Legal Rights on Trial

Ann Schneider Dec 1, 2004

John Ashcroft has decided to pass the baton of U.S. Attorney General, but the impact of his tenure leaves many questions. In a federal courtroom at 40 Centre Street in downtown Manhattan, the ongoing trial of longtime civil rights lawyer Lynne Stewart may answer one question: can the government undermine such basic legal rights as the confidentiality of attorney-client relations?

Following the September 11 attacks, Ashcroft issued a new regulation allowing the Department of Justice to conduct surveillance on attorneys meeting with clients in federal prisons “to the extent necessary to deter future acts of violence or terrorism.” This new rule, unveiled on Oct. 31, 2001, went into effect without any congressional action or public comment. No warrant or judicial application is required – the Department of Justice itself decides who needs the monitoring.

Months later, FBI agents raided Stewart’s law office, seized her computer and removed box after box of her files on April 9, 2002. Using the 1996 Antiterrorism Act, Ashcroft accused Stewart of aiding an “international terrorist organization” by providing material support to Sheik Abdel Rahman, her former client who was convicted on conspiracy charges relating to the World Trade Center bombing in 1993. In a bizarre twist, Ashcroft came to New York City and appeared on the David Letterman Show to announce the indictment of Stewart and three others in the case.

It turned out that the government had been spying on conversations between Stewart and Rahman for some 18 months prior to Ashcroft’s October 2001 ruling.

What did Lynne Stewart do to earn the enmity of the Justice Department? As the ethical canons require of an attorney, she has defended many unpopular clients, including her successful defense of Larry Davis, who was charged with attempted murder after wounding six cops in a Bronx shoot-out. Most likely, Ashcroft saw in her an easy target and a way of attacking the attorney-client privilege itself.

In July 2003, Judge John Koetl threw out charges that Stewart provided “personnel” to terrorists as too vague, saying that under that theory, any legal services or representation provided by a lawyer to a defendant accused of terrorism would become illegal. But the prosecution just rewrote the indictment using a slightly different theory of material support.

Stewart made an especially attractive target because of her public belief that the “entrenched, ferocious kind of capitalism that perpetuates sexism and racism can only be overcome by a people’s revolution.” Indeed, prosecutor Andrew Dember repeatedly questioned her about this statement during four and a half days of cross examination of Stewart that took place in November. The obvious point was that an avowed revolutionary is also a terrorist, and any attorney who represents someone accused of terrorism becomes guilty by association.

Stewart’s co-defendants Ahmed Abdel Sattar and Mohammed Yousry served as paralegals and translators for her prison meetings with the Sheik in Rochester, Minnesota, in May and June 2000. (A fourth co-defendant, Yassir al-Sirri remains in England where they have refused to extradite him, citing insufficient evidence.)

The primary evidence against the three is the audio and videotapes made of their private attorney meetings in the Minnesota prison where the Sheik was being held in May 2000. The tapes were made pursuant to a foreign intelligence investigation, not subject to the Fourth Amendment warrant requirement against unreasonable search and seizure. They show that Stewart, along with the Arabic translator, provided news clippings and a few letters from his followers to the Sheik, in violation of a special prison regulation imposed on him.

The prosecution’s case rests largely on Stewart’s apparent violation of her agreement to respect this “Special Administrative Measure.” But the defense showed that Stewart was forced to agree to this measure as a condition of visiting her blind, elderly and diabetic client in jail; that the terms were not negotiable and they essentially kept the Sheik incommunicado, since no one in the jail spoke Arabic. Judge Koetl has ruled that the prosecution must prove that Stewart knowingly and intentionally violated this agreement in order to win a conviction.

In taking the stand in October, Stewart testified that she was concerned about the Sheik’s health and access to medical treatment. In her prison meetings with him, she was considering whether to bring a lawsuit to try to alleviate his conditions of confinement. She testified that her legal goals were to keep the Sheik alive in the eyes of the Egyptian public and to try to get him transferred to serve his prison term in his home country.

To this end, she issued a press release in June 2000 to the Arabic press at the Sheik’s request, withdrawing his support for a cease-fire between Islamic militants and the Egyptian government of Hosni Mubarak. Rahman’s press release stated he had changed his mind about the utility of the ceasefire, but it ended with the language, “I am not there, I could be completely wrong. Consider this my advice only.” Stewart’s attorney, the renowned Michael Tigar, proved that the Islamic Group decided to maintain the ceasefire anyway.

The prosecution failed to meet the huge burden they assumed – to show that the Sheik’s press release actually led to acts of terrorism committed on his behalf by third persons in foreign countries. Instead, they subpoenaed journalists whom Stewart had spoken to in order to confront her with her past political statements. This demonstrates that there was never any substance to the case, only show.

Stewart’s statements on the stand were thoughtful and modest. Asked by her attorney would she do it over again, that is, issue the press release at the Sheik’s request, she broke down in tears. “It’s a very difficult question. I am diminished by the loss of my clientele. My family has suffered tremendously. I don’t know if I would do it again.” Regaining her composure, she added “But I don’t believe I violated any law or regulation of the U.S., or any ethical duties to my clients.”

The significance of this show trial is to deter attorneys from representing anyone accused of “terrorism.” As the Bush administration continues its basic assault on the rule of law anywhere in the world, that term is likely to be applied to many dissenters if the prosecution of Stewart succeeds.

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