The Lynne Stewart Guilty Verdict: Stretching the Definition of “Terrorism” To Its Limits
Monday, Feb. 14, 2005

On February 10, after thirteen days of deliberations, a federal jury in New York City returned a guilty verdict in the case of 65-year-old attorney Lynne Stewart. The jury found Stewart guilty on five counts of defrauding the government, conspiracy, and providing support for terrorism.

Stewart will be sentenced on July 15. She may serve up to thirty years in prison. Appeals are expected to consume years. In the meantime, Stewart will lose her right to practice law and face hard prison time.

The eavesdropping on attorney-client communications that led to this prosecution would have been unimaginable before September 11. I will argue that this eavesdropping has a serious cost in inhibiting defense attorney’s ability to zealously represent their clients. This cost is of a constitutional dimension: The Sixth Amendment’s right to counsel cannot be served while the government is a third party present at attorney-client meetings.

Another problematic aspect of the Stewart prosecution is how far the definition of support for terrorism was stretched. Stewart never provided any financial support, weaponry — or any other concrete aid — for any act of terrorism. No act of terrorism is alleged to have resulted from her actions.

Stewart’s supposed support for terrorism instead consisted of aiding her client in 2000 by giving a press release to Reuters News Service in Cairo, Egypt, and of being present when her co-defendants allegedly aided her client in writing a series of letters.

The Facts of the Case

Stewart was appointed by a federal court to represent Egyptian Sheik Omar Abdel Rahman. Rahman was convicted of conspiring to commit acts of terrorism in New York City in the months after the 1993 World Trade Center bombings. But Stewart had nothing to do with that conspiracy.

Rahman is currently serving a life sentence in federal prison hospital in Colorado (previously, he was serving his sentence in Minnesota).

Stewart continued to represent Rahman, after he was convicted, and his appeals were denied. She has said that her representation had two main purposes. One was trying to improve the terms of the blind and diabetic Sheik’s confinement. Another was to try to convince the U.S. to return him to his home country, Egypt.

The government, however, claimed that her continued representation was a ruse so that she could aid the Sheik in getting messages out to his followers, members of the Islamic Group, an organization tied to terrorism.

For a time, the government simply denied Stewart access to her client. But in 2000, the Justice Department said that visits could resume if Stewart would agree to certain restrictions on their meetings.

As I explained in an earlier article, these restrictions are known as Special Administrative Measures (SAMs). Pursuant to regulations enacted in 1996, these restrictions can be placed on a federal prisoner’s communications or contacts with the outside world – including visitors, and the media — when the government believes “that there is a substantial risk that a prisoner’s communications or contacts with persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons.”

The SAMs prohibited Stewart from having any contact with her client that the Department of Justice deemed to be outside the scope of “legal representation” and prohibited Rahman from having contact with anyone outside prison walls except his wife. The SAMs specifically restricted his access to the media.

Stewart agreed to the SAMs – having little choice, as it was the only way she could visit her client.

What Stewart did not know what that after she signed the SAMs, the government began surveillance of her visits, first under the 1994 Foreign Intelligence Surveillance Act warrant targeting her client, and then under specific regulations that allowed them to target her.

The Eavesdropping Regulation: How the Government Made Its Case

On October 31, 2001, Attorney General John Ashcroft, secretly amended the SAM regulations – without notice to the public. As amended, the regulations allow the Bureau of Prisons to conduct videotape and audiotape surveillance with respect to attorneys’ communications with people in federal custody.

There is no exception for attorney-client privileged communications; indeed, the regulations contemplate that these sacrosanct conversations will be the very ones surveilled. Moreover, the regulations apply not only to convicted persons, but also to defendants awaiting trial – and even detainees against whom no charges are even pending. Finally, the surveillance can be broad: It can done “to the extent determined to be reasonably necessary for the purpose of deterring future acts of violence or terrorism.”

No warrant is necessary for the surveillance to occur. Nor is specific notice to the attorney or the client that they will be monitored; according to the regulations. Rather, routine notice that their communications “may” be monitored is enough.

The government eavesdropped on Stewart’s communications with Rahman – and these communications, along with her subsequent communications with the media, are the sole basis for her conviction.

For full story go to: