Alright y'all, welcome back to the show, it's Anti-War Radio, I'm Scott Horton, and my next guest on the show is a civil liberties attorney named Elaine Castle, she's the author of the book The War on Civil Liberties, How Bush and Ashcroft Have Dismantled the Bill of Rights.
I expect an updated version to come out soon about Obama and Holder.
Welcome to the show.
How are you?
Hi, Scott.
Thanks for having me.
It's good to be back.
Yes, it's been way too long since we've spoken.
If people want to go back through the archives, there are probably a dozen interviews of Elaine from back in the days.
But hey, are you still blogging anywhere?
No, I just have no time to blog.
And the news just never changes.
You know, I mean, I really got, I really got tired of it, frankly.
But I didn't realize that all of the transgressions of the past are going to continue in this administration.
It's very discouraging.
Very discouraging.
Yeah, it might be a mistake to have hope for change, because then you'll be disappointed.
Yeah, I don't think so.
Yeah, I agree with you.
I think we, a lot of us had hope, but there certainly hasn't, hasn't been any changes in the areas that I wrote about.
And this Lynn Stewart case is just really heartbreaking.
Yeah, well, welcome to my world.
Prison term extended for lawyer who aided 1993 World Trade Center bomber reads the headline at Fox News today.
And this is about Lynn Stewart.
Now, is she was she actually a friend of yours?
You know her, right?
No, she wasn't a friend of mine.
I wrote about her.
So I wrote about her and I just had some contact through her lawyer and with her lawyer and her when when the trial was ongoing.
Yeah, honestly, I haven't even, I haven't looked into the case since we talked about it.
And that was back when she first got in trouble.
So go ahead.
Yes, she was, she was convicted.
And, you know, she was convicted of aiding and abetting terrorism and several other charges.
Because of a couple of actions that she took with regard to her client, who was the blind sheik, who was involved in the first World Trade Center bombing attempt in 1993, I believe.
And she was a court appointed attorney.
Ironically, for him, she was not paid to represent him.
In fact, she did an extraordinary amount of court appointed work during her life time, many of her high profile cases and controversial cases.
She was appointed by the federal courts to represent these people.
But they charged that under Ashcroft, the charges were brought under Ashcroft, charged that she aided and abetted terrorism by comments she made to the press in quoting her client.
And by efforts she took in the prison when she visited him, who had long since been convicted and sentenced to life in prison, to interfere with the prison recording of her conversations with her client when she went to visit.
What people may not realize is that when people visit, when clients visit people in prison who have been labeled as terrorists, their communications with their attorneys are, are surveillance is conducted, they may take them, they may film them.
So they take, she made efforts to interfere with them, you know, taping.
In other words, she tried to make noises so that it would be difficult to hear the conversations that she was having with her client.
So she was convicted, and she was sentenced to less than three years in prison.
The government, she appealed her own conviction.
And at the same time, the government appealed the Senate saying they wanted 30 years, and that she was, you know, she could have gotten 30 years for this terrorism charge, a terrorism charge.
So it went the Court of Appeals, to which the prosecution appealed, agreed that the judge was, quote, too lenient.
There are federal sentencing guidelines, which, by the way, are voluntary.
The judge does not have to use them.
But a judge has to explain when he deviates from them.
Judge Coddle, in this case, said he deviated from those guidelines and paid for three years, less than three years, because of her work that she had done over the years.
At that time, she was 69 years old.
I think she's now 70.
All of her lifetime of work, which was, you know, respected by the court, the fact that of her age, the fact that she had breast cancer.
However, her sentence in court, finding that he was too lenient, it went back to Judge Coddle, and he sentenced her to 10 years.
10 years.
10 years.
So she'll die there.
That's a life sentence for her.
All right, now let me make sure I understand this right.
So this woman was appointed by the federal court to represent the blind sheik Omar Abdel-Rahman.
Correct.
She represents him.
There's a loophole in the law that says that normal attorney-client privilege is suspended in the case where there's a terrorist involved or an accused terrorist involved.
And so one thing she got busted for was making noise while he was talking so that they couldn't overhear her should-have-been-privileged conversation.
That was one thing.
Right.
That's correct.
And then the second thing was she made a statement to the press that they said aided terrorism.
Can you be more specific about this?
Yes.
This was the time of his conviction and after, which was in the late 90s.
There were these bombings going on in American embassies abroad.
I don't know if you recall that, but there were some in Africa, for instance.
And so a Reuters reporter asked her after a prison visit, she came out and they were waiting, you know, press was waiting, whether the sheik was going to advise his proponents or, you know, his people to stop the bombing.
And she said, I don't think so, or something to that effect.
Okay.
The federal government said that her giving that, answering that question was a veiled statement to his supporters to continue the bombing.
And that was where the charge began, that that was aiding and abetting terrorism by basically saying what her client had said.
And then they went back and I mean, I can't tell you what order, but I do know that what then came to forward were collecting all the surveillance tapes of her visits and things like that.
That was basically it.
If I can play the devil's advocate here, you know, meaning the Department of Justice, those guys, could it have been that she was actually, you know, doing her client a favor and sending a message like that?
Or this was simply just an honest, simple answer, maybe a thoughtless answer to a question and that she didn't mean anything by it?
What do they call that?
The mens rea or whatever?
Was she trying to commit a crime here?
Or is it just open and shut?
Is it open and shut case to you, Elaine, that she didn't mean anything by this?
Or maybe they have a case, but still she's just a lawyer.
And so she's allowed to do things like that or what?
I think that all of the above, well, first of all, I don't, of course, I don't know, okay, because not having been there and not having read all the transcripts of the trial, but I do know that most cases, an attorney would not be hung in a sense for saying what their client said.
I mean, that's, you know, we hear that all the time.
You hear it in the, you know, in the Supreme Court confirmation hearings.
You said so-and-so when you were representing so-and-so, right?
Well, I was just being a lawyer, right?
So I don't, I don't think that anybody knows.
I don't think anybody thinks that she was a terrorist or was aiding and abetting terrorists.
I think people, I think the prevailing view, I mean, of people that are lawyers like me and weren't there, was that she was, she went to the line and represented her client, not in that statement, but say, for instance, in trying to interfere with the government surveillance of the visits.
You know, that's wrong.
That's wrong.
You can't do that.
Yeah.
All right.
Now, hold on right there.
We'll get back to those guidelines and the message to the news and all that.
With Elaine Katz, we'll get back right after this, y'all.
All right, everybody.
Welcome back to the show.
It's Anti-War Radio.
I'm Scott Wharton, and I'm talking with Elaine Katz.
I'm very happy to be talking with Elaine Katz.
I'm talking about the case of Lynn Stewart.
She is the lawyer for Khalid Sheikh Mohammed, and she went to prison.
And now I think you were saying right there when I cut you off, Elaine, that there was a problem with the whole violating the prison guidelines, dealing with her client, even if she didn't agree in the violation of her attorney-client privilege.
Or were you saying that, no way, they were violating her attorney-client privilege, and that's what was wrong?
No, you've got to play by the rules when you're an attorney.
And so when the rules are there, I mean, you can't set out to break them or interfere with them in any way.
So I think that most people that I've talked to would concede that she pushed the envelope there.
But the question would be, should you be charged with an act of terrorism for that?
And, of course, you're going to lose your bar license anyway because you've been convicted of a felony.
Should you've been charged as a terrorist with all that that brings down on your head, such as potential of 30 years or more in prison?
So it was just like, it was like a horrible, talk about throwing the book to someone who had spent their life representing people, mostly court-appointed, so it wasn't someone who had made a lot of money.
But let me just add one other thing.
As a criminal defense attorney myself, she did not show any humility or remorse when she was found guilty and sentenced.
And I believe the fact that she made some comment after she had been sentenced to 32 months, and this is what she's quoted as saying, I could do 32 months standing on my head, that's no big deal.
I think that infuriated the judge.
I've seen this happen to myself representing people.
Even though you disagree with the verdict, once you have been convicted, you must admit your guilt, show remorse, and beg for mercy.
And certainly the judge, who, I mean, I don't think he should have convicted her.
Remember, this was a jury trial, but the judge does the sentencing in federal court.
And I do think the judge was trying to do her a favor.
He gave her only three years.
Remember, jury trial, so you've got, you know, the judge doesn't decide whether you're guilty or not.
But I think that he got heat from the prosecutor when he let that, you know, are you going to take this, what she said about this, right?
He brought that up in the sentencing.
And she said at the sentencing, apparently yesterday, well, I learned that I was wrong about that because it's not easy to do time.
So, I mean, there was a mistake there.
That's a tactical and a behavioral mistake.
And I think that she will most likely die in prison.
It's a horrible result.
I'm distressed that the Obama Justice Department pursued the case.
But you know, they've been with other cases I wrote about.
Cases, going back to a person I wrote about who had been held in Saudi Arabia at the behest of the Obama Justice Department.
Abu Ali was his name, and people can go to Fine Law and read my articles.
And he was, and you know, he's now been sentenced to life.
The judge there sentenced him to 30 years in Alexandria, which was the equivalent of life.
The prosecution appealed, and in the past few months, again, the Obama Justice Department, he was sentenced to life.
And that was the case where the kid was going to school in Saudi Arabia, was a citizen of Falls Church, Virginia, and he was literally held there by the Saudis.
And I talked to someone in the government last week, two weeks ago, who investigated that case, and who knew that he had been tortured in Saudi Arabia, and talked about how that was an example of just, you know, the system just going out of its way to show that you get tough on terrorism.
Well, we expected that under the Bush Justice Department, but we didn't expect that under Obama.
Wow, okay.
Now, a couple of things.
So, I mean, that's, and again, that family is just devastated.
This is devastated.
Because this young man in his 20s, oh, he'll be there forever, right?
It's a life sentence, and you know there is no parole in federal court.
There's no parole from the federal sentence.
Okay.
They serve your time.
Now, hang on a second here, because I want to ask you all about the Abu Ali case here in a second.
I remember well from back then when we talked about it years ago.
But as far as what you said about after the conviction, you have to admit your guilt and all that.
Not necessarily right, but you're not supposed to smart off to the judge.
But you could say, no sir, I stand by my belief in my innocence, and I'll just have to take my licks, but I'm still not conceding.
Well, you do that at your peril.
Right, right.
I mean, it's not an advisable tactic.
It's not an advisable tactic, because if you ever want to come back and get any type of post-conviction relief, say you want an exception to parole because you're dying, okay?
So you can't make an exception or something.
You know, there are things you can ask to be moved to a different prison.
Could you just have your lawyer say, judge, he stands by his innocence?
Well, I mean, I'm just saying if you say anything at all, you should say I'm sorry.
I mean, you're not compelled to say anything.
There are people that don't say anything in court.
You know, and the judge asks you if you say anything, you know, you want to say anything.
But if the judge, you have the opportunity to say something after your sentence.
Some people say nothing.
What they're looking for you is to say you're sorry.
You might say I disagree, but I'm sorry for what I did.
I just tried to cut.
That's the way you have to play it.
Right, right.
I understand.
But if you're going to say anything, you can't really go, you can't really mock the sentence and say that's no big deal.
I mean, my gosh, if a client did that, I would just be, you know, shrinking and thinking, oh, my God.
Because you got to realize the arrogance, too, of these judges, man.
And they know they've got the power.
They want you to admit it, that they have your life in their hands.
Right now, it sort of sounds like, you know, one of my questions is going to be whether this signals a real chilling effect.
And one of the signposts on the abandonment of the rule of law in America.
But it sort of sounds like what you're saying about what she said, her sentencing, her original sentencing kind of mitigates that.
This is really well, like you said, the judge was trying to cut her a break.
But, you know, should other do you think that other lawyers will be dissuaded to try to represent somebody like Khalid Sheikh Mohammed, assuming that they get a civilian trial anywhere?
Well, look, I think that I'm sure that all of the lawyers that I know that do this type of work know the risk at which they are working.
And know that when they take a case, like, you know, the people that are representing the Guantanamo defendants, all of those people have surveillance conducted on them.
We already know that.
I mean, the National Security Administration has their phone numbers.
So they already know they're taking an enormous risk.
And I'm sure that they are extremely careful to follow the rules.
I'm telling you, they do it at huge risk to themselves and their families, because the slightest thing that they say or do, I know the message they have to get from the Stewart case.
And they got that years ago when she was arrested, by the way, is that you have to be extremely careful.
And so it's a very stressful position.
Again, Scott, keeping in mind, you're being paid a pittance by the court to do this work.
So you're doing this out of the kindness of your heart.
I know, by the way, this is a whole other topic.
But, you know, there was a case of one of the, and I can't remember his name right now, one of the military lawyers at Guantanamo who had been appointed to represent someone at Guantanamo.
In other words, he's military, right?
So, you know, when they were doing the, you know, the whatever they call them down there, you know, the trials they were having at Guantanamo that weren't really trials.
And do you know that he was, and I wrote about this too, Scott, he was denied a promotion.
And subsequently left the military and he was denied because of his aggressive defense.
Not that he did anything wrong, okay?
He was doing his job as a military defense attorney appointed to represent this person who's since written a book about it.
And maybe if you send me an email, I'll try to find this information for you.
Because I went to, I went and met him when he talked about his book.
But he was, he was going to stay in for life.
He was denied a promotion and thus, and then he resigned from the military.
Yeah, well, and there were...
So it's not just in the civilian world where this happens, it's in the military with defense attorneys.
And Len Stewart, I think, maybe went a step or two too far further than I would go.
Hey, Elaine, let me keep you another ten minute segment here.
Okay.
Hey, everybody, it's Elaine Castle, author of The War on Civil Liberties, How Bush and Ashcroft Started, Barack Obama's Dismantlement of the Bill of Rights.
We'll be right back.
I'm about to have a nervous breakdown.
My head really hurts.
If I don't find a way out of here.
I'm gonna go to jail cause I'm crazy and I'm hurt.
Alright, y'all, welcome to the show.
Back to it.
We're actually finishing off the show right now, last segment.
Talking with Elaine Castle.
She is a civil liberties attorney and author of The War on Civil Liberties, How Bush and Ashcroft Have Dismantled the Bill of Rights.
And she's a former regular guest on my show and hopefully will again be a regular guest on my show.
But now, okay, so a few things to go over in this last segment, Elaine.
Well, let me hit the button and turn your mic on hot there.
First of all, you were talking about this Guantanamo prosecutor who was persecuted for doing his job.
And that reminded me that it's, I forget if it's six or seven different prosecutors at Guantanamo resigned and discussed rather than participate in the fraud.
Right, and he was the defense attorney that I was speaking of.
And actually, the procedures are called military tribunals, I had forgotten.
And the case involved...
Well, you have to translate from the German, right?
Right, excuse me?
Sorry.
Right, exactly, got it.
But in the case of his client, the client was released and sent back to Australia.
This might have been David Hicks, but I'm not sure.
So, I mean, he in effect won his case in front of the military tribunal and was penalized for it.
So, I guess my point is that you don't get a lot of recognition and love for taking these very difficult cases.
And lawyers who do it do it because they feel obligated to help people who have no help but themselves.
And I used to do a great deal of court-appointed work in my case.
In today's, I'm sad to be saying that this has continued, this chilling in the Obama administration, but once Lynn Stewart was indicted, I mean, I think attorneys got the message loud and clear, they had to be extremely careful.
Why was Lynn Stewart kicked out?
Still don't know.
I guess we never really know.
I don't know why the Justice Department picked certain people to prosecute.
Who knows?
But she was by herself.
She wasn't with a big law firm.
She didn't have a lot of money.
And, you know, some of the people that I've known, the person who represented Zacharias Moussaoui in Alexandria, was in, had his own practice, but he was a very good friend of the judge who appointed him.
So, in other words, he had some buddies, you know.
So you never know what kind of things factor into who they decide to prosecute.
But they pick somebody, and they want to send a message, and by God, they sent the message with this one.
Well, now, let me ask you this now.
Has it always been this way?
Or is it just the myth that it used to be that a defense attorney was pretty safe in being a defense attorney because of the whole John Adams thing and all that, or no?
Oh, I think everything's changed.
I think, well, of course, I've only lived in this era, so I don't know about other eras, you know, like other wartime eras, but I don't think anyone is, I think everyone thinks that this is a whole different thing, and that's why I wrote the book initially, the quote, War on Terror and the Patriot Act and all of that.
All of the rules changed about everything, Scott.
We can't take a bottle of water on an airplane.
So if you look at how everything's changed, that's why I wrote the book with September 11th, and the practice of law changed, and you and I both know anything could be called terrorism.
Well, what she said, I mean, what she said and did was pushing the limits of terrorism.
I mean, if you're going to call it that, right?
I mean, you go look up what it means, material support for terrorism.
Well, look, the Supreme Court just this time ruled that lawyers who represent people, organizations that have any connection at all to terrorism, those lawyers can themselves be prosecuted.
So we have a Supreme Court decision right now.
Well, now, wait a minute.
Was that the same one that said that if you're instructing a former terrorist group how to not be in terrorist group anymore, that that still counts?
Exactly.
That's the same decision is even if you're a lawyer representing someone who tries, like, say, Jimmy Carter, who says to Hezbollah these are the standards for participating in a fair election, Jimmy Carter's lawyer could be prosecuted for that.
Jimmy Carter could be prosecuted.
And his lawyer, too, though, you're saying.
Exactly.
Anybody.
Yeah, exactly.
In fact, that was the point of the people who brought the lawsuit were lawyers.
Now, here's another thing.
The irony of that is there can be under that case decision, to take it to its most absurd and obvious conclusion, there can be no peace talks between the Israeli and the Palestinians that any American would be involved with.
So if you foster a peace negotiation between Hezbollah or Hamas, right, Hamas and Israel, you're doomed.
You're supporting terrorism because you're giving advice to Hamas.
Well, yeah.
In this specific case, it was about giving advice to the rebels in the Kurdish mountains who fight the guerrilla war against the Turks and the Iranians.
About a better way to do things.
Right, right.
They're trying to teach them how to file petitions at the United Nations.
Put down your weapons and pick up your paperwork.
Don't you love it, Scott?
Don't you love it?
Not much.
Only in America.
Right.
Only.
So absolutely.
If you give advice as a lawyer or non-lawyer to a group and show them how to do things peacefully and through the quote rule of law.
And that organization or person is on the terrorist list.
You're doomed.
You may be charged if they want to charge you.
And we never know how they pick and choose whom to prosecute.
Yeah.
So that's distressing.
You know, I kind of feel guilty because I have my list of bogus terrorism cases in my head that I kind of roll through.
And I always leave Abu Ali off the list.
Poor kid.
Let's talk about him some more.
What happened was, if I remember right, the story, Elaine, the Saudis under at least FBI, if not CIA supervision, tortured this kid into saying that he was going to come home to America and murder George W. Bush.
And then they used that.
I'm sorry?
Yeah, exactly.
Yeah, exactly.
I mean, it was like, you know, everyone who studied that case thought that he was not only entrapped and given in the thing, but it was like, you know, a kid saying, I'm going to kill that person.
Right.
Or you and I say, I'm going to kill that guy.
Right.
So there was never any evidence that he had a plot.
In other words, the kind of thing that the Secret Service investigates and then dismisses on a daily basis in this country.
Right.
Right.
That level of thing.
Some drunk at a bar.
There was no evidence that there was a plot.
There was no evidence that there was a plot or any way to carry it out.
Well, that's been true with many and with many of the prosecutions, too.
It was true.
Do you remember the Lackawanna Six?
Wait, wait, wait, wait.
Hold it.
Let's stay on Abu Ali for a minute, because if I remember right, this is the case where the judge in Virginia said that his tortured confession by the Saudis was admissible.
But the fact that he was tortured by the Saudis into the confession was not.
And so the jury got to hear this confession portrayed as though it was, well, you know, no worse than the torture that the average Virginia police might inflict on somebody.
Well, not only that, the judge said the judge in open court said he doubted whether he had been tortured.
He thought he had probably tortured himself, beat himself in the back to try to create scars.
So the judge was really egregious, Judge Lee.
But Judge Lee only gave him 10 years.
OK.
Oh, 30.
I don't remember.
But whatever he did, it wasn't life.
And it came back.
And now he has life.
So it came back.
It came back.
You mean, let's be specific here.
That means the state appealed it.
And then the higher court panel said, yeah, you're right.
That's not nearly enough.
Lower court judge.
Give him more time.
Give him now.
Right.
Is that is that new or even relatively new?
Or is that the way it's always been?
It's the way it's always been.
If they want to do it.
I mean, I don't think they do it too often.
I mean, appealing the shortness of a sentence.
I think that they I think they do it in select cases where they want to make a point.
They do it in terrorism cases.
I mean, it's not something that's done routinely because they don't have a political reason to do it or, you know, a personal vendetta to do it.
And, you know, we we always thought that.
And, you know, by the way, the players did not change much in these courts.
Do you realize that Obama has not has not changed many of the U.S. attorneys?
You know, a large number of the U.S. attorneys are Bush's attorney, U.S. attorneys, the people that are, you know, forming out the cases and deciding what to prosecute.
So that's another.
I know.
You know, I was even thinking there must have been a scene where Eric Holder gave a speech inside the Department of Justice saying, look, all the changes are cosmetic.
Only everything continue as you were.
Right.
I mean, that must have gone down from the new attorney general.
Well, I think it probably was such a thing.
And but also there have been almost no changes of the attorney at the U.S. attorney level.
I mean, you know, as in many other things, Obama didn't make any didn't make any changes in personnel.
And, you know, that's where the I mean, Bush, Ashcroft or Holder, they might make a decision or two.
But a lot of this stuff comes from the local.
What does that U.S. attorney want to do at that local level?
And, you know, in Alexandria, they always want to throw the book at you.
And Lin Stewart, they want to throw that.
That was an Ashcroft-driven thing, Lin Stewart.
If you recall, when Ashcroft and Mueller made that announcement about her arrest.
All right.
Well, Elaine, I'm sorry.
I got to cut you off here because the bumper music's playing and we got to go.
But I got to tell you, it's great to talk to you again.
And I appreciate it.
And I hope we can do it again soon.
Anytime.
Thank you.
Everybody, that's Elaine Castle.
The book is The War on Civil Liberties.
I'm Bush and Ashcroft.
