- On April 9, 2002, Attorney General John Ashcroft made
a symbolic visit to "Ground Zero." While in New York, he held
a well-publicized press conference at the US Attorney's Office and used
the occasion for an indictment. Four individuals were named on charges
of conspiracy and materially aiding a terrorist organization. One of them
was long-time civil rights lawyer Lynne Stewart. On the same day, FBI agents
arrested her at her home and illegally seized documents there and from
her office that are protected by attorney-client privilege.
- In July 2003, Federal District Court Judge John Koeltl
(a 1994 Clinton appointee) dismissed the original charges for being "unconstitutionally
void for vagueness" and because they "revealed a lack of prosecutorial
standards." Nonetheless, Stewart was symbolically reindicted on November
22, 2003 (the 40th year anniversary of John F. Kennedy's assassination)
on five counts of aiding and abetting a terrorist organization under the
1996 Antiterrorism Act. Specific charges included:
- -- "conspiring to defraud the United States;
- -- conspiring to provide and conceal material support
to terrorist activity;
- -- providing and concealing material support to terrorist
- -- two counts of making false statements."
- Stewart was also accused of violating US Bureau of Prisons-imposed
Special Administrative Measures (SAMS) that included a gag order on her
client, Sheik Abdel Rahman. These measures are imposed on some prisoners
to forbid discussion (even with an attorney) of topics DOJ claims are outside
the scope of their "legal representation." It's all very vague,
does more to harass and obstruct justice than protect state secrets, yet
Stewart was forced to accept them to gain access to her client.
- In her case, police state-type attorney-client monitored
conversations provided the basis for her indictment. However, engaging
in this practice stretches the limit of the law, gives DOJ sole authority
to decide how far and for what purpose, and in this instance egregiously
overstepped it by charging defense counsel with aiding and abetting terrorism
for representing her client as required.
- At former US Attorney General Ramsey Clark's request,
Stewart agreed to join him as a member of Rahman's court-appointed defense
team. He was convicted in his 1995 show trial and is now serving a life
sentence for "seditious conspiracy" in connection with the 1993
World Trade Center Center bombing despite evidence proving his innocence.
- However, in what's now common practice, the government's
case related more to his affiliations and anti-western views than specific
evidence presented. Rahman was connected to the Egyptian-based Al-Gamaa
al-Islamiyya (Islamic Group) - a 1997 State Department-designated "Foreign
Terrorist Organization (FTO). Ironically in the 1980s, he was handled much
differently as a "valuable (CIA) asset" for his influential role
in recruiting Mujahadeen fighters against the Soviets in Afghanistan. It
was no accident that he got a US visa, green card and State Department-CIA
protection for as long as he was valued. When he wasn't, he became a target
along with Lynne Stewart who represented him at trial.
- Stewart's charges were trumped up, outrageous, and likely
first time ever instance of a defense attorney in a terrorism case facing
terrorism-related counts - for doing her job as the law requires and that
renders attorney-client confidentiality sacrosanct under our criminal justice
system. No matter, if convicted, she faced a possible 30 year sentence.
- In America's "war on terrorism," her precedent-setting
case is chilling, and president of the Center for Constitutional Rights,
Michael Ratner, explained it: Its "purpose....was to send a message
to lawyers who represent alleged terrorists that it's dangerous to do so."
It's also an effort to exploit the current atmosphere, incite fear and
suspicions, stifle dissent, and make it just as risky for anyone with openly
critical views of government policies. In Police State America, we're all
- At the time of her indictment, her attorney, Michael
Tigar, explained what was at stake:
- "This case (still ongoing) is an attack on a gallant,
charismatic and effective fighter for justice (and has) at least three
fundamental faults: (it) attack(s) the First Amendment right of free speech,
free press and petition; (it) attack(s)....the right to effective assistance
of counsel ....chills the defense....(and) the 'evidence' in this case
was gathered by wholesale invasion of private conversations, private attorney-client
meetings, faxes, letters and e-mails. I have never seen such an abuse of
government power." In America's "war on terrorism," many
other defense attorneys can cite similar instances of lawlessness and injustice
- However, in targeting Stewart, DOJ may have gotten more
than it bargained for. Whatever the outcome, her case shamed the government,
gave her worldwide recognition, made her a powerful symbolic figure, and
elevated her to iconic stature. For her honor, devotion to principles,
and lifetime of service to society's most abused, she deserves it and more.
- Throughout her 30 year career, she never shunned controversy
or her choice of or duty to clients. She represented the poor, the underprivileged
and society's underdogs and unwanted who never get due process unless they're
lucky enough to have an advocate like her. She knew the risks and understood
the state uses every underhanded trick possible to convict these type defendants
and overwhelm, outspend and/or discredit their counsel doing it.
- Nonetheless, she did what the American Bar Association's
Model Rules state all lawyers are obligated to do: "devote professional
time and resources and use civic influence to ensure equal access to our
system of justice for all those who because of economic or social barriers
cannot afford or secure adequate legal counsel."
- Defending Sheik Rahman was especially risky, and Stewart
knew it. His case was so high-profile, it made her a target, and she remains
one today. It was the beginning of her long struggle (six years and running)
that included a battle against breast cancer that's now in remission.
- Her trial played out in the same Foley Square courtroom
where Julius and Ethel Rosenberg were unjustly framed, convicted and sentenced
to death in April 1951 on charges of conspiracy to violate the Espionage
Act. It was an earlier time of hysteria when "communism" was
the "threat," national security again the issue, and, in Stewart's
case, she's the victim.
- Her trial was a travesty and gross miscarriage of justice
with echoes of the worst type McCarthyist tactics. Inflammatory terrorist
images were displayed in court to prejudice the jurors, and prosecutors
vilified Stewart as a traitor with "radical" political views.
In fact, she always embraced the rule of law with equity and justice for
everyone under it. Nonetheless, prosecutors falsely accused her of saying
violence may be justified to overthrow oppressive governments and claimed
she advocated regime change in Egypt under its president, ruling despot,
and close US ally Hosni Mubarak.
- In addition, just days before the verdict, the extremist
pro-Israel Jewish Defense Organization put up flyers near the courthouse
displaying Stewart's home address, threatened to "drive her out of
her home and out of the state," and said she "needs to be put
out of business legally and effectively." Prosecutors ignored it.
It was all part of a government-orchestrated scheme inside and outside
the courtroom to heighten fear, convict Stewart, and tell other defense
attorneys to expect the same treatment if they represent "unpopular"
- It worked on the jury, and on February 10, 2005 (after
a seven month trial and 13 days of deliberation) Stewart was convicted
on all five counts. Key now would be sentencing for a decisive DOJ victory.
If gotten it would seriously weaken First Amendment free expression rights
and Fourth Amendment protections against unreasonable searches and seizures.
It would also destroy fundamental ones under Section 1 of the Fourteenth
Amendment that guarantees all US citizens won't be deprived of their right
of "life, liberty, or property, without due process of law; nor deny
to any person within its jurisdiction the equal protection of the laws."
- In addition, it would challenge the landmark 1963 Supreme
Court Gideon v. Wainwright decision that affirmed defendants' Sixth Amendment
rights "in all criminal prosecutions (to) the right to a speedy and
public trial, by an impartial jury....to have compulsory process for obtaining
witnesses in his favor, and to have the Assistance of Counsel for his defense."
- October 17, 2006 was Stewart's sentencing date. Prosecutors
asked for 30 years and hoped getting it would set a precedent. Instead,
the same Judge Koeltl, who dismissed Stewart's first indictment, again
defied DOJ. He sentenced Stewart to 28 months, let her remain free on bail
pending appeal, implied it might be overturned as a gross miscarriage of
justice, effectively rebuked the government, and handed them a major defeat.
- The trial ended with Stewart proud and vindicated. Next
came her chance for a full exoneration before the US Court of Appeals for
the Second Circuit three judge panel. Defense attorney Joshua Dratel represented
her on January 29, 2008 in a packed courtroom of mostly Stewart supporters
with many others denied admittance for lack of space.
- Dratel's job was to convince the court that Stewart had
First Amendment protected speech rights to release her client's statement
to his followers and other interested parties. He also cited Judge Koeltl's
unconstitutional use of US Code Title 18, Part I, Chapter 113B, 2339 (a)
relating to "harboring or concealing terrorists" because he "failed
to abide by his promise to impose a specific intent requirement" when
he charged the jury.
- In addition, Dratel argued that evidence against Stewart
amounted to no more than three meetings with her client over a two year
period. He further said that she was charged for "isolated and sporadic
conduct" in an alleged plot where no "violent acts were planned
or occurred," and, in fact, there was no plot.
- In response to one judge's question about her allegedly
saying Rahman withdrew his support for a cease fire, Dratel stated the
"cease fire was not abrogated. It remained in effect." He insisted
that Rahman merely said it was time to "reevaluate" the cease
fire because of the Egyptian government's oppression and recalcitrance.
Dratel stressed that with no intent to "incite imminent unlawful conduct
or violence," the First Amendment protected Stewart's statements.
- So does the Supreme Court's unanimous 1969 Brandenburg
v. Ohio decision that overturned Ohio's Criminal Syndicalism statute. The
Court ruled that government cannot constitutionally punish abstract advocacy
of force or law violation and only can do so in instances of directly inciting
"imminent lawless actions." Dratel referenced the "Brandenburg
standard" that's the law of the land and under which Stewart was within
- Assistant US attorney in the Southern District Anthony
Barkow, who was part of the prosecutorial team, argued for the government
before a potentially sympathetic court. It's at a time two-thirds of all
federal judges are from or affiliated with the extremist Federalist Society.
It advocates rolling back civil liberties; ending New Deal social policies;
opposing reproductive choice, government regulations, labor rights and
environment protections; and subverting justice in defense of privilege.
- This is what Stewart is up against as she awaits the
decision that can go either way in an age of police state justice. Under
New York state law, she was automatically disbarred, and the state Supreme
Court's Appellate Division denied her petition to resign voluntarily. Adding
insult to her unjust conviction, it ruled that "federal convictions
provide a proper predicate for automatic disbarment."
- It was the fourth injustice against a woman who spent
a lifetime advocating for society's most disadvantaged. It followed two
falsified indictments, a kangaroo court proceeding, and an unjustifiable
conviction on all counts. Combined they represent an outrageous miscarriage
- An appeals verdict is due any time, and legions of Stewart
supporters hope justice delayed won't be denied to her. She deserves full
exoneration, readmittance to the state bar, and to be able again to represent
society's most unwanted who need her advocacy and remain hopeful. So does
everyone who respects the law at a time it's being desecrated.
- Stephen Lendman lives in Chicago and can be reached at
- Also visit his blog site at sjlendman.blogspot.com and
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