

Stewart's supposed support for terrorism instead consisted of aiding her client in 2000 by giving a press release to Reuters News Service in Cairo, Egypt, and of being present when her co-defendants allegedly aided her client in writing a series of letters.

The Facts of the Case

Stewart was appointed by a federal court to represent Egyptian Sheik Omar Abdel Rahman. Rahman was convicted of conspiring to commit acts of terrorism in New York City in the months after the 1993 World Trade Center bombings. But Stewart had nothing to do with that conspiracy.

Rahman is currently serving a life sentence in federal prison hospital in Colorado (previously, he was serving his sentence in Minnesota).

Stewart continued to represent Rahman, after he was convicted, and his appeals were denied. She has said that her representation had two main purposes. One was trying to improve the terms of the blind and diabetic Sheik's confinement. Another was to try to convince the U.S. to return him to his home country, Egypt.

The government, however, claimed that her continued representation was a ruse so that she could aid the Sheik in getting messages out to his followers, members of the Islamic Group, an organization tied to terrorism.

For a time, the government simply denied Stewart access to her client. But in 2000, the Justice Department said that visits could resume if Stewart would agree to certain restrictions on their meetings.

As I explained in an earlier article, these restrictions are known as Special Administrative Measures (SAMs). Pursuant to regulations enacted in 1996, these restrictions can be placed on a federal prisoner's communications or contacts with the outside world - including visitors, and the media -- when the government believes "that there is a substantial risk that a prisoner's communications or contacts with persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons."

The SAMs prohibited Stewart from having any contact with her client that the Department of Justice deemed to be outside the scope of "legal representation" and prohibited Rahman from having contact with anyone outside prison walls except his wife. The SAMs specifically restricted his access to the media.

Stewart agreed to the SAMs - having little choice, as it was the only way she could visit her client.

What Stewart did not know what that after she signed the SAMs, the government began surveillance of her visits, first under the 1994 Foreign Intelligence Surveillance Act warrant targeting her client, and then under specific regulations that allowed them to target her.

The Eavesdropping Regulation: How the Government Made Its Case

On October 31, 2001, Attorney General John Ashcroft, secretly amended the SAM regulations - without notice to the public. As amended, the regulations allow the Bureau of Prisons to conduct videotape and audiotape surveillance with respect to attorneys' communications with people in federal custody.

There is no exception for attorney-client privileged communications; indeed, the regulations contemplate that these sacrosanct conversations will be the very ones surveilled. Moreover, the regulations apply not only to convicted persons, but also to defendants awaiting trial - and even detainees against whom no charges are even pending. Finally, the surveillance can be broad: It can done "to the extent determined to be reasonably necessary for the purpose of deterring future acts of violence or terrorism."

No warrant is necessary for the surveillance to occur. Nor is specific notice to the attorney or the client that they will be monitored; according to the regulations. Rather, routine notice that their communications "may" be monitored is enough.

The government eavesdropped on Stewart's communications with Rahman - and these communications, along with her subsequent communications with the media, are the sole basis for her conviction.

The government alleges that Stewart never intended to abide by the SAMs, and that - as, it say, it discovered by eavesdropping - she violated them in several ways.

Along with Mohammed Yousry, an interpreter, and Ahmed Abdel Sattar who sometimes acted in the role of a law clerk, the government alleges, Stewart tried to thwart the government's surveillance. At trial, the government introduced surveillance tapes intending to demonstrate that Stewart served as a willing conduit for the Sheik, using her position as a lawyer as a smokescreen for illegal communications and conspiracies by people whose agenda she shared.

In particular, the government charges, Stewart violated the prohibition on outside contacts in two ways. First, it alleged in 2000, she released to Reuters News Service a statement from the Sheik to his followers saying that he was "withdrawing his support for a ceasefire that currently exists" with respect to violence that his followers in Egypt were engaged in (the cease-fire was declared after 58 tourists were slain in Luxor, Egypt, in a bid to win the sheik's release). The government charged that the press release was a veiled message for the shiek's followers to engage in violence. Reuters ran a story about the statement in Arab newspapers.

Second, the government says Stewart was present when Yousry and Sattar allegedly helped the Sheik compose letters that served as communications to his followers. (Notably, though, while Yousry and Sattar speak Arabic, it is undisputed that Stewart neither speaks nor understands Arabic.)

In closing arguments, Prosecutor Andrew Dember argued that Stewart and the co-defendants effectuated a virtual "jail-break," in which Rahman did not actually get sprung from prison, but did get his messages of violence out to the world.

Yet no actual act of violence, terroristic or otherwise, has ever been linked to either the letters to the Sheik's followers, or the statement by the Sheik given to Reuters.

Yousry was convicted on the same charges as Stewart; Sattar was convicted of conspiracy to murder civilians.

The Constitutional Issues The Eavesdropping Regulations Raise

Stewart herself was represented by famed civil rights and criminal defense attorney Michael Tigar. Tigar argued, on her behalf that the surveillance regulation was unconstitutional - and thus that evidence procured as a result of surveillance should not be admissible at Stewart's trial. Although Tigar and Stewart lost their motion, their argument was a strong one.

The Sixth Amendment guarantees a criminal defendant's right to counsel. The Ashcroft eavesdropping regulations are unprecedented in the way they interpose the government between a client and his or her attorney - and thus violate this right. How can a defendant be expected to speak openly and candidly with counsel, and contribute to his own defense, when the government is listening on every conversation, recording every gesture, following every move?

The trial judge in the case, John G. Koeltl, should have suppressed the eavesdropping evidence, but instead, he ruled against Stewart. He did, however, rule for her on another constitutional claim.

Judge Koeltl's Rulings on the Terrorism Claims

Remember, Stewart was convicted of defrauding the government, conspiracy, and providing support for terrorism.

The "defrauding the government" charge was weak: It was based on the government's allegation that Stewart never intended to abide by the SAMs, as she had agreed to do. But it seems likely that Stewart's intention, instead, was to abide by the SAMs in order to continue to represent her client.

Moreover, the original terrorism charge against Stewart was unconstitutional, as Judge Koeltl held. Initially, Stewart was charged under a federal statute that prohibited providing "material support" for terrorism - regardless of one's intent in doing so.

The government said Stewart violated the statute by making Rahman's message available to the press. (Where was the "material" support? The government said it came in the form of "personnel" - meaning, Stewart herself.)

Judge Koeltl wisely reasoned that to prosecute Stewart under this theory was unconstitutional. She lacked sufficient notice that the statute would be applied this way - to prohibit a news release, rather than, say, the provision of weaponry. He ruled that the statute applied to the facts of Stewart's case was too vague to satisfy Due Process requirements.

So the government, as it explained in a press release, then indicted Stewart for the same acts again, under another federal statute - one that, unlike the first statute, requires intent.

Passed in 1994, after the 1993 bombing of the World Trade Center, the statute prohibits defines a violation as giving material support to anyone while intending or knowing that the support will be used in connection with any one of a list of violent crimes.

What violent crime did the government cite? It claimed Sattar was alleged to have been conspiring to commit terrorism abroad, urging Rahman's followers to kill Jews. But again, no such crimes have ever been linked to the Reuters news release.

This time, Judge Koeltl found the statute, as applied, to be constitutional. But in doing so, he interpreted the intent standard to require very specific proof: proof that

Stewart knew she was providing resources to carry out a specific violent crime.

The Stewart Conviction is a Warning to Defense Attorneys

Stewart's defense team had doubts that the prosecution could carry this strong burden of proof. Though the facts were basically not in dispute, Tigar argued that Stewart was acting as a zealous advocate.

The ABA's Code of Professional Conduct demands zealousness of lawyers. It also mandates that lawyers make their services available to unpopular causes. Stewart was fulfilling both duties by agreeing to serve as court-appointed attorney for Rahman, the defense argued.

Stewart admitted she violated the SAMs, but she was duty-bound to do so, she said. What self-respecting defense attorney, she contended, would let a government restriction stand in the way of the confidential attorney-client relationship?

Through helping with the news release, Tigar maintained, Stewart, as his lawyer, was trying to keep her client's case before the public and the government, and ultimately hoping to gain his release to Egypt.

The government countered, and the jury agreed, that when she so spoke, and aided her co-defendants in speaking, she was no longer acting as a lawyer. She was aiding and abetting terrorism.

Prior to September 11, 2001, many attorneys might have sided with Stewart. They would certainly have seen a blatant Sixth Amendment violation in both the SAMs and the eavesdropping regulations - and possibly seen First Amendment violations when it came to the SAMs. And they might also have agreed that to honor the right to counsel, an attorney ought to try to resurrect the traditional attorney-client relationship despite these unconstitutional constraints.

Now, however, the First and Sixth Amendments have been gutted--at least in terms of the attorney-client relationship. Indeed, as I argued in the first article I wrote about Stewart, the government seems to be conducting an all-out assault on the right to counsel.

Defense attorneys who represent alleged terrorists - or even detainees who are merely suspected of some connection to terrorism -- now know that the government may listen in on their attorney-client communications. They also know that this eavesdropping may give rise to evidence that may be used in their own prosecution for terrorism if they cross the imaginary line drawn by the government.

How can these attorneys be zealous advocates with this government-inspired fear overshadowing their every word?

If the attorneys are prosecuted, they can expect, at trial, to be conflated with their clients - just as Stewart was. The prosecution showed an old tape of Osama bin Laden promising revenge if Rahman were not released. In a courtroom only a short distance from Ground Zero, the tape must have meant a great deal. But it related to Rahman, not Stewart. Though Rahman may be a Bin Laden confederate, that does not mean his attorney is.

The larger issue here is not whether Stewart "stepped over the line" from lawyer to criminal co-conspirator, as the jury verdict implies. Nor is it whether terrorism fears caused the jury to reach an irrational verdict - as may well be the case. The larger issue is that those who face terrorism-related charges will now be entitled to a government-crippled defense.

The Ashcroft Justice Department showed disdain for attorneys--save its own. Unfortunately, the Gonzales Justice Department likely will be even worse on this score. Referring to the Stewart verdict, Gonzales was quick to warn that he would "pursue both those who carry out acts of terrorism and those who assist them with their murderous goals." (Emphasis added.)

This is pure hyperbole - treating Stewart's willingness to assist her client in putting out a press release as the moral equivalent of financing or arming terrorists. It furthers the lie that a terrorist's lawyer, by zealously representing her client, at the same time aids and abets terrorism.

Hundreds of prisoners alleged to be terrorist combatants sit in cages and cells in Guantanamo Bay, Cuba. Every one, according to the Supreme Court, has the right to challenge his detention in federal court, through the ancient writ of habeas corpus.

What attorneys will risk their licenses --and life in prison --in order to protect their rights.

The eavesdropping on attorney-client communications that led to this prosecution would have been unimaginable before September 11. I will argue that this eavesdropping has a serious cost in inhibiting defense attorney's ability to zealously represent their clients. This cost is of a constitutional dimension: The Sixth Amendment's right to counsel cannot be served while the government is a third party present at attorney-client meetings.

Another problematic aspect of the Stewart prosecution is how far the definition of support for terrorism was stretched. Stewart never provided any financial support, weaponry -- or any other concrete aid -- for any act of terrorism. No act of terrorism is alleged to have resulted from her actions.

Stewart's supposed support for terrorism instead consisted of aiding her client in 2000 by giving a press release to Reuters News Service in Cairo, Egypt, and of being present when her co-defendants allegedly aided her client in writing a series of letters.

The Facts of the Case

Stewart was appointed by a federal court to represent Egyptian Sheik Omar Abdel Rahman. Rahman was convicted of conspiring to commit acts of terrorism in New York City in the months after the 1993 World Trade Center bombings. But Stewart had nothing to do with that conspiracy.

Rahman is currently serving a life sentence in federal prison hospital in Colorado (previously, he was serving his sentence in Minnesota).

Stewart continued to represent Rahman, after he was convicted, and his appeals were denied. She has said that her representation had two main purposes. One was trying to improve the terms of the blind and diabetic Sheik's confinement. Another was to try to convince the U.S. to return him to his home country, Egypt.

The government, however, claimed that her continued representation was a ruse so that she could aid the Sheik in getting messages out to his followers, members of the Islamic Group, an organization tied to terrorism.

For a time, the government simply denied Stewart access to her client. But in 2000, the Justice Department said that visits could resume if Stewart would agree to certain restrictions on their meetings.

As I explained in an earlier article, these restrictions are known as Special Administrative Measures (SAMs). Pursuant to regulations enacted in 1996, these restrictions can be placed on a federal prisoner's communications or contacts with the outside world - including visitors, and the media -- when the government believes "that there is a substantial risk that a prisoner's communications or contacts with persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons."

The SAMs prohibited Stewart from having any contact with her client that the Department of Justice deemed to be outside the scope of "legal representation" and prohibited Rahman from having contact with anyone outside prison walls except his wife. The SAMs specifically restricted his access to the media.

Stewart agreed to the SAMs - having little choice, as it was the only way she could visit her client.

What Stewart did not know what that after she signed the SAMs, the government began surveillance of her visits, first under the 1994 Foreign Intelligence Surveillance Act warrant targeting her client, and then under specific regulations that allowed them to target her.

The Eavesdropping Regulation: How the Government Made Its Case

On October 31, 2001, Attorney General John Ashcroft, secretly amended the SAM regulations - without notice to the public. As amended, the regulations allow the Bureau of Prisons to conduct videotape and audiotape surveillance with respect to attorneys' communications with people in federal custody.

There is no exception for attorney-client privileged communications; indeed, the regulations contemplate that these sacrosanct conversations will be the very ones surveilled. Moreover, the regulations apply not only to convicted persons, but also to defendants awaiting trial - and even detainees against whom no charges are even pending. Finally, the surveillance can be broad: It can done "to the extent determined to be reasonably necessary for the purpose of deterring future acts of violence or terrorism."

No warrant is necessary for the surveillance to occur. Nor is specific notice to the attorney or the client that they will be monitored; according to the regulations. Rather, routine notice that their communications "may" be monitored is enough.

The government eavesdropped on Stewart's communications with Rahman - and these communications, along with her subsequent communications with the media, are the sole basis for her conviction.

The government alleges that Stewart never intended to abide by the SAMs, and that - as, it say, it discovered by eavesdropping - she violated them in several ways.

Along with Mohammed Yousry, an interpreter, and Ahmed Abdel Sattar who sometimes acted in the role of a law clerk, the government alleges, Stewart tried to thwart the government's surveillance. At trial, the government introduced surveillance tapes intending to demonstrate that Stewart served as a willing conduit for the Sheik, using her position as a lawyer as a smokescreen for illegal communications and conspiracies by people whose agenda she shared.

In particular, the government charges, Stewart violated the prohibition on outside contacts in two ways. First, it alleged in 2000, she released to Reuters News Service a statement from the Sheik to his followers saying that he was "withdrawing his support for a ceasefire that currently exists" with respect to violence that his followers in Egypt were engaged in (the cease-fire was declared after 58 tourists were slain in Luxor, Egypt, in a bid to win the sheik's release). The government charged that the press release was a veiled message for the shiek's followers to engage in violence. Reuters ran a story about the statement in Arab newspapers.

Second, the government says Stewart was present when Yousry and Sattar allegedly helped the Sheik compose letters that served as communications to his followers. (Notably, though, while Yousry and Sattar speak Arabic, it is undisputed that Stewart neither speaks nor understands Arabic.)

In closing arguments, Prosecutor Andrew Dember argued that Stewart and the co-defendants effectuated a virtual "jail-break," in which Rahman did not actually get sprung from prison, but did get his messages of violence out to the world.

Yet no actual act of violence, terroristic or otherwise, has ever been linked to either the letters to the Sheik's followers, or the statement by the Sheik given to Reuters.

Yousry was convicted on the same charges as Stewart; Sattar was convicted of conspiracy to murder civilians.

The Constitutional Issues The Eavesdropping Regulations Raise

Stewart herself was represented by famed civil rights and criminal defense attorney Michael Tigar. Tigar argued, on her behalf that the surveillance regulation was unconstitutional - and thus that evidence procured as a result of surveillance should not be admissible at Stewart's trial. Although Tigar and Stewart lost their motion, their argument was a strong one.

The Sixth Amendment guarantees a criminal defendant's right to counsel. The Ashcroft eavesdropping regulations are unprecedented in the way they interpose the government between a client and his or her attorney - and thus violate this right. How can a defendant be expected to speak openly and candidly with counsel, and contribute to his own defense, when the government is listening on every conversation, recording every gesture, following every move?

The trial judge in the case, John G. Koeltl, should have suppressed the eavesdropping evidence, but instead, he ruled against Stewart. He did, however, rule for her on another constitutional claim.

Judge Koeltl's Rulings on the Terrorism Claims

Remember, Stewart was convicted of defrauding the government, conspiracy, and providing support for terrorism.

The "defrauding the government" charge was weak: It was based on the government's allegation that Stewart never intended to abide by the SAMs, as she had agreed to do. But it seems likely that Stewart's intention, instead, was to abide by the SAMs in order to continue to represent her client.

Moreover, the original terrorism charge against Stewart was unconstitutional, as Judge Koeltl held. Initially, Stewart was charged under a federal statute that prohibited providing "material support" for terrorism - regardless of one's intent in doing so.

The government said Stewart violated the statute by making Rahman's message available to the press. (Where was the "material" support? The government said it came in the form of "personnel" - meaning, Stewart herself.)

Judge Koeltl wisely reasoned that to prosecute Stewart under this theory was unconstitutional. She lacked sufficient notice that the statute would be applied this way - to prohibit a news release, rather than, say, the provision of weaponry. He ruled that the statute applied to the facts of Stewart's case was too vague to satisfy Due Process requirements.

So the government, as it explained in a press release, then indicted Stewart for the same acts again, under another federal statute - one that, unlike the first statute, requires intent.

Passed in 1994, after the 1993 bombing of the World Trade Center, the statute prohibits defines a violation as giving material support to anyone while intending or knowing that the support will be used in connection with any one of a list of violent crimes.

What violent crime did the government cite? It claimed Sattar was alleged to have been conspiring to commit terrorism abroad, urging Rahman's followers to kill Jews. But again, no such crimes have ever been linked to the Reuters news release.

This time, Judge Koeltl found the statute, as applied, to be constitutional. But in doing so, he interpreted the intent standard to require very specific proof: proof that

Stewart knew she was providing resources to carry out a specific violent crime.

The Stewart Conviction is a Warning to Defense Attorneys

Stewart's defense team had doubts that the prosecution could carry this strong burden of proof. Though the facts were basically not in dispute, Tigar argued that Stewart was acting as a zealous advocate.

The ABA's Code of Professional Conduct demands zealousness of lawyers. It also mandates that lawyers make their services available to unpopular causes. Stewart was fulfilling both duties by agreeing to serve as court-appointed attorney for Rahman, the defense argued.

Stewart admitted she violated the SAMs, but she was duty-bound to do so, she said. What self-respecting defense attorney, she contended, would let a government restriction stand in the way of the confidential attorney-client relationship?

Through helping with the news release, Tigar maintained, Stewart, as his lawyer, was tryin