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Going After the Lawyers

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In her Sunday column yesterday, St. Petersburg Times columnist Robyn Blumner tells an ominous story that describes the Bush administration’s attitude toward criminal-defense attorneys, an attitude that is remarkably similar to that held by Bush war-on-terrorism partner Pervez Musharraf, the brutal military dictator of Pakistan.

Roy Black is one of the most prominent and successful criminal-defense attorneys in the nation. He was the lawyer who represented William Kennedy Smith on charges of rape many years ago, winning an acquittal. He also represented Rush Limbaugh on charges relating to alleged misuse of OxyContin. He serves as a professor at the University of Miami School of Law.

As part of the never-ending enactment of new interventions to finally “win” the drug war (after 30 years of interventions and failure and no end in sight), the feds have made it a criminal offense for a lawyer to accept money in payment of a fee if the money was obtained through drug sales. The idea, of course, is that if they can prevent drug dealers from hiring attorneys, they can more easily gain convictions (as if that would finally “end” the drug war).

This obviously places every criminal-defense attorney in a very precarious position. As soon as he accepts a fee from an alleged drug dealer, he places himself at risk of a federal criminal indictment.

Black was hired to represent Colombian drug kingpin Fabio Ochoa Vasquez on drug-war related charges for an agreed-upon fee of $5.2 million. Not surprisingly, Black conducted himself with an overabundance of precaution, knowing that there is nothing the feds would love to do more than to go after a criminal-defense attorney as successful as he. So, prior to accepting the fee, Black hired another prominent criminal-defense attorney in Florida, Ben Kuehne, to conduct an independent investigation into the source of the money.

As part of his investigation, for which Black paid him $200,000, Kuehne traveled to Colombia, where his investigation concluded that the funds had originated in legitimate sales of cattle, horse, and real estate sales. He determined that ownership of the Ochoa family ranch predated Ochoa’s drug activity.

Today, Kuehn is under federal indictment charged with laundering drug money. The accusation is that Kuehn knew that his opinion as to the source of the money was false. Apparently the feds are relying on the testimony of a Colombian accountant and a Colombian lawyer to make their case against Kuehne.

According to Blumner as well as members of the Florida bar, Kuehne ranks among the best attorneys in Florida. John Nields, a partner in a Washington, D.C., firm that is representing Kuehn, said, “They have indicted one of the finest attorneys in Miami.”

According to an article on law.com, “Other lawyers angrily denounced the charges. ‘It’s now official: It’s a crime to be a criminal defense attorney,’ Miami criminal defense attorney Milton Hirsch said…. ‘They picked a guy who sleeps with wing-tipped shoes on and indicted him for going above and beyond to make sure legal fees paid to a different lawyer are clean.”

Another Florida lawyer, Jon May, distributed a statement that said, “To target an adversary like Ben Kuehne, who is held in such high regard by the community and whose integrity is unquestioned, sends a message that any lawyer is at risk.”

By the way, among Kuehne’s clients was Al Gore, who he represented in the famous Florida vote recount controversy in the 2000 presidential election.

At his arraignment, the magistrate’s courtroom was too small to hold the overflowing crowd in support of Ben Kuehne.

No one should operate under any pretentions that the Kuehne indictment is about “winning” the war on drugs. The war on drugs can never — and will never — be “won.” Instead this 30-year-long war, including all of its various and sundry rules, regulations, and interventions, is about power — federal power— power that is designed to provide federal officials with the ability to indict, prosecute, incarcerate, and ruin anyone they want. It’s no different in principle from the power to steamroller and destroy that exists in the war on terrorism, the war on immigrants, the war on guns, and all the other wars in which the U.S. government is involved.

As most everyone knows, in Pakistan military strongman Pervez Musharraf has done to Pakistani criminal-defense attorneys what Bush’s Justice Department has done to Ben Kuehne. Musharraf’s goons have arrested attorneys, charged them, incarcerated them, and ruined them. Nonetheless, the Pakistani bar has risen up against Musharraf and taken one of the most heroic stands against tyranny and abuse of power in history.

Unfortunately, ever since 9/11 most private attorneys in the United States have taken a different position than their Pakistani counterparts. With sheep-like silence, they have either acquiesced or supported the Bush administration’s “war on terrorism,” including the Patriot Act, the Military Commissions Act, the NSA spying, the kangaroo military tribunals, the CIA kidnappings and renditions, torture, the CIA’s secret overseas prison camps, and the Guantanamo Bay prison camp.

It is encouraging that some American attorneys are now rising up and conducting themselves like the Pakistani bar, even if it’s only part of the war-on-drugs indictment of attorney Ben Kuehne.

This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.