A "Chilling Effect" for Legal Community
by Bill Weinberg
Newly appointed US Attorney General Alberto Gonzales hailed the Feb. 10 conviction of activist attorney Lynne Stewart and her co-defendants, saying the verdicts “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.” The New York Times coverage of the Justice Department victory called it “one of the country’s most important terror cases since the Sept. 11 attacks.” But supporters of Lynne Stewart say the case had more to do with a dangerous erosion of attorney-client privilege than with terrorism.
After 12 days of deliberations, Stewart was convicted on all five charges she faced–including “providing material support” to terrorism, conspiracy to abet terrorism, and lying to the government about her actions. She faces up to 30 years in prison. At 65, this means she will almost certainly die in prison.
This was actually the second set of indictments brought against Stewart. The first indictments, brought in April 2002 when federal agents raided her downtown Manhattan office, were dismissed by US Judge John Koetl in July 2003 as unconstitutionally vague. But that November, the Justice Department filed fresh charges that Stewart and her co-defendants–postal worker Ahmed Sattar and translator Mohammed Yousry–had conspired to provide material support to Egypt’s Gama’a Islamiyya, or Islamic Group, which is designated a terrorist organization by the State Department. Judge Koetl let these charges stand, and the case wound up in his Manhattan courtroom.
Stewart was initially charged with passing messages between her client, Sheikh Abdel Rahman, and Egyptian supporters from his Minnesota prison cell, where he is serving a life term on charges of conspiring to blow up several New York landmarks. Abdel Rahman–the notorious “Blind Sheikh”–was said to be the mastermind of the 1993 World Trade Center attack (although he was never convicted of that), and was barred from communicating with the outside world by Special Administrative Measures, or SAMs, which Stewart had to sign on to in order to continue representing him.
The new indictments charged that Stewart helped disguise prison conversations in which Rahman passed messages to his translator and assistant. The indictment said Stewart “pretended to be participating in the conversation with Abdel Rahman by making extraneous comments such as ‘chocolate’ and ‘heart attack.'”
Stewart guessed that the conversations were being monitored, and the charges against her bore that out. Stewart and her defense team argued that this electronic eavesdropping, and the strictures placed on facilitating Sheikh Rahman’s communications, violated the spirit of the Sixth Amendment, which guarantees the right to legal counsel. In a Feb. 17 interview with Jose Santiago of WBAI Radio news, Stewart said the wiretapping at the prison was an unconstitutional “incursion into the attorney-client right to confidentiality by the government.”
The prosecution argued that her own words indicated she knew she was breaking the law. At one point she said, “Well, I don’t think I can hide this from Pat Fitzgerald,” the federal prosecutor who headed the 1995 case against Sheikh Rahman (today US attorney for Chicago).
Stewart was not accused of any direct links to acts of violence, nor of speaking with Islamic Group leaders in Egypt–only to the press. She acknowledged that in June 2000 she called a Reuters reporter in Cairo to read him a press release from the Sheikh. Although the press release apparently broached the Islamic Group breaking its ceasefire with the Egyptian government, there were no subsequent attacks. Stewart maintained that speaking to the press on behalf of her client was a legitimate and indispensable part of her legal representation. “I did what a good and vigorous lawyer does,” she would tell WBAI.
The prosecution worked hard to create the image of a major terrorist case. Sattar, facing a life sentence on terrorist conspiracy charges, admitted that he urged Egyptian exile Rifai Taha in a phone call to Afghanistan to write an edict which was released to the Internet under the Sheikh’s name, calling for “killing the Jews where ever they are found.” But he insisted his intention was to keep the Sheikh’s name pubic, not to advocate breaking the ceasefire. He also admitted to corresponding with and sending money to Ramzi Yousef, indicted ringleader of the 1993 World Trade Center attack. A front-page New York Times story last Oct. 2 said the tap on Sattar’s Staten Island home phone provided investigators with a virtual map to terrorist networks all over the world. But co-defendant Yousry–also convicted on terrorist conspiracy charges–was himself a government collaborator, admitting he kept FBI agents updated on the Sheikh’s communications.
Assistant US Attorney Christopher Morvillo said in his in opening statement in June 2004 that Stewart was complicit in a virtual “jail break.” Invoking the Islamic Group’s deadly 1997 attack on tourists at Luxor and the 2000 kidnapping of tourists in the Philippines–both apparently carried out on behalf of Sheikh Rahman–Morvillo said: “His words and speeches were as dangerous as weapons.”
Not surprisingly, Stewart’s own political views became a key part of the case. This line of questioning resulted in a tense back-and-forth between assistant US attorney Andrew Dember and Stewart’s own lawyer Michael Tigar. Stewart–who had previously represented David Gilbert, an ex-Weather Underground militant convicted in a 1981 armored car robbery in Rockland County, and Richard Williams, convicted in a string of bombings at military sites and corporate offices in the early ’80s–said she sought to be a “very adversarial” lawyer. Describing her politics in classically Jeffersonian terms, she said, “I believe government is best when government is little,” and called herself a “revolutionary with a small r.” While explicitly disavowing attacks on civilians, she did decry the “voracious type of capitalism” now in the world and said “I believe entrenched institutions will not be changed except by violence.” Asked by Tigar Oct. 28 if she would have done the same for her client knowing the consequences, Stewart–a wife, mother and grandmother–tearfully said, “Sitting here today, it’s a very difficult question.”
Former US attorney general Ramsey Clark, who was co-counsel with Stewart in Sheikh Rahman’s 1995 trial, was called to testify on her behalf, saying he also used the same media contacts to keep their client’s name in the press as part of their defense strategy. “The lawyers had a duty in representing him and helping to protect all his rights to remind the world of his existence,” he said.
Judge Koetl reminded the jury repeatedly that the case–being heard in a courthouse just blocks away from Ground Zero–was not related to 9-11. But in September, the jury was shown a video of a 2000 al-Jazeera TV broadcast of Osama bin Laden, his deputy Ayman al-Zawahiri and other al-Qaeda figures speaking on behalf of Sheikh Rahman and other imprisoned militants. In the video, which al-Jazeera captioned “Bin Laden, Others Pledge Jihad to Release Prisoners in US, Saudi Jails,” a voice identified as that of the Sheikh’s son is heard off-camera exhorting “Avenge your leader! Let’s go spill blood!”
Stewart was cynical about the judge’s instructions to ignore 9-11 while allowing the video of bin Laden to be shown in court. “You can’t throw a skunk in the jury box and ask the jurors not smell it,” she told reporters.
Sattar’s lawyer Kenneth Paul accused the prosecution of scare tactics. “This is really a case about words and nothing more,” he told Newsday. “Nothing ever happened, ever! It is all talk.” He said the use of Osama’s face in the courtroom served to distract attention from the “oppressive” human rights situation in Egypt, which is the real context for the Islamic Group’s violence. Stewart would tell WBAI News that the video was aired “to intimidate this jury, to make them feel there was us and there was them… that by reason of doing the work I do, I had somehow become the enemy.”
New York’s media had a field day with the case. When the name of Yusuf Islam–the singer formerly known as Cat Stevens who was inexplicably put on an official “terrorist watch list”–came up in the recorded prison conversations as a prospective member for a defense committee for the Sheikh, Newsday seized on this as evidence of the singer’s “possible terrorist connections.” But the tape reveals Stewart and the Sheikh had only the vaguest idea who Islam was, referring to him as “one of the Beatles.”
The media also touted a dubious Stewart case link to the January slaying of an Egyptian Coptic Christian family in their New Jersey home, with New York’s ABC News airing sketchy claims that a relative of the family had helped prosecutors in translation work for the case.
The case also raised questions about reporters’ rights as well as attorney-client privilege. In June 2004, the prosecution agreed to drop a subpoena seeking the testimony of Newsday reporter Patricia Hurtado regarding her interview with Stewart pending a judge’s decision on whether or not her testimony could be legally compelled. The Justice Department also threatened to subpoena other journalists who had interviewed Stewart–including this reporter. Despite threats, no subpoena was brought after WW4 REPORT declined to cooperate.
The jurors in the case were anonymous and sequestered, escorted by federal marshals to and from the courtroom. On Jan. 25, the defense team asked Judge Koetl to declare a mistrial when the jurors’ van driver steered through a crowd of reporters and Stewart supporters outside the courthouse and exchanged angry words. The same driver had apparently made racist remarks. Jurors were disturbed by the incident and asked to discuss it with the judge. But the mistrial request was denied.
Mistrial was also requested after the Jewish Defense Organization left a flyer at Stewart’s home calling her a “traitor to America.” The flyer had a phone number for a message giving Stewart’s home address and saying “she belongs in a cage.” The message also urged callers to “reach out” to the jurors to demand her conviction–raising questions about potential jury tampering.
Stewart is now awaiting sentencing, and pledges to appeal her case. In her post-conviction interview with WBAI, Stewart said Judge Koetl “is empowered to give me a sentence of probation, and that is the only appropriate thing he can do while we are fighting the appeal.”
Stewart said Koetl has the opportunity to make a real statement–one way or the other. “If this judge gives me a substantial sentence…that will send a further message to the bar. Lawyers right now are aware that the government has laid down a standard for lawyers to toe the line, and if they don’t toe the line they could be subject to indictment…and face imprisonment. This puts a chilling effect out in the whole legal community.”
Justice for Lynne Stewart homepage:
FindLaw’s Legal Commentary on the Lynne Stewart verdict:
WORLD WAR 4 REPORT interview with Lynne Stewart:
Justice Department threatens WORLD WAR 4 REPORT
Special to WORLD WAR 4 REPORT, March. 7, 2005
Reprinting permissible with attribution