FacebookTwitterGoogle+RedditEmail

Ashcroft Loses Again in Lynne Stewart Case

by ELAINE CASSEL

John Ashcroft must be tearing out his primly coiffed hair about now. On July 21, Federal District Judge John G. Koeltl (Southern District of New York) dismissed the terrorist charges against New York attorney Lynne Stewart. In a 77-page opinion, Judge Koeltl agreed with famed civil rights attorney Michael Tigar’s argument that the anti-terrorist act under which she was charged was overly vague as applied to attorney speech and conduct related to client representation.

Stewart had been charged with aiding and abetting the terrorist activities of Sheikh Abdel Rahman, whom she, as court-appointed attorney, defended in connection with the 1993 bombings of the World Trade Center. After visiting her client in prison, Stewart answered a press question about Rahman’s support of a cease-fire of then ongoing terrorist activities, including the bombings of U.S. embassies. She said that he did not support a cease-fire. That statement was the basis of one of the charges that could have put her away for 15 years (she faced 40 years if convicted of all four charges). The other had to do with her supposedly being a “mouthpiece” to pass on messages from Rahman to the organization he was tied to, the Islamic Group, which is on the government’s list of terrorist organizations.

Judge Koeltl said that the provision in the 1996 Anti-Terrorism Act that forbids providing communication methods and personnel to a terrorist organization did not give an attorney notice that communicating with our about his or her client could amount to conspiring to engage in terrorism.

“The Government accuses Stewart of providing personnel, including herself, to [the Islamic Group],” Koeltl said. “In so doing, however, the Government fails to explain how a lawyer, acting as an agent of her client, an alleged leader of an FTO [foreign terrorist organization], could avoid being subject to the criminal prosecution as a ‘quasi-employee’ allegedly covered by the statute.”

Attorney General John Ashcroft, in his ongoing war on defense attorneys, would have liked to be able to charge attorneys who represent alleged terrorism suspects with being terrorists themselves. According to his losing line of reasoning, Stewart’s providing her legal services to a terrorist and using the phone to communicate with him was a violation of the law that presaged loss of liberties under the USA Patriot Act (as with the Patriot Act, few people took notice of the Anti-Terrorism Act when passed).

Koeltl refused to find the material support for terrorism statute unconstitutionally overbroad, saying its prohibitions are content-neutral and its purposes are “aimed not at speech but at conduct.” He let stand charges that Stewart violated the conditions imposed upon her when she visited Rahman in his prison hospital cell. It was there that she is alleged to have used subterfuge so that her client could pass messages to the Islamic Group through an interpreter whom Stewart brought with her to translate her conversations with Rahman (Stewart does not speak Arabic).

Ashcroft signed an executive order giving him the power to order the Bureau of Prisons to snoop in on certain attorney-client conversations. Stewart was the first, and to date only, defense attorney charged with violating the conditions imposed on attorney-client communications. Known as SAMs (Special Administrative Measures), the conditions are arbitrarily imposed at the whim of the Attorney General. The defense lawyer only knows that he or she may be bugged while engaging in what used to be thought of as sacrosanct communication afforded the highest and oldest privilege under the law–the attorney client privilege. Stewart did not know she was under surveillance until she was indicted.

While not admitting that she violated the SAMs, Tigar argued that Stewart was forced to sign what the government put before her in order to fulfill her duty to her client. A strong argument could be made that the purpose of SAMs are to chill attorney-client conduct related to certain defendants. Under these onerous conditions an attorney has two choices: sign the SAM and see the client, or not-sign and abrogate their legal duty to the client. It is troubling that Judge Koeltl let these charges stand. A government win on this will strike a severe blow to defense attorneys. For while few defense attorneys may be charged as terrorists, any attorney representing anyone upon whom Ashcroft wants to conduct surveillance (or even the attorney herself) could be the target of a SAM.

The net result of Judge Koeltl’s decision is that while Stewart is not facing terrorist charges, she is being charged for other crimes arising out of the same acts–speaking to and about her client. The heart of the case against Stewart remains what it always has been–defending the 6th amendment rights of defendants to have a meaningful defense (hard to do with the government is listening to your conversations with your client) and the right of attorneys to diligently and zealously represent their clients, as lawyer conduct codes demand.

Stewart and Tigar were guests on the July 23 edition of Democracy Now, the Pacifica Radio Network show hosted by Amy Goodman. Tigar said that Judge Koeltl’s opinion protects not only lawyers from being charged as terrorists, but ordinary citizens from being prosecuted for speaking out against events such as aspects of the war on terror and the war in Iraq.

Not willing to call it quits just yet, prosecutors said they were exploring possibilities of an appeal. “We continue to believe that the statute prohibiting material support of terrorism is constitutional, and we are reviewing our appellate options,” said a spokesman for James B. Comey, the United States attorney in Manhattan.

ELAINE CASSEL practices law in Virginia and the District of Columbia, teachers law and psychology, and follows the Bush regime’s dismantling of the Constitution at Civil Liberties Watch. She can be reached at: ecassel1@cox.net

More articles by:
Weekend Edition
May 27, 2016
Friday - Sunday
Charles R. Larson
Russian Women, Then and Now
May 26, 2016
Paul Craig Roberts
The Looting Stage of Capitalism: Germany’s Assault on the IMF
Pepe Escobar
Hillary Clinton: A Major Gold-Digging Liability
Sam Pizzigati
America’s Cosmic Tax Gap
Ramzy Baroud
Time to End the ‘Hasbara’: Palestinian Media and the Search for a Common Story
José L. Flores
Wall Street’s New Man in Brazil: The Forces Behind Dilma Rousseff’s Impeachment
Patrick Cockburn
The Battle of Fallujah: ISIS Unleashes Its Death Squads
John Feffer
The Coming Drone Blowback
Alex Ray
The Death Toll in Syria: What Do the Numbers Really Say?
Richard Pithouse
We Shall be the Prey and the Vulture
Binoy Kampmark
Trump and the Polls of Loathing
Manuel E. Yepe
A Cruise Ship Without Tourists Arrives in Havana
Jack Rasmus
Greek Debt Negotiations: Will the IMF Exit the Troika?
Ajamu Nangwaya
Pan-Africanism, Feminism and Finding Missing Pan-Africanist Women
Howard Lisnoff
Israel, a Palestinian State and Anti-Semitism
May 25, 2016
Eric Draitser
Obama in Hiroshima: A Case Study in Hypocrisy
Ryan Mallett-Outtrim
Does Venezuela’s Crisis Prove Socialism Doesn’t Work?
Dan Arel
The Socialist Revolution Beyond Sanders and the Democratic Party
Marc Estrin
Cocky-Doody Politics and World Affairs
Sam Husseini
Layers of Islamophobia: Do Liberals Care That Hillary Returned “Muslim Money”?
Susan Babbitt
Invisible in Life, Invisible in Death: How Information Becomes Useless
Mel Gurtov
Hillary’s Cowgirl Diplomacy?
Kathy Kelly
Hammering for Peace
Dick Reavis
The Impeachment of Donald Trump
Wahid Azal
Behind the Politics of a Current Brouhaha in Iran: an Ex-President Ayatollah’s Daughter and the Baha’is
Jesse Jackson
Obama Must Recommit to Eliminating Nuclear Arms
Colin Todhunter
From the Green Revolution to GMOs: Living in the Shadow of Global Agribusiness
Binoy Kampmark
Turkey as Terror: the Role of Ankara in the Brexit Referendum
Dave Lindorff
72-Year-Old Fringe Left Candidate Wins Presidency in Austrian Run-Off Election
May 24, 2016
Sharmini Peries - Michael Hudson
The Financial Invasion of Greece
Jonathan Cook
Religious Zealots Ready for Takeover of Israeli Army
Ted Rall
Why I Am #NeverHillary
Mari Jo Buhle – Paul Buhle
Television Meets History
Robert Hunziker
Troika Heat-Seeking Missile Destroys Greece
Judy Gumbo
May Day Road Trip: 1968 – 2016
Colin Todhunter
Cheerleader for US Aggression, Pushing the World to the Nuclear Brink
Jeremy Brecher
This is What Insurgency Looks Like
Jonathan Latham
Unsafe at Any Dose: Chemical Safety Failures from DDT to Glyphosate to BPA
Binoy Kampmark
Suing Russia: Litigating over MH17
Dave Lindorff
Europe, the US and the Politics of Pissing and Being Pissed
Matt Peppe
Cashing In at the Race Track While Facing Charges of “Abusive” Lending Practices
Gilbert Mercier
If Bernie Sanders Is Real, He Will Run as an Independent
Peter Bohmer
A Year Later! The Struggle for Justice Continues!
Dave Welsh
Police Chief Fired in Victory for the Frisco 500
May 23, 2016
Conn Hallinan
European Union: a House Divided
FacebookTwitterGoogle+RedditEmail