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Another Bedrock Right Obliterated

Lynne Stewart’s Conviction Hurts Us All

by JENNIFER VAN BERGEN

In a shocking jury verdict today, a tireless watchdog for liberty was convicted of violating special administrative prison rules and of providing material support to terrorists.

Only a few weeks ago, Assistant U.S. Attorney Anthony Barkow told the jury in his closing statement that Lynne Stewart "thought she could blow off the rules that apply to everyone else because she’s a lawyer, and she’s above the law. She said, ‘I think my client is more important than the law. My cause is more important that the risk to lives of innocent people.’ "

This is a complete distortion of the woman I have come to know. The woman who, when her husband became angry at a heckler during her speech at a small rally, told him the man was only exercising his rights to free speech–he had a right to disagree with her.

The woman who is as courteous to the man next to her at the podium, who is declaring that the ACLU–which, remember, stands for the American CIVIL LIBERTIES Union — is a communist organization, as to those who thank her for coming.

A woman who put herself endlessly and courageously on the front lines to defend the rights of those who were under-represented, unrepresented, disenfranchised, or disregarded: those whose voices are suppressed or silenced.

Lynne Stewart never ever thought she could blow off the rules that apply to everyone else. She never thought she was above the law. She never supported or endorsed terrorism. Nor did she ever intend to provide material support to terrorists.

The words she spoke to her client were meant for her client alone and the one who has violated rights here is the Department of Justice. They violated something so sacred that it can hardly be spoken without somehow losing the value of it: they violated the attorney/client privilege. The DOJ violated this privilege by listening in on her conversations with her client, which they then took out of context and tried to make into a monstrous thing.

But is anyone prosecuting them for this violation? No.

The DOJ has violated something more, as well. They have violated the right of an accused to have zealous counsel represent them. This right is so fundamental that our Framers put it in the Bill of Rights: the Sixth Amendment right to counsel.

The DOJ has violated the last vestige of democracy: the judiciary, by using this system to destroy one of the watchdogs of liberty, our criminal defense lawyers. Without criminal defense lawyers, who will protect us from government incursions of our rights?

Now, the idea of a convicted terrorist having any sort of privilege is perhaps unfathomable to a jury. But that privilege is considered sacrosanct and we all have it, we all may call upon the attorney/client privilege because without it, we have no defense attorneys, we have no defense, and we have no witnesses to government abuse of our rights.

Lynne continued to believe in her client’s innocence, and to declare that evidence against him was fabricated by our government in order to secure his conviction.

Has this fact come out anywhere? Has any newspaper revealed that the client Stewart represented was convicted on fabricated evidence? Have any of them investigated the charge? Has the Department of Justice investigated it? No? Why not?

Well, as far as I know, Lynne never brought this charge out to the press during her trial. But it was certainly known to the DOJ. And if it is true that her client was convicted on fabricated evidence, what does it mean that she is now convicted because of her representation of him?

The New York Times writes today about Stewart’s conviction: "The government never showed that any violence ever resulted from Mr. Sattar’s calls or from any action by Ms. Stewart or Mr. Yousry; there were no victims in the case. The Islamic Group never cancelled the cease-fire, which remains in effect to this day. The defendants were never accused of plotting any terrorism in the United States. The evidence showed that Ms. Stewart had had nothing to do with writing or issuing the fatwa."

AND: "Ultimately the jury appeared to have been persuaded by the fact that Ms. Stewart, a lawyer, had clearly violated the legal letter of the prison rules."

Violated the legal letter of prison rules? A violation of an administrative measure is not a crime. Do you sentence an attorney to twenty years in jail for not following a regulation?

Surely we all know how magic tricks work. It is sleight-of-hand.

This day, while I do not want to believe that the prosecutors themselves maliciously prosecuted Stewart, the best I can believe is that they have blinded themselves with their own zeal. But I have seen prosecutors and government officials declare what they should have known were untruths about the law, what I knew were untruths and if they didn’t know they were untruths, they could only have been ignorant of the law.

This day the Justice Department has done a great injustice, not just to Lynne Stewart, but to our entire system of justice, to our country, and to our democracy. I fear the upshot of this event and can only hope the members of the Second Circuit Court of Appeals are able to maintain their clear-headedness in the face of the deep-seated fears of terrorism we all share and the huge barrage of innocuous and irrelevant evidence they will have to review.

Lynne Stewart’s conviction does not only hurt the bar; it hurts us all.

JENNIFER VAN BERGEN, J.D., is the author of The Twilight of Democracy: The Bush Plan for America (Common Courage Press, 2004). She has written and spoken extensively on civil liberties, human rights, and international law. She is currently organizing a major Forum on Dissent Since 9/11 in Miami from March 11-13. See www.partnersinprotest.org. She may be contacted at jvbxyz@earthlink.net.