No Defense By ANDREW P. NAPOLITANO

THE conviction of Lynne F. Stewart for providing material aid to terrorism and for lying to the government is another perverse victory in the Justice Department’s assault on the Constitution. …

Just after 9/11, Attorney General John Ashcroft gave himself the power to bypass the lawyer-client privilege, which every court in the United States has upheld, and eavesdrop on conversations between prisoners and their lawyers if he had reason to believe they were being used to “further facilitate acts of violence or terrorism.” The regulation became effective immediately.

In the good old days, only Congress could write federal criminal laws. After 9/11, however, the attorney general was allowed to do so. Where in the Constitution does it allow that?

Mr. Ashcroft’s rules, with their criminal penalties, violate the Sixth Amendment, which grants all persons the right to consult with a lawyer in confidence. Ms. Stewart can’t effectively represent her clients – no lawyer can – if the government listens to and records privileged conversations between lawyers and their clients. The threat of a government prosecution would loom over their meetings.

These rules also violate the First Amendment’s right to free speech. Especially in a controversial case, a defense lawyer is right to advocate for her client in the press, just as the government uses the press to put forward its case. Unless there is a court order that bars both sides from speaking to reporters, it should be up to the lawyer to decide whether to help her client through the news media. …

In truth, the federal government prosecuted Lynne Stewart because it wants to intimidate defense lawyers into either refusing to represent accused terrorists or into providing less than zealous representation. After she was convicted, Ms. Stewart said, “You can’t lock up the lawyers, you can’t tell the lawyers how to do their jobs.”

No doubt the outcome of this case will have a chilling effect on lawyers who might represent unpopular clients. Since 9/11 the federal government’s message has been clear: if you defend someone we say is a terrorist, we may declare you to be one of them, and you will lose everything.

The Stewart conviction is a travesty. She faces up to 30 years in prison for speaking gibberish to her client and the truth to the press. It is devastating for lawyers and for any American who may ever need a lawyer. Shouldn’t the Justice Department be defending our constitutional freedoms rather than assaulting them?
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Andrew P. Napolitano is a former judge of the Superior Court of New Jersey

Economist.com | Social attitudes
Not quite right
From The Economist print edition

Americans seem to believe that they and their politics have got more conservative; but perhaps they haven’t.

HAS American politics moved to the right? [There is] a new survey of 2,116 Americans by YouGov, a British-based internet pollster. They seem to reveal a somewhat schizophrenic tension in the body politic. Many Americans think that they and their politicians have become more conservative; yet, when it comes to some fundamental questions, they have actually shifted to the left.

In terms of self-analysis, the direction is fairly clear. A plurality of Americans (41%) think they have not changed much; but, out of those who have changed, 30% have moved to the right, and only 19% to the left. The main swing rightwards has been among males, the old and, perhaps inevitably, Republicans. …

By a huge 42-19% margin, Americans think they are more liberal than their parents. …

For some conservatives, these numbers may cause a fear which coincidentally provides their movement with much of its impetus: that, though they are winning elections, they are losing at least some of the culture wars.

[link above has charts of survey results]

Taking the Stand: Pack the Supreme Court By Bruce Fein

President Bush would betray his popular mandate of last November if he neglects to nominate strong philosophical conservatives to the Supreme Court….

The Founding Fathers would not frown on President Bush’s philosophical packing of the Supreme Court in hopes of advancing a policy agenda. …

President Bush would mock the people’s verdict on Supreme Court justices in last November’s balloting if he neglects to appoint justices in the mold of Scalia, Thomas, and Bork. Bush unequivocally promised the same in his presidential campaign. In contrast, his defeated opponent, Senator John Kerry, pledged to appoint justices precommitted to celebrating the outlandish invention of a constitutional right to an abortion in Roe; and a homonymic interpretation of the Constitution epitomized by the same-sex marriage ruling of the Massachusetts Supreme Judicial Court in 2003….

The American people thus confronted a stark choice, not an echo, regarding Supreme Court justices in decisively preferring Bush to Kerry. And Bush’s popular mandate to appoint Scalia–Thomas–Bork duplicates was reinforced by parallel voting for the U.S. Senate and 11 state referenda embracing the traditional understanding of marriage. …

President Bush would thus be guilty of bait-and-switch trickery if he reneged on his campaign promise to appoint philosophically conservative Supreme Court justices. …

President Bush’s detractors maintain that “moderates” in the mold of Associate Justices Sandra Day O’Connor, Anthony Kennedy, and Stephen Breyer can be trusted to eschew airbrush artistry or homonymic interpretations of the Constitution. But the detractors are wrong. …

[T]he so-called moderates acclaimed by Bush’s critics are in reality engines of new constitutional rights and powers operating with 10 as opposed to the 20 cylinders employed by Associate Justices John Paul Stevens, David Souter, and Ruth Bader Ginsburg. They do not subscribe to the Constitution and its 27 amendments in accord with the original meaning and purpose of the authors.

59 Million voted against Bush. Another 79 million did not vote at all. Bush has NO mandate. mjh

The Writer’s Almanac

“America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves.” — Abraham Lincoln, Republican President