Civil Liberties on Trial
— Dianne Feeley
LYNNE F. STEWART, 65, a lawyer noted for representing political defendants, was convicted on February 10th of five charges: two counts of conspiracy, a count of providing and concealing material support to terrorist activity and two counts of making false statements. Convicted of felony charges, Stewart was immediately disbarred. She is out on bail until her July sentencing date; her lawyers will file an appeal in early March.
This conviction is a major threat to the Sixth Amendment right to relation representation in politically charged trials, as well as to the First Amendment's right to free speech. This is particularly important in controversial cases when there are no court orders to bar both sides from speaking to the press.
In April 2002, the indictment against Stewart was proclaimed by no less than Attorney General John Ashcroft—who flew to New York to announce the indictment on "The David Letterman Show." The charges were brought two years after Stewart's alleged crime.
Following the verdict, Ashcroft's successor Alberto Gonzales issued a statement that the convictions "send a clear, unmistakable message that this department will pursue both those who carry out acts of terrorism and those who assist them with their murderous goals." This is clearly a major victory for the Bush administration.
The charges arose out of Stewart's defense of Sheik Omar Abdel Rahman, the blind spiritual leader of the Islamic Group, who was convicted in 1995 of seditious conspiracy to attack New York landmarks, including the 1993 World Trade Center bombing. He is serving a life sentence in federal prison.
In order to have access to her client, Stewart was required to sign an affidavit that she would abide by special administrative measures (which lawyers call SAMs) imposed on her client, barring him from communicating with anyone outside prison but his lawyers and wife.
Proof of her crime was a May 2000 press statement where she announced that Rahman withdrew his support for the Islamic Group's peace initiative. Two days later she issued a clarification that this meant her client, who obviously was not on the scene, was asking his people to discuss it, but it was his personal opinion that the ceasefire was not be working and there should be escalation "in the media."
In her defense Stewart said that she believed she was permitted to release the statement on behalf of her client; it was not a call for violence and therefore did not violate her oath. In fact, no violence occurred.
At her trial she also explained that the press release was part of a legal strategy to keep her client in the public eye. She was attempting to have Rahman—a non- English speaker in solitary confinement and a diabetic—transferred to a prison in his own country. She, along with co-counsel Ramsay Clark and Abdeen Jabara, feared the government's attempts to isolate him would result in his case languishing.
After Stewart issued the press statement, Pat Fitzgerald, who had been the prosecutor in the case and the person who had instituted the SAMs against Rahman, called to tell her she had been cut off from her client. Her lawyer spent the next year renegotiating the conditions under which she could visit her client once again. She was therefore unable to communicate with Rahman from May 2000 until July 2001.
Circumstances Surrounding the Verdict
Following the February 10th verdict Stewart, who was clearly shaken, told supporters and reporters outside the courthouse: "I know I committed no crime. I know what I did was right. I'd like to think I'd do it again. It's the way a lawyer is supposed to behave."
The day before the verdict I spent an afternoon in the federal courthouse, in the same courtroom where the Rosenbergs had been tried half a century earlier. The jury had been deliberating more than two weeks, so the question was whether they would be able to come to a verdict or whether it would be hung jury.
Clearly the jury was treated as if there were some imminent threat to their safety. They were transported to and from the courthouse in a highly protected van and served anonymously.
That same morning, as Lynne and her husband Ralph Poynter left their home in Brooklyn, they had found a "wanted" poster pasted on their door. Put out by the Jewish Defense League (JDL), it was being distributed in their neighborhood and in the area around the federal courthouse. JDL spokespeople explained they were escalating their campaign to expose Stewart and, by convincing neighbors to shun her, drive her from the neighborhood.
Co-Defendants in the Trial
Stewart had two co-defendants. First, Mohamed Yousry served as the Arabic translator in meetings and phone calls with her client. He actually tried to be excused from his translating responsibilities, but the government insisted he continue.
Since his indictment he was fired from his teaching job at CUNY, and the Professional Staff Union has challenged that ruling. He, like Stewart, is out on bail pending being sentenced, in his case on two counts of conspiracy and one count of providing and concealing material support for terrorist activity.
The third defendant, Ahmed Abdel Sattar, had been a paralegal in the Rahman trial. Born in Egypt, Sattar was the "loose cannon" tied to Stewart and Yousry. He was convicted of two charges of conspiracy, including one to kill and kidnap persons in a foreign country, and a third charge of solicitation of crimes of violence. These were the most serious charges and involve a life sentence plus 25 years imprisonment. He has been in prison throughout the trial.
Without the knowledge of either Stewart or Yousry, Sattar was in contact with a number of Islam Group members, and held conversations with unindicted co-conspirator Rafi Taha regarding the bombing of the USS Cole.
In October 2000 Sattar issued a fatwa in the name of Sheik Rahman, to "fight the Jews and kill them wherever they are." Stewart found out about the fatwa from the media.
Because Stewart and Yousry were unable to sever their trial from Sattar, the jury had no way to differentiate the cases. Sattar was not working under the direction of Stewart, but operating with his own agenda, which seemed to be positioning himself to be a player in the militant Islamic movement.
The government wins over 90% of the criminal cases it brings. In this case the prosecutors presented 1,330 exhibits consisting of emails, phone calls and videotapes. Three-quarters of the evidence was against Sattar, but the court refused repeated severance motions. By amalgamating the cases of the three defendants and overwhelming the jurors with evidence, the government convinced the jury that there was a conspiracy afoot.
Prosecutors also introduced material that had nothing to do with the case, including playing a tape of Osama bin Laden expressing support for Rahman and introducing evidence that Al Qaeda operatives bombed the USS Cole. Although the prosecution offered such evidence as "background," it was clearly an attempt to connect Osama bin Laden to Stewart.
The prosecution also used very moving testimony from a German citizen who saw the 1997 massacre of tourists in Egypt. What was the relevance of the testimony to the case? It too was offered as "background"—not connecting it in any way to the defendants.
It is clear that these criminal charges would never have been brought before 9/11. Rather, Stewart's decision to put out a press release about Sheik Omar Abdel Rahman's views might have resulted in her facing a disciplinary hearing before the bar. But as long as she had a good faith belief in her actions there should be no criminal liability.
Two years later—under a new administration—the government elevated Stewart's alleged administrative violation to the crime of "fraud," charging that she accepted the SAM with the intent to break it. In connection with the actions of Sattar, she was also charged with "conspiracy" to kidnap and kill unnamed persons in an unnamed country.
The lesson from the Stewart case, from the government's point of view, is that lawyers and translators who take political cases can—and will—be prosecuted for their vigorous defense. This will obviously have a chilling effect on civil liberties: SAMs are now imposed on prisoners at Guantanamo, so that their lawyers cannot reveal their clients' accounts of torture.
Additionally, TV cameras were secretly mounted on the ceiling of the cell where Stewart met with Sheik Rahman—another practice that can now be conducted simply on orders of the Attorney General.
The U.S. citizen Abu Ali, who was tortured in Saudi Arabia and is now in U.S. custody, cannot see his own parents—because they refuse to sign the gag order that would block them from revealing his story.
Andrew P. Napolitano, analyst for Fox News and the author of Constitutional Chaos: What Happens When the Government Breaks Its Own Laws? commented in an op-ed article in the February 17th New York Times that:
...if the federal government had followed the law, Ms. Stewart would never have been required to agree to these rules to begin with. 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 easedrop 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?
Civil libertarians and progressives need to support the Stewart appeal and explain its meaning to others. The National Lawyers Guild is organizing meetings and raising money for the appeal process. For information, contact the Lynne Stewart Defense Committee (www.lynnestewart.org) at 212-625-9696.
Dianne Feeley is an editor of ATC. She would like to thank Michael Smith and Eric Poulos for their suggestions.
ATC 115, March-April 2005