John Ashcroft has decided to pass the baton of U.S.Attorney General, but the impact of his tenure leavesmany questions. In a federal courtroom at 40 CentreStreet in downtown Manhattan, the ongoing trial of longtimecivil rights lawyer Lynne Stewart may answer onequestion: can the government undermine such basic legalrights as the confidentiality of attorney-client relations?
Following the September 11 attacks, Ashcroft issued a new regulationallowing the Department of Justice to conduct surveillance on attorneysmeeting with clients in federal prisons “to the extent necessary to deterfuture 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 Departmentof Justice itself decides who needs the monitoring.
Months later, FBI agents raided Stewart’s law office, seized hercomputer and removed box after box of her files on April 9, 2002.Using the 1996 Antiterrorism Act, Ashcroft accused Stewart of aidingan “international terrorist organization” by providing materialsupport to Sheik Abdel Rahman, her former client who was convictedon conspiracy charges relating to the World Trade Center bombing in1993. In a bizarre twist, Ashcroft came to New York City andappeared on the David Letterman Show to announce the indictmentof Stewart and three others in the case.
It turned out that the government had been spying on conversationsbetween Stewart and Rahman for some 18 months prior toAshcroft’s October 2001 ruling.
What did Lynne Stewart do to earn the enmity of the JusticeDepartment? As the ethical canons require of an attorney, she hasdefended many unpopular clients, including her successful defense ofLarry Davis, who was charged with attempted murder after woundingsix cops in a Bronx shoot-out. Most likely, Ashcroft saw in her an easytarget 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 thattheory, any legal services or representation provided by a lawyer to adefendant accused of terrorism would become illegal. But the prosecutionjust rewrote the indictment using a slightly different theory ofmaterial support.
AN ATTRACTIVE TARGET
Stewart made an especially attractive target because of her publicbelief that the “entrenched, ferocious kind of capitalism that perpetuatessexism and racism can only be overcome by a people’s revolution.”Indeed, prosecutor Andrew Dember repeatedly questioned herabout this statement during four and a half days of cross examinationof Stewart that took place in November. The obvious point was thatan avowed revolutionary is also a terrorist, and any attorney who representssomeone accused of terrorism becomes guilty by association.
Stewart’s co-defendants Ahmed Abdel Sattar and MohammedYousry served as paralegals and translators for her prison meetingswith the Sheik in Rochester, Minnesota, in May and June 2000. (Afourth co-defendant, Yassir al-Sirri remains in England where theyhave refused to extradite him, citing insufficient evidence.)
The primary evidence against the three is the audio and videotapesmade of their private attorney meetings in the Minnesotaprison where the Sheik was being held in May 2000. The tapeswere made pursuant to a foreign intelligence investigation, notsubject to the Fourth Amendment warrant requirement againstunreasonable search and seizure. They show that Stewart, alongwith the Arabic translator, provided news clippings and a few lettersfrom his followers to the Sheik, in violation of a special prisonregulation imposed on him.
The prosecution’s case rests largely on Stewart’s apparent violation ofher agreement to respect this “Special Administrative Measure.” But thedefense showed that Stewart was forced to agree to this measure as a conditionof visiting her blind, elderly and diabetic client in jail; that theterms were not negotiable and they essentially kept the Sheik incommunicado,since no one in the jail spoke Arabic. Judge Koetl has ruledthat the prosecution must prove that Stewart knowingly and intentionallyviolated this agreement in order to win a conviction.
LYNNE STEWART’S TESTIMONY
In taking the stand in October, Stewart testified that she was concernedabout the Sheik’s health and access to medical treatment. Inher prison meetings with him, she was considering whether to bringa lawsuit to try to alleviate his conditions of confinement. She testifiedthat her legal goals were to keep the Sheik alive in the eyes of theEgyptian public and to try to get him transferred to serve his prisonterm in his home country.
To this end, she issued a press release in June 2000 to the Arabicpress at the Sheik’s request, withdrawing his support for a cease-firebetween Islamic militants and the Egyptian government of HosniMubarak. Rahman’s press release stated he had changed his mindabout the utility of the ceasefire, but it ended with the language, “Iam not there, I could be completely wrong. Consider this my adviceonly.” Stewart’s attorney, the renowned Michael Tigar, proved that theIslamic Group decided to maintain the ceasefire anyway.
The prosecution failed to meet the huge burden they assumed – toshow that the Sheik’s press release actually led to acts of terrorismcommitted on his behalf by third persons in foreign countries.Instead, they subpoenaed journalists whom Stewart had spoken to inorder to confront her with her past political statements. This demonstratesthat 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 thepress release at the Sheik’s request, she broke down in tears. “It’s avery difficult question. I am diminished by the loss of my clientele.My family has suffered tremendously. I don’t know if I would do itagain.” Regaining her composure, she added “But I don’t believe Iviolated any law or regulation of the U.S., or any ethical duties tomy 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.