Human Rights Defender Lynne Stewart

“Never deny the politics; that’s your shield and your sword. Tell the truth on the charges, but embrace the politics” – Lynne Stewart

Anti-terrorism legislation and practices in the wake of the September 11, 2001, attacks on the World Trade Center and the Pentagon have made human rights defenders in the United States increasingly vulnerable to repressive consequences, especially defense attorneys with a commitment to protecting civil liberties. The Department of Justice and its constituent entities such as the Federal Bureau of Investigation (FBI) and the Immigration and Naturalization Service (INS) increasingly monitor and intervene in situations that allegedly impact US “national security”. – Such action has had a chilling effect on human rights defenders who stand between government agencies and potential victims of abuses.

The case of Lynne Stewart demonstrates that defenders of “terrorist” suspects may, by virtue of their defense activities, become suspects themselves.

Lynne Stewart, a sixty-three-year-old civil liberties attorney practicing in New York City, has built an illustrious career defending those alleged to be revolutionaries, terrorists, and others perceived as threats by the US Government. Most recently, Stewart has provided legal representation for Sheik Omar Ali Abdel Rahman, who was convicted in 1995 of plotting terrorism against the United States, including planning to bomb landmarks in New York. As a result of her defense of Sheik Abdel Rahman, Stewart herself has been charged by the US Department of Justice with providing “material support” to a terrorist organization.

Stewart and her colleagues have steadfastly and unequivocally maintained her innocence. They point out that the charges leveled by the Government accuse her of doing what any good lawyer would do in defense of a client.

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Despite her history of civil libertarian activism and her understanding of the workings of the federal judiciary, Stewart says she had no inkling that she was the subject of a three-year investigation by the Department of Justice until the morning of April 9, 2002, when Federal agents arrested her at her New York home. Stewart recalls that she was upstairs preparing to go to court when she hears her husband downstairs speaking to a group of law enforcement agents. He says he wants to see their warrant and identification. Stewart assumes that because of her husband’s lifelong political involvement, the agents are there to arrest him. She reassures him, “Don’t worry, we’ll have you out by lunch”. Whereupon one of the agents says, “We’re not here for him, we’re here for you”.

Stewart remembers being astounded. She is handcuffed and taken to FBI headquarters in Manhattan. At the same time, FBI agents enter Stewart’s office and search it until 6 p.m. They remove computer hard-drives, address books, appointment books, and rolodex files of clients. After three hours at FBI headquarters, Stewart is taken across the street and locked up at US District Court for the southern district of New York.

Stewart’s own lawyer, Susan Tipograph, brings the indictment to her cell. Stewart has been indicted under the 1996 Antiterrorism Act and charged with four counts of aiding and abetting a terrorist organization, charges that carry the potential for forty years in prison. The indictment indicates that Stewart's communications with Sheik Abdel Rahman had been the subject of government wiretaps for more than two years, probably by means of Foreign Intelligence Surveillance Act warrants that do not require probable cause, but only a suspicion that one is engaging in terrorist activities.

The indictment outlines four charges against Stewart: providing material support to a terrorist organization; conspiracy to provide material support to a terrorist organization; defrauding the United States Government; and lying to the United States Government. The first two charges are felonies, each one carrying a maximum sentence of fifteen years in prison. The latter two carry maximum sentences of five years each.

Stewart is released after her children sign a bond for $500,000.

Against the advice of attorneys and friends, at 5 p.m. on the day of her arrest Stewart holds a press conference that draws coverage from media outlets across New York and the country. She takes the opportunity to deny categorically all the charges. She questions the intrusive methods used by the government in gathering information for the indictment and suggests that her long history of political activism may have had more than a little to do with her arrest.

On the morning Lynne Stewart was arrested, United States Attorney General John Ashcroft arrives in New York City. That evening, in front of national and international television outlets, he announces criminal indictments against four defendants, including Lynne Stewart. He states,

Since our country was attacked over six months ago, I have sought to reassure the American people that the actions of the Department of Justice are carefully designed to target terrorists and to protect American rights and freedoms. Today's actions pursue the same objectives with the same protections in mind. We will not look the other way when our institutions of justice are subverted. We will not ignore those who claim rights for themselves while they seek their destruction for others. We will, in the President's words, defend freedom—and justice—no matter what the cost.

Later that evening, Ashcroft appears on “Late Nite With David Letterman”, a television program watched by tens of millions of American households. He sings his own composition, “Screaming Eagles”. He announces Stewart’s arrest as a significant development in the fight against terror.

Stewart secures the legal representation of Michael Tigar, a prominent professor of constitutional law at American University and a renowned civil rights defense attorney. At her arraignment, dozens of defense attorneys are in the courtroom—not only eager to offer her support, but also apprehensive that the Justice Department's aggressive war on terrorism might include monitoring their conversations with particularly controversial clients.

As a result of the charges, Stewart’s law practice suffers a dramatic decline. Much of her income has come from her selection to represent indigent clients under the Criminal Justice Act. For indigent persons accused of a crime, the US Criminal Justice Act provides attorneys’ fees. Attorneys are chosen to represent those individuals by the relevant court. Such clients charged with Federal offenses formed the greater part of Stewart’s income. She is now barred from being selected for that work.

Tigar and Stewart win an early procedural victory when the judge appointed a “Special Master” – a lawyer outside the Department of Justice – to determine which records seized from Stewart’s office could be examined by the Government. Stewart also wins the right to visit clients in Federal prisons, but she is barred from contact with Sheik Abdel Rahman.

Oral arguments in Stewart’s case are presented in mid-June, 2003, in a United States federal courtroom in New York City. On June 13 presiding Judge John G. Koeltl questions government prosecutor Christopher J. Morvillo on the distinction between political activity protected by the US Constitution and criminal conduct in terrorism cases. The prosecutor replies, “You know it when you see it, your honor”.

On July 22 Stewart receives Judge Koeltl’s seventy-seven page decision. She is acquitted of the two charges related to providing material support to terrorists. The decision concludes that government prosecutors had applied the 1996 Anti-Terrorism Act in a way that was unconstitutionally vague. The judge did not attempt to strike down the entire 1996 anti-terrorism law, but he said the defendants were correct to argue against a prosecution based solely on use of telephones and other means of communication.

Trial on the charges of lying to the Government and defrauding the Government is scheduled for January 10, 2004. A conviction on any of these charges would result in a prison sentence and the loss of Stewart’s license to practice law.

The court’s decision in Stewart’s case has a broader impact. It protects defense attorneys from being charged under the 1996 law for providing “material support”. In Stewart’s words, “The Government cannot indict a lawyer for doing what lawyers do, and then claim that that is materially aiding a terrorist organization”. The decision also affirms the validity of First Amendment defenses in response to charges brought under the 1996 law.

Michael Tigar says of the decision,

The ruling holds that the First Amendment of the United States Constitution, freedom of speech, press, association, and petition, requires that if you're going to limit speech, you have to do so with statutes that let people know what they can and cannot say or do. And that this statute as applied by these prosecutors, flunks that test. I think the significant thing is that the defense of Lynne Stewart has always been a defense of the right to defend, the right to counsel, and, of course, if you empower brave lawyers like Lynne Stewart, you help people. But this opinion goes broader than that. It says that the prosecution is an attack on the right of all people to express themselves. And that means that the judge has taken a view of the First Amendment that empowers, not just lawyers to defend people, but all people who want to talk about, to protest and analyze the current American policy in the Middle East. It means that lawyers who give their services to represent people accused of terrorist crimes—so-called terrorist crimes, can breathe a little easier if this opinion holds up. This case was, from the beginning, an attempt to chill the exercise of vigorous advocacies. So let's hope that some more lawyers take courage….

The judge’s decision was a significant setback for the US Government’s judicial strategy of suppressing suspected terrorists. Nearly all criminal terrorism cases brought by the US Government since September 11, 2001, have depended upon the 1996 law, the Anti-Terrorism Act. The law had been used successfully against Lyman Farris, charged with plotting to blow up the Brooklyn Bridge; Sami Al-Arian, accused of providing financial support to alleged Palestinian terrorists; John Walker Lindh, an American who fought with the Taliban in Afghanistan; and alleged terrorist sympathizers (so-called “sleeper-cell” members) in New York state, Seattle, Detroit, and Portland, Oregon.

The Act criminalizes the provision of assistance to foreign organizations identified as terrorist on a list maintained by the US Department of State. In addition to weapons, explosives and money, communications equipment, personnel, and training are also identified as “material support”. In allegedly passing on messages from her client, the Government argued that Stewart provided communication equipment and personnel in the form of her telephone and herself. It was this application of this law that was rejected by Judge Koeltl in Lynne Stewart’s case.

David Cole, a professor of law at Georgetown University in Washington, DC, has said, “There is a reason that this statute has been a linchpin in the post-9/11 war on terror. It does not require the government to prove any actual connection to terrorist conduct but instead allows it to rely on guilt by association”.

Eric M. Freedman, a law professor at Hofstra University, says, “The government’s position that one can be locked up for decades for expressions of political positions on the telephone amounts to simple thought control”.

Nevertheless, four months after Judge Koeltl’s decision, Attorney General Ashcroft and US Attorney James Comey announced a reframed indictment that attaches different material to the original charges. Stewart must again face a potential sentence of forty years in prison.

There has been much speculation about why Stewart was targeted for prosecution by the Department of Justice when many other attorneys were engaged in similar activities. Some have suggested that Attorney General Ashcroft may have seen Stewart as an easy target because she is a woman, a 1960s-era activist, and a prominent civil libertarian. Stewart herself believes that her arrest was a political decision. She doubts that New York District prosecutors would have brought a case against her without pressure from the Department of Justice. Says Stewart, “You make choices. You live your life in a certain way and you know there could be consequences, especially when you’ve been fighting the Government as long as I have”.

The United Nations Declaration on Human Rights Defenders states in Article 9 that everyone has the right “to offer and provide professionally qualified legal assistance or other relevant advice and assistance in defending human rights and fundamental freedoms”. Article 12 states

The State shall take all necessary measures to ensure the protection by the competent authorities of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the present Declaration.

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Lynne Stewart grew up in Queens, a suburb of New York City. In 1957, she entered a strict Calvinist college in Michigan, where she encountered severe restrictions on behavior, especially for women. She also witnessed appalling treatment of Mexican migrant agricultural workers. She transferred to American University in Washington DC, and completed her studies at Wagner College on New York’s Staten Island.

In 1962 she took a job as a librarian at an elementary school in Harlem, a predominately African American section of New York City, where she became aware of how deep and profound the effects of racism in the USA could be. She says, “What made me become radical? Harlem, 1962”.

It was also at this time that she met her lifelong partner, the New York education activist Ralph Poynter. Together they worked for community control of schools in African American neighborhoods in New York City. For his participation in related demonstrations, Poynter was arrested several times and lost his teaching license.

The surveillance, infiltration, and eventually successful co-opting of the movement for local control of New York City schools were a priority for the US Department of Justice. Because Stewart belonged to groups that had been infiltrated by government informants, she has appeared in Department of Justice surveillance files from the early 1960s.

In the mid-1960s Stewart moved to a working class neighborhood on the lower east side of Manhattan, where she would continue to reside for thirty-five years. In the early 1970s she graduated from the law school at Rutgers University in New Jersey. At the same time, she and Ralph were raising seven children and operating a motorcycle repair shop. During this period she was arrested several times for her participation in protests against US military involvement in Vietnam.

Within two years of graduating from law school, she had her own practice, writing wills, defending misdemeanor charges, representing residents of Chinatown and those charged with offenses related to their sexual identity, and as she says, “Everything that came in the door”.

In 1981 Stewart began to combine her law experience with her political concerns. That year several of her friends were arrested at JFK Airport for protesting the arrival of the South African national rugby team. Objecting to the team’s presence in the US was a significant action for anti-apartheid activists.

The same year members of the radical Black Liberation Army and the Weather Underground killed two policemen while robbing an armored car in Nyack, New York. Stewart decided to represent two of the defendants. One client was acquitted; the other’s guilt was never in question. Stewart used the opportunity of her defense to elucidate the elements of US politics and society that the radical groups felt compelled to attack.

Through this and later cases, Stewart’s philosophical and practical approach was, “Never deny the politics; that’s your shield and your sword. Tell the truth on the charges, but embrace the politics”. Presenting the political context in which alleged offenses were committed became Stewart’s key legal strategy. This is often made more palatable to a general audience by her plain and direct way of speaking. She is renowned for her brilliant, straightforward, often blunt trial summations.

In 1988 Stewart served as lead counsel with William Kunstler in the defense of a young black man named Larry Davis. Allegedly acting on a warrant that was never found, thirty-six policemen arrived at Davis’ house to arrest him. In the subsequent shoot-out, six police officers were wounded. Stewart proved through forensic evidence that the police fired first and won an acquittal for Davis by reason of self-defense.

In 1989 Stewart refused to testify before a grand jury against one of her own clients and was charged with contempt. She spent part of her time over the next ten years in and out of appellate courts defending the right of lawyers to refuse to divulge information on their clients.

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In late 1994 Stewart was persuaded by former US Attorney General Ramsey Clark to take on the case of Sheik Abdel Rahman, who stood accused of planning terror attacks on New York City landmarks, including the United Nations building, the George Washington Bridge, the Holland Tunnel, and the FBI building. Sheik Abdel Rahman was charged with “seditious conspiracy”, a rarely invoked charge intended to prevent violent overthrow of the US Government. He was also charged with plotting to murder Egyptian President Hosni Mubarak.

Stewart and Sheik Abdel Rahman interviewed each other at his place of detention, the Metropolitan Correctional Center in Manhattan; they agreed that she would be the right person to defend him. Stewart says, “I was convinced then and remain convinced that Sheik Abdel Rahman was wrongfully charged and wrongfully convicted, and was the victim of the long reach of President Mubarak and the Government of Egypt”. She believes that Sheik Abdel Rahman’s arrest and prosecution can only be understood in the context of the importance of Egypt to US policy in the Middle East.

Stewart found herself with two months to prepare her defense while the US Government had been preparing its prosecution for two years. But Stewart regarded the Government’s case as built on a fundamental weakness: the comments made by Sheik Abdel Rahman on which the charges were based had been solicited and drawn from him by a government informer.

Stewart is clear that Sheik Abdel Rahman may well understand and to some degree share the motivations for planning terrorist bombings against the USA. But that does not mean he would participate in planning such attacks, let alone assist in carrying them out. Stewart describes Sheik Abdel Rahman as “sustained by his religious and political beliefs, which are inseparable. He is very intelligent, very charming and burns very bright with his convictions of how change should come about”.

Sheik Abdel Rahman’s position as a designated Muslim religious leader places him in a position to be sought out for his advice, which he feels compelled by his faith to give freely. At a very young age, his parents placed him in the care of religious leaders at an Egyptian mosque renowned for its teaching. Blind from the age of two, he had memorized the Koran by the age of ten. He was destined to become, and in fact became, a venerated religious elder. He does not speak English.

However, Michael Mukazy, the presiding judge in Sheik Abdel Rahman’s trial refused to allow a defense based on the Sheik’s religious responsibilities in spite of the fact that the charges were based on evidence from a government informer who approached Sheik Abdel Rahman asking for spiritual guidance. He also denied Stewart’s request to provide education on Islam to the jury, on the basis that the witnesses called in that effort would, “confuse the jury”.

Sheik Abdel Rahman was convicted in October 1995, and immediately airlifted to the federal prison hospital in Springfield, Missouri.

An appeal was made to a three-judge panel at the Second Circuit US Court in Manhattan. The decision, pending for a year after the close of arguments, affirmed the conviction in language that effectively blocked further defense options.

In June of 1996 the Bureau of Prisons used its Special Administrative Measures to further isolate Sheik Abdel Rahman. He was permitted no visitors other than blood relations, all of whom are in Egypt and cannot get visas; over the course of ten years, he has had one visit from his wife. His phone calls were limited to one per month to his wife and one per week to his lawyers. Because he is always held in isolation, he is not allowed to attend religious services although he can worship in his cell. He is not allowed contact with the press, and all his mail, in the form of audiotapes and Braille, is vetted by the FBI.

In order to maintain any contact with her client, Stewart and the other defense attorneys signed an agreement to abide by these strictures of the Special Administrative Measures.

As a result of Stewart’s efforts, Sheik Abdel Rahman was moved in the autumn of 1996 to Rochester, Minnesota, where his prison medical care improved and he had access to the Mayo Clinics. As his diabetes has worsened, he became largely unable to care for himself. Furthermore Stewart became increasingly concerned about the effects of isolation on his mental health.

In spite of the restrictions of the Special Administrative Measures, in June 2000 Sheik Abdel Rahman wrote a public letter to an attorney in Egypt representing imprisoned members of the violent opposition group Gamma Islamya, to which he had been spiritual advisor. In 1997, Gamma Islamya had signed a cease-fire with the Mubarak Government that has held until the present day.

In the letter, Sheik Abdel Rahman made the following points. While Gamma Islamya had observed a cease-fire for three years, no concessions had been forthcoming from the Egyptian Government. There had been no releases of the organization’s members who were detained without charge. Military trials were continuing; torture was being used. While he acknowledged that he was not on the scene and not fully informed, he nevertheless questioned whether the cease-fire should continue.

The substance of this letter was made public in a press release issued only to Reuters in Cairo, and its text was eventually carried only in the Cairo press. But the person reading the text over the phone to the Reuters reporter was Lynne Stewart. Soon after, Stewart received a call from Patrick Fitzgerald, Assistant US Attorney for southern New York, who berated her for reading the statement to Reuters.

In January 2001, after the negotiations with the Government, Stewart received a new set of Special Administrative Measures that allowed her to visit Sheik Abdel Rahman. Months later, Stewart learned that in the interval the Department of Justice, acting under the Foreign Intelligence Surveillance Act, had placed cameras and recording devices in the area where her visits took place. A recording device was also placed in the phone Sheik Abdel Rahman used to call Stewart and his other attorneys.

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On September 11, 2001, Lynne Stewart was driving to work in Manhattan when her son phoned her to say he has seen black smoke rising from the towers of the World Trade Center. She turns on her car radio, heard of a second plane hitting the towers and knows immediately it is a terrorist attack. The World Trade Center is ten blocks from her office; she is acquainted with some of those who die in the building. She has the same response of shock, horror, and outrage felt by other New Yorkers.

In the wake of the attacks, Sheik Abdel Rahman was transferred to a special wing of the Federal prison in Florence, Colorado. Stewart has not been allowed to see him since their last visit in July of 2001. But she is still suing to improve the conditions of his imprisonment, which have included inadequate medical care, routine flooding in the cell, lack of Arabic speaking staff, delayed response to his calls for a guard. In addition to his blindness and acute diabetes, he also suffers from heart disease.

Sheik Abdel Rahman continues to serve a prison sentence of life plus sixty-five years in Florence, Colorado.

Lynne Stewart faces the new charges of “providing material support” to terrorists in a trial that is scheduled to begin in May, 2004.

The United Nations Declaration on Human Rights Defenders states in Article 9 that everyone has the right “to offer and provide professionally qualified legal assistance or other relevant advice and assistance in defending human rights and fundamental freedoms”. Article 12 states

The State shall take all necessary measures to ensure the protection by the competent authorities of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the present Declaration.