Revolutionary Worker #1209, August 10, 2003, posted at rwor.org
On July 22, John Ashcroft and the U.S. government suffered a significant setback in their drive to persecute attorney Lynne Stewart. Federal Judge John Koeltl threw out two of the most serious government charges against Stewart--conspiracy to materially aid a terrorist organization and materially aiding a terrorist organization. Each charge carried a possible 20-year prison term.
In April 2002, U.S. Attorney General John Ashcroft stepped in front of news cameras and reporters in New York City to announce the indictment of Lynne Stewart along with three Arab men--Mohammed Yousry, Ahmed Abdel Sattar, and Yassir Al-Sirri. Stewart is the lawyer for Islamic cleric Omar Abdel Rahman, who was convicted and sentenced to life for seditious conspiracy in connection with supposed plots in the early 1990s to attack New York landmarks. Prosecutors claimed that the 1993 bombing of the World Trade Center was part of these plots.
The government based its allegations against Stewart chiefly on conversations that are supposed to be constitutionally protected--that between an attorney and client. The government said Stewart, Yousry (Rahman's translator), Abdel Sattar (a para-legal), and Al-Sirri (who lives in London) violated "special administrative measures" that restrict Rahman's communications with the outside world. Prosecutors said the four helped Rahman pass messages back and forth between Rahman and his organization, the Islamic Group. Stewart (who does not speak Arabic) was accused of speaking up in English to distract anyone listening so that Yousry could communicate secretly with Rahman in Arabic. The government said those actions amounted to "material support" to terrorists.
After the press conference announcing the indictment of Lynne Stewart, Ashcroft appeared on the "David Letterman Show" that evening and spoke about the case. Clearly the government was out to make a very public example of Stewart and to send a chilling message to lawyers who might consider representing people accused of terrorism or other political charges.
The charges announced by Ashcroft against Stewart were: conspiracy to provide material support to a terrorist organization, providing material support to a terrorist organization, conspiracy to defraud the U.S. government, and making false statements. By making those charges, Ashcroft threatened the right to a lawyer and a competent defense for anyone targeted in the government's "war on terrorism." Conviction on any of the charges would be a very dangerous legal precedent and would seriously undermine the rights of lawyers to consult with their clients without government spying and intrusion.
The government's hounding of Lynne Stewart has unfolded in the context of fundamental changes that are underway today in the U.S. legal system. Constitutional principles that were said to be bedrock to the U.S. system of justice--including due process, probable cause, right to counsel, and independence of judges--are being jettisoned in key respects. Limits placed on law enforcement spying on political activities in the 1960s and `70s have been lifted. Detention without charges, massive surveillance without criminal suspicion, and prosecutorial overreaching are now facts of life in America. (For more on these changes, see "Warning: The USA Patriot Act and Other Dangerous Things" in RW #1206, available online at rwor.org/badmoonrising)
In the charges against Lynne Stewart, the government used secret surveillance tapes of conversations between her and her client. These conversations took place in 2000. But it was not until two years later --in the wake of 9/11 and the passage of the highly repressive Patriot Act--that the government indicted Stewart.
In his ruling, Judge Koeltl said that the "antiterrorism" statute used against Stewart could not apply to a lawyer doing what she is supposed to do as a lawyer. Koeltl said, "The government fails to explain how a lawyer, acting as an agent of her client" who is accused of leading a terrorist group, "could avoid being subject to criminal prosecution as a `quasi-employee.' "
Stewart talked to the RW about the significance of the 1996 anti-terrorism law that the government has used against her: "The way this law was used in my case, you could literally indict almost any lawyer who's representing a person who is a member or a leader in a foreign terrorist organization and go after the lawyer just for being the lawyer.... This is the law that Ashcroft has used to indict so many people. I believe it was used against the Lackawanna 5. It was used and is being used down in Tampa against Sami Al-Arian. It's used for people who write a check to Hezbollah or send blankets to kids in Iraq... `Materially aiding a foreign terrorist'--what does that mean? And when the judge stopped to analyze what was the basis of it and what had I actually done, he felt that it was so vague there was no way that anyone could know what is against the law. You can't figure it out just by reading the words of the act. And so for that reason he held it to be...a speech issue in the sense that what I did was pure speech."
Speaking after the judge's decision, Stewart's attorney, Michael Tigar, told Amy Goodman of Pacifica Radio's "Democracy Now!": "I think the significant thing is that the defense of Lynne Stewart has always been a defense of the right to defend, the right to counsel. And of course if you empower brave lawyers like Lynne Stewart you help people.... This case was, from the beginning, an attempt to chill the exercise of vigorous advocacy. So let's hope that some more lawyers take courage and others join the fray."
The judge's decision to throw out two serious charges in Lynne Stewart's case runs counter to the general trend in cases where the government has charged people with "terrorist" crimes. Strong support for Lynne Stewart clearly played a role in this development. The government's indictment touched off widespread anger and alarm, and many people spoke out against this injustice. Stewart has spoken at conferences, meetings, and events across the country. Amicus briefs supporting Lynne Stewart were filed by the National Association of Criminal Defense Lawyers and the National Lawyers Guild.
Lynne told the RW : "I am convinced that I would never be where I am today except for the phenomenal support--across-the-board support--that I've received from everybody... We would travel from city to city, and people would come out to hear what was this all about--in a church in Milwaukee, in the law schools in Tucson and in Phoenix, right up to Berkeley.
"I feel all this support was noticed. And I certainly feel that, when we filled the courtroom with our supporters, the climate changed...when our supporters lined up in the halls and filled every seat in the courtroom and were waiting to get in. I think that could not go unnoticed by the judge. They're not usually aware of the public. Basically it's the government's courtroom. This time he had to be aware of the public and the support. And I really consider this a victory for the whole movement, because we all worked to accomplish this goal."
The dropping of the two most serious charges against Stewart is an important victory for the people. But the fight is far from over. The two remaining charges are also based on secret government surveillance of conversations and phone calls between Stewart and her client. If found guilty on those charges, she could receive 10 years in jail and lose her license to practice law. The Justice Department attorney prosecuting the case has said that the government may appeal the judge's decision to throw out two charges.
Another factor is that there have already been several disturbing rulings in the case. The court granted a prosecution motion that the Justice Department may do background checks on "persons associated with the defense" and the court's own personnel. The court also agreed that based on these background checks, the Justice Department may then refuse to allow the defense team to see classified documents--even if these documents may be part of the "evidence" presented against Stewart.
The judge also refused a defense motion to sever the cases of the four defendants and try all the defendants separately. As Lynne Stewart explained to the RW,this decision "allows the government to present what they think is the strongest evidence all in one big fell swoop, even though it may not apply to me at all." (More information and legal documents about the case and legal documents are available at www.lynnestewart.org)
Over several decades Lynne Stewart has defended her clients with passion, principle, and expertise. She has represented political prisoners including David Gilbert and Richard Williams of the Ohio 7, who were ruthlessly targeted after armed actions against the government. In the late 1980s she successfully represented Larry Davis, who defended himself when drug-dealing cops tried to kill him. And she took up the defense of Arab men targeted by the government after the World Trade Center bombing in 1993.
Lawyers who have the courage to defend those persecuted by the government are precious to the people and the fight for justice. And such lawyers must be defended when they themselves face attacks from the government.
( For more background, see the RW Interview "Lynne Stewart: Lawyer Under Fire" in RW #1162, available online at rwor.org)
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