The Ordeal of Stanley L. Cohen: Justice as Farce
The use of the courts to erode our civil liberties, as well as expand the ability of the state and corporations to commit fraud and other crimes with impunity, has been accompanied by a campaign to silence the handful of activist attorneys who defend those demonized by the government. The state has imprisoned the great civil rights attorneys J. Tony Serra, who has served two terms behind bars, and Lynne Stewart. And it looks as if Stanley L. Cohen is now on the list. When lawyers who defend the unpopular must suffer severe punishment at the hand of the government, the judiciary is a farce.
Cohen has furiously battled back against the excesses of state power for 25 years. He has worked as an attorney for the leaders of Hamas, including Mousa Abu Marzook, whom Cohen prevented from being extradited to Israel after he was detained at Kennedy Airport in New York. Cohen represented the Kuwaiti-born cleric Sulaiman Abu Ghaith, who was the son-in-law of Osama bin Laden and a spokesman for al-Qaida. Abu Ghaith, who requested that Cohen handle his case after he was extradited from Jordan to the United States, was sentenced in September to life in prison. Cohen has represented hackers, Occupy activists, the homeless, anti-war protesters, Muslim clerics, American Indian activists, Weather Underground members including Kathy Boudin, members of the Black Liberation Army and some of those who were charged in the 9/11 attacks. He brought a federal suit in Washington, D.C., to bar Israel from receiving U.S. aid, charging that the Israeli government carried out a “program of killing, torture, terror and outright theft” against the Palestinians. He defended the PayPal 14 in Northern California, a Muslim radio station in South Africa and the accused in a “terrorist” case in Romania and has an ongoing case against Egypt in the African Union for its closure of the Rafah border crossing into Gaza. He often worked on cases with Lynne Stewart, who was convicted of supporting terrorists by passing to the press some messages from her client, the blind sheik Omar Abdul Rahman, was disbarred as a result and was sentenced to 10 years in federal prison before being released in 2013 because she has cancer. Cohen was a protégé of the attorney William Kunstler, with whom he defended Mohawk Indians who mounted an armed uprising in 1990 on a reservation in Quebec. Cohen had to reach his clients, who were surrounded by Canadian army troops, in a canoe. He was indicted by the Canadian government for his work on behalf of the Mohawks during the uprising and charged with “seditious conspiracy,” although he was later cleared. The FBI has carried out raids on his home and his law office, confiscating his electronic equipment. And he is banned in Israel and Egypt because of his defense work.
Two U.S. federal district courts have indicted Cohen on tax-related charges, claiming, in essence, that he did not file tax reports for some of his income as an attorney. Cohen, whom I reached by phone in his law office in New York, said the charges were “politically motivated” and that he was “tired of wasting so much time, energy and resources in a personal defense with no realistic end in sight.” He accepted a plea agreement with the government April 14. He will be sentenced in November by Norman A. Mordue, a senior judge of the Northern District of New York. Cohen expects to receive a prison term of 18 months.
Cohen said in the telephone interview that the government campaign over the past few years had been designed to “wear me down and silence me, although it won’t.” “The harassment began over 10 years ago,” he said, “when the Department of Justice began an investigation to attempt to charge me with material support for terrorism because of my work as an attorney for a variety of groups, especially Hamas, which is a Palestinian national liberation movement that I am proud to be associated with and defend. During my work with Hamas in the late 1990s I began to hear reports from Palestinian activists in Virginia and Chicago that the FBI was questioning them about me. The FBI, knowing that I spent a lot of time overseas in places like Beirut and the occupied territories, asked activists what my role was with Hamas. They wanted to know if I ever conveyed information or money either to or from Hamas. They were fishing for anything they could use against me.”
Assistant U.S. Attorney Gordon Kromberg, who has carried out witch hunts against numerous Muslim activists including Dr. Sami Al Arian, has joked about a suspect undergoing torture, has improperly confronted another suspect in public and has denounced “the Islamization of the American justice system,” according to sworn affidavits by defense attorneys. There is said to be a picture hanging in Kromberg’s office showing Cohen with two of his clients who were later assassinated. Reportedly, each client has an X marked on his face and Cohen’s face is marked with a circle.
Cohen believes those targeted by the United States and Israel have a right to defend themselves. And he finds in their acts of resistance an undeniable heroism.
“The biggest tripwire in the Middle East is the inability of the West to communicate with, understand and deal realistically with liberation movements, and especially Palestinian liberation movements,” he said. “There will be no peace in the Middle East until there is justice for the Palestinian people. I have been associated with Hamas for 20 years. I have spoken at their seminars and attended their gatherings. I know the Hamas leadership. Hamas is a dynamic national liberation movement. It is not hierarchical. It has a singular commitment to a homeland for the Palestinians. It has made tremendous advances on behalf of the 11 million stateless Palestinians. Any people under occupation have a right to resist. In fact, they have an obligation to resist. And resistance is a dirty and painful business. I have always been proud of my relationship with Hamas.”The courts, he said, have become less and less hospitable to contrarian defense attorneys. And a series of laws, many passed since 9/11, has made it nearly impossible for those under terrorism charges to mount adequate defenses. Special administrative measures, known as SAMs, are used to prevent or severely restrict defendants from communicating with other prisoners and attorneys, relatives, the media and others outside jail. Defendants, even before trial, are often held in solitary confinement in which they must endure around-the-clock electronic monitoring and lockdowns lasting 23 hours a day. They shower and go to the toilet in front of cameras. The extreme sensory deprivation used to break defendants before they enter a courtroom is a form of torture. Statements, beliefs and associations once protected under the Constitution are now considered criminal. Those branded by the state as dissidents, even those who break no laws, can be stripped of their rights and imprisoned without due process. They can be detained and prosecuted not for what they have done, or even for what they might be planning to do, but for holding religious or political beliefs that the state deems seditious. The first targeted have been racial Muslims such as those Cohen has defended, but they will not be the last. Now that the state has codified this judicial lynching, the legal equivalent of pre-emptive war, it will be used on the rest of us, as many activists in the environmental, anti-globalization, anti-nuclear, sustainable agriculture and anarchist movements are discovering.
“You need friction to make justice work,” Cohen said, “but the state is determined to remove any friction. They do not want anyone to confront them, much less expose what they are doing. We have lost judge after judge that was willing to hear counterarguments. These judges have been replaced with former Wall Street lawyers, political hacks, those who are owed political favors or those who benefit from political patronage. These [newer] judges played the game. They sold their souls years ago. And justice is not really their concern. You go up against them and you hear the echo chamber of the state.”
The corruption of the law to advance the interests of a corporate elite requires harsher and harsher measures to check a restive population. This misuse of the courts characterizes despotic rule. Radicals have long understood that the function of the courts in a closed society is to thwart justice. And to counter this judicial despotism we must not only be alienated from power but antagonistic to power. Cohen has exemplified this antagonism.
“The supreme law of the State is self-preservation at any cost,” wrote the anarchist Mikhail Bakunin. “And since all States, ever since they came to exist upon the earth, have been condemned to perpetual struggle—a struggle against their own populations, whom they oppress and ruin, a struggle against all foreign States, every one of which can be strong only if the others are weak—and since the States cannot hold their own in this struggle unless they constantly keep on augmenting their power against their own subjects as well as against the neighborhood States—it follows that the supreme law of the State is the augmentation of its power to the detriment of internal liberty and external justice.”
Cohen, who was raised in a Jewish orthodox household but who is avowedly secular, nevertheless finds meaning in his religious roots. He said he is “proud to be a Jew, but not a Jew who believes in the Judaism espoused by the generals of the Israel Defense Forces.” Judaism, authentic Judaism, means for him “standing with the oppressed, the disadvantaged and the disaffected.” And as the Hebrew prophets understood, this kind of Judaism comes with a price.