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
