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Tuesday, July 22, marked a big victory against the Bush/Ashcroft assault on civil liberties, with a federal judge in Manhattan tossing out the terrorism charges the Justice Department had so theatrically leveled against activist attorney Lynne Stewart back in 2002.
Stewart, an attorney who has made a name for herself defending prominent leftists including black nationalists and members of organizations like the Weather Underground, was arrested at her home and charged with helping her client, jailed terrorist bomber Sheik Abdel Rahman, pass messages to his terrorist supporters, known as the Islamist Group, in Egypt. The charges were based upon anti-terrorism laws passed hastily by congress in the wake of the 9/11 attacks.
Attorney General John Ashcroft (after first notifying all the city’s media outlets so they’d be on hand outside her building), had personally announced the arrest of Stewart, which many activist and civil liberties lawyers saw as a blatant attempt to intimidate lawyers from defending anti-government clients being prosecuted under the so-called USA PATRIOT ACT. Ashcroft had hailed the arrest of Stewart as the first prosecution based upon a new federal policy permitting prison authorities to secretly monitor and tape formerly privileged jailhouse conversations between inmates and their attorneys.
Stewart and her attorney, Michael E. Tigar, had argued that the statutes being used against her were unconstitutionally vague and a violation of both the first amendment and the long-established fundamental right of confidentiality between attorney and client–one of the basic elements underpinning a free and fair judicial system.
Indeed, at one early hearing in the case, the government refused to promise, as requested by Tiger, not to monitor his conversations with his own client, Stewart. At the time, Stewart said she had been forced to communicate with her attorney "on the street, at public places like McDonalds, or on payphones."
The government charged that Stewart, who has to communicate with Sheik Rahman through an interpreter, had deliberately diverted the attention of prison guards while Rahman, who is serving a life sentence for plotting to blow up New York landmarks, passed a message to his interpreter telling his minions in Egypt that they should cease adhering to a cease-fire in their fundamentalist terror attacks in that country. The government also alleges that Stewart, who had signed an agreement in 2000 with prison authorities agreeing not to pass information on from Rahman, had violated her agreement.
Stewart denies that she passed such information, and argues that her conversations with her client were protected.
The charges against her which have now been lifted, had carried a possible 15-year sentence.
Several lesser charges remain, including making false statements and conspiring to defraud the government. Meanwhile, James B. Comey, the U.S. Attorney prosecuting the case, says he is looking into whether to appeal the district court’s decision.
Federal prosecutors, in their complaint against Stewart, had called her "an indispensable and active facilitator of the terrorist communication network" and compared her to a bank robbery accomplice whose job it was to distract security guards while the actual robbers took the money.
Stewart called the rejected charges, "so broad that you can sweep anybody under its rug." She asked, rhetorically, how an attorney could be anything but a "conduit of communication" if you were "taking calls from your client."
Her attorney, Tigar, said he hoped to get the other charges against Stewart lifted by the court after further facts were presented in continuing pretrial hearings.
An obviously relieved Stewart said that the lifting of the anti-terrorism charges by the judge "augurs well for things returning to a normalcy where the judges and courts are able to take a good look at what the government is doing, and consider what it’s doing and stand up for the judicial branch and for justice."
While Stewart is entitled to celebrate the decision, her statement may be an overly optimistic view of the current state of affairs. Significantly, her case is being overseen by a jurist, Federal District Judge John G. Koeltl , who was a 1994 Clinton appointee to the bench.
The Bush administration, for three years now, has been nominating judges to the federal bench who have a much more pinched and antagonistic view towards constitutional protections and lawyer-client privilege.
As the percentage of judges appointed by the Bush administration to all levels of the federal judiciary, from district court to the Supreme Court, rises, the odds of cases like Stewart’s being tossed out on summarily on constitutional grounds will plummet.
Dave Lindorff is the author of Killing Time: an Investigation into the Death Row Case of Mumia Abu-Jamal. A collection of Lindorff’s stories can be found here: http://www.nwuphilly.org/dave.html