Recently there has been a sharp uptick in traffic to an October 2015 post I wrote on the crime-fraud exception to attorney-client privilege (reproduced below). This post was part of a four-part series on attorney client-privilege issues in domestic and international(ized) courts. I can only assume that the renewed interest in this subject is fueled by last week’s FBI execution of a search warrant on the office, home and hotel room of Michael Cohen, lawyer (some say “fixer”) for President Donald Trump. As I write, the issue is playing out in a United States District Court in New York, where Cohen, supported by Mr. Trump’s lawyers, is seeking an injunction to prevent the prosecutor from examining seized materials, based on attorney-client privilege.
Before this litigation is over we are likely to see a very high-profile addition to the canon of law on the crime-fraud exception to attorney-client privilege.
Attorney-Client Privilege — Part IV: The Crime-Fraud Exception
This post follows up on the discussion of the attorney-client privilege and the crime-fraud exception raised in Prosecutor v. Bemba et al. (“Bemba”) before the International Criminal Court (“ICC”). In my previous post, I presented an overview of the attorney-client privilege (otherwise known as “lawyer-client privilege” or “legal professional privilege”) in the international criminal tribunals. As previously discussed, one of the exceptions to the attorney-client privilege is the crime-fraud exception. This exception applies when communications are made in furtherance of a crime or fraud. In other words, the attorney-client privilege is not a shield to be used by either the attorney or the client to pursue or cover up criminal activity, including acts contributing to the obstruction or perversion of justice. The ICC Pre-Trial and Trial Chamber decisions in Bemba raise several questions concerning the scope of this exception. Before I get into those questions, let’s briefly review the history of the case. Continue reading “Attorney-Client Privilege — The Crime-Fraud Exception”
I was recently contacted by Gloria Lujanović, a journalist in Bosnia and Herzegovina working for Dnevnik.ba and asked whether I would be willing to answer some questions about the Prlić et al. case now that six months have passed since the appeals judgment was rendered. Presumably she was interested in whether my views have evolved. Might my perspective (seehere,here and here) be different now that I have had some distance from that fateful day when General Slobodan Praljak defiantly (I would say honorably) took his life, rather than accept what he (and others, such as myself) believed were the unjust results of a terribly flawed trial that yielded an error-riddled judgment – a judgment which, regrettably, the Appeals Chamber failed to cure? On 30 March 2018, Ms. Lujanović posted the Q&A in Dnevnik.ba: Karnavas: Alija Izetbegović je trebao na optuženičku klupu, suđenje hercegbosanskoj šestorci farsa, nalik cirkusu / Karnavas: Alija Izetbegović should have been prosecuted, the trial against the six from Herceg-Bosnia was a farce, and resembled a circus.
The Court and this trial were different. It was a Court for nearly all places and all times promising something most everyone in the world wanted badly, even if some state authorities remained wary. It was to bring tyrants to account, punish them according to their crimes, and give pause to others with tyrannical pretentions.
It was not just what kind of justice would be rendered for Lubanga. The Court itself was on trial.… Lubanga’s atrocities spoke for themselves, or so it appeared. They were well known in his country. They were well known abroad among the international organizations that had been forced to intervene to protect his victims, and they were well known among human rights organizations whose reporting brought his crimes to word attention. Something would have to go woefully askew for the trial to end up questioning the severity of the crimes. And yet, as the trial unfolded, the crimes became strangely and increasingly beside the point, buried under a spectacle of legal combat between counsellors who seemed more concerned with prevailing in the courtroom than worrying about what atrocities had been committed in Ituri and how to assign responsibility.
A Conviction In Question: The First Trial at the International Criminal Court, by Jim Freedman, University of Toronto Press, 2017, $32.95, 219 pages, pp. xiii, xvi-xvii
[T]he man who prompted the deed was more guilty that the doer, since it would not have been done if he had not planned it.
Aristotle Rhetoric (2004:26)
By and large, there is not a great deal of social science research to support the claim that hate speech or inciting speech has a directly causal relationship to violence, and this mitigates against modes of liability like instigating/inducing/soliciting which include the elements of direct causation. There is, however, extensive empirical evidence indicating that denigrating speech has (often unconscious) conditioning effects on listeners and while not attaining the level of a sine qua non, may contribute to a set of conditions jointly sufficient to cause crime.
Incitement on Trial: prosecuting international speech crimes, by Richard Ashby Wilson, Cambridge University Press, 2017, Paperback $29.99, 356 pages, p. 17.
Professor Richard Ashby Wilson’s Incitement on Trial: prosecuting international speech crimes is an outstanding text on a frequently misinterpreted, if not ill-used, area of international criminal law – the crime of incitement. What distinguishes Incitement on Trial from many other texts on substantive international criminal law is that it is based in part on extensive original empirical research.
I’ll tell you, it was a sleepless night. The — I laid out kind of what I thought my options were yesterday. I thought about them again last night. I thought about them overnight. I wrote and rewrote what I was going to do. I went to the gym. I thought maybe the treadmill would either calm me down — which it has, of course. Give me more — more reflection. It did. And I went back and looked again, and looked again. (p.12367)
Probably rose-colored glasses. Thought about that last night, too. I took a moment to clean them; they’re not as rose-colored today. And it’s been pretty shaken, and it might be time for me to retire, frankly. That decision I’ll be making over the next week or two I think it might be here, because I’ve never seen anything like it. I’ll just ponder it as we go forward. (p.12374)
Judge Vance Spath in United States of America v. Abd Al Rahim Hussayn Muhammad al Nashiri, R.M.C. 803 session, 16 February 2018.
Air Force Colonel Vance Spath, the presiding judge in United States of America v. Abd Al Rahim Hussayn Muhammad al Nashiri, the Guantanamo USS Cole war crimes trial, has had his faith in the law and what lawyers do shaken so profoundly that he is contemplating resigning from active military duty. Epiphany, moment of clarity, or chicanery disguised as faint claims of a tortured judicial soul?
Uganda President Yoweri Museveni has turned hypocrisy into an art form. One moment he is railing against the International Criminal Court (ICC) for having the temerity to investigate, charge, and try individuals from the African continent alleged to have committed crimes falling under the ICC’s jurisdiction, and the next he is asking the ICC Prosecutor to charge anyone he deems out of favor, such as the recently sacked Uganda Inspector General of Police, General Kale Kayihura.
Leaving the client without a lawyer to protect his rights could even be worse. I don’t know if I’ve done the right thing, but I don’t think I really had a choice.
US Navy Lieutenant Alaric Piette
In an earlier post I nominated Marine Brigadier General John Baker, Chief Defense Counsel of the Military Commissions Defense Organization at Guantanamo Bay, for the 2017 Defense Lawyer Profile of Courage. Brig. Gen. Baker risked his military career, his future, his retirement benefits and much more by doing the right thing when lesser defense counsel in his place would have caved in or have deluded themselves into believing that going along to get along was ethically the right thing to do.
Brig. Gen. Baker gave no quarter: he discharged three civilian members of Abd al-Rahim al-Nashiri’s defense team (Richard Kammen, Rosa Eliades and Mary Spears), who were no longer able to ethically represent their client because communications with their client were secretly being monitored by the US government. This left al-Nashiri with just a single military lawyer, former US Navy SEAL, Lieutenant Alaric Piette. By his own admissions Lt. Piette is not learned – qualified by specialized training and experience to defend Guantanamo accused in cases where the US government is seeking the death penalty. Continue reading “ETHICALLY CONSTRAINED DEFENSE COUNSEL MUST WITHDRAW”