"Criminal" representation

The most disturbing article from the June issue of Reason is not, it turns out, Declan McCullagh's strangely upbeat "Database Nation". It's Jarett Decker's "Criminal Representation", which discusses a legal theory recently put forth by the Bush Administration's "Department of Justice", based on a little-noted section of the so-called "PATRIOT ACT".

One provision that passed without scrutiny was Section 805(a)(2), which expanded the definition of "material support" to foreign terrorist organizations. Under the AEDPA, "material support" already included financing, weapons and explosives, lethal substances, training, personnel, facilities, lodging, safe houses, communications equipment, transportation, and "other physical assets." The PATRIOT Act added a new item to the litany of the banned: "expert advice and assistance." There is no legislative history to explain why the addition was necessary, or what the Justice Department draftsmen had in mind. That would not become clear until the prosecution of Lynne Stewart.

In a June 2003 hearing in Stewart’s case, Assistant U.S. Attorney Christopher Morvillo acknowledged that Stewart could not be charged under the PATRIOT Act with providing "expert advice and assistance" to the Islamic Group because her conduct predated the law. But Morvillo stressed that the "expert advice and assistance" banned by the PATRIOT Act includes legal representation. Then, in a remarkable June 27, 2003, letter to the presiding judge, Assistant U.S. Attorney Robin Baker explained that under the Justice Department’s interpretation, an attorney could be convicted of a crime for representing a client allegedly associated with a foreign terrorist organization "IF the foreign terrorist organization has been designated as such by the Secretary of State -- and IF the government could prove that the attorney was acting under the direction and control of the foreign terror organization" -- even if the attorney did nothing but provide "bona fide legal services."

The intent is quite, quite crystal clear. The intent is to effectively strip anyone unilaterally labelled by the Bush as a "terrorist" of all rights to legal representation by threatening to prosecute any attorney who represents them. And, as you may recall, the Bush Administration asserts that it has the unilateral power to declare anybody, at any time, to be a "terrorist" or "enemy combatant" without so much as a court hearing.

Once again, we see the religion, the God, the whole of the political philosophy of the Bush administration: Power by any means necessary. Raw power, rammed down the throat of anyone who disagrees at the point of a gun or the brandishing of a secret Presidential decree. No rights. No representation. Constitution? Bill of Rights? Never heard of 'em. Rip 'em up. Use 'em for toilet paper.

If that's the kind of world you want, by all means vote for Bush. If you want something else -- like, say, that much-heralded democracy that we're supposedly exporting to the Middle East at the point of a gun -- vote to throw the bums out before they do any more damage. And then pray that the votes actually get counted, and that the War Party doesn't concoct an "October Surprise" to sway the election or even cancel it.

This administration is the only one that has ever made me wonder, not about the outcome of the next election, but whether there will be an election at all.