Why Lynne Stewart, Attorney for a Terrorist, Is No Heroine:
Crossing the Line Between Advocate and Accomplice

By SHERRY F. COLB
Wednesday, Jul. 30, 2003

Earlier this month, Judge John G. Koeltl of the Southern District of New York issued an opinion dismissing the two most serious charges pending against Lynne Stewart. Stewart is an attorney who has represented Sheikh Omar Abdel Rahman. Abdel Rahman, in turn, was convicted in 1995 in connection with the 1993 World Trade Center bombing, and he was sentenced to life imprisonment plus 65 years.

The charges dismissed against Stewart were a count of conspiring to provide material support and resources to a foreign terrorist organization, and a count of providing and attempting to provide material support and resources to a foreign terrorist organization.

Stewart supporters were pleased by the ruling and sang her praises, portraying her as something of a modern David waging war against the Goliath of the U.S. Justice Department. A few months ago, the students of CUNY Law School even selected Stewart for the Public Interest Lawyer Award. She would have received the honor at their graduation, had their dean not overridden her selection out of a fear of financial backlash from the school's constituents.

One might get the impression from all of this that Lynne Stewart is a heroine of civil rights, and that prosecuting her represents a frontal assault on the whole concept of zealous representation for criminal defendants. Many people have taken this position and further believe that the dismissal of some charges vindicates Stewart's actions. One would be mistaken in so concluding.

Void For Vagueness: The Basis for Judge Koeltl's Ruling

Judge Koeltl dismissed two of the charges facing Lynne Stewart on the ground that, as applied to her alleged conduct, the words of the relevant criminal statute are unconstitutionally vague. This is another way of saying that the statute under which Stewart was charged in the first two counts does not, on its face, appear to apply to the acts she stands accused of carrying out.

Every one of us has a right to know in advance if our behavior is to be subject to penalties under a criminal statute. For that reason, no one - not Lynne Stewart, not Ted Bundy - may be prosecuted under a law that she could not have reasonably predicted would be applied to her behavior.

Consider an example. Carol Criminal steals a fax machine from a government office. Carol is caught in the act and charged with larceny. The relevant statute defines "larceny" as the theft of property from a dwelling, but no one lives ("dwells") in the government office in question. Accordingly, Carol could not have predicted, from reading the larceny statute, that her conduct would subject her to prosecution. An indictment of Carol for larceny would therefore be properly subject to dismissal as unconstitutionally vague as applied to her case.

Note a significant feature of our hypothetical Carol Criminal case: the fact that she cannot be prosecuted for larceny means neither that she did nothing wrong nor that the Constitution protects and vindicates her right to do what she did. All it means is that the particular law that prosecutors selected for prosecuting her was poorly chosen.

Similarly, knowing that two counts of the indictment issued against Stewart were dismissed does not tell us that her actions were appropriate, justifiable or constitutionally protected. It does not even tell us that she is innocent of any serious crime.

To evaluate whether Stewart's alleged actions deserve our praise or condemnation, we must look instead to what she stands accused of doing, independent of which statute does or does not apply.

The Presumption of Innocence

The first thing we must acknowledge, in discussing the actions of Lynne Stewart, is that she has not yet stood trial. The trial - of her as well as of the three men who were charged along with her in the indictment - is scheduled to begin in January 2004.

In the absence of a trial, we do not know what the evidence will show Stewart to have done. We know only what she stands accused of doing. As I have explained elsewhere, we are under no obligation to "presume" that Stewart is innocent, as long as we are not members of her jury.

Still, it remains the case that Stewart and her co-defendants might not have done what the government claims. In speaking of and assessing the worthiness of her actions here, I therefore draw no ultimate conclusions about her guilt. That is for time and the evidence to tell.

SAMs: Gag Rules and Other Measures Affecting Attorney and Client Speech

Under ordinary circumstances, an attorney who represents a criminal defendant may go to the press and tell the people what her client has to say. Whether the client denies the allegations, claims a justification, or simply sends his love to family and friends, his lawyer may - with the client's permission - convey that information to any and all third parties willing to listen. The distribution of such communications falls within an attorney's role as spokesperson for her client.

For a relatively small number of criminal defendants, however, the government designates this spokesperson role as off-limits to their attorneys. In the case of such defendants, believed to pose special risks to the safety of Americans here or abroad, an attorney representing them must agree not to convey the client's messages to third parties (and may be subject to other requirements that also do not affect most attorneys).

The reason for such limitations is the fear that the client will use his lawyer to communicate instructions for carrying out violent acts. The gag rules and other restrictions that apply to lawyers working for this set of clients are called "special administrative measures" or "SAMs."

SAMs have garnered criticism on the ground that they deprive defendants of rights including free speech. Abdel Rahman was placed under such SAMs by the Bureau of Prisons at the direction of the Attorney General. His lawyer, Lynne Stewart, agreed to abide by the measures but believed that they violated the Constitution.

What Stewart Stands Accused of Doing

In May of 2000, Lynne Stewart signed an affirmation in which she agreed to adhere to SAMs. These SAMs allowed her to be accompanied by translators when speaking to Abdel Rahman, but only to communicate with her client about legal matters. The SAMs also prohibited the dissemination of Rahman's communications to third parties.

A few days after agreeing to these conditions, Stewart allegedly visited with her client and pretended to consult with him on legal matters. In actuality, however, the government claims that she was permitting Abdel Rahman to discuss with his interpreter whether "the Islamic Group" should continue its ceasefire with Egypt.

The Islamic Group is an entity that has been officially designated by the Secretary of State as a foreign terrorist organization, and Rahman is allegedly the organization's spiritual leader. According to the government, after the meeting at which the prohibited conversation took place, Stewart announced to the media that her client had withdrawn his support for the then-existing ceasefire between the Islamic Group and Egypt.

Stewart is accused as well of having played a role in facilitating (by pretending to be consulting with her client) the release of other instructions given by Rahman. Among them was the issuance of a fatwah under Rahman's name, calling on "brother scholars everywhere in the Muslim world to do their part and issue a unanimous fatwah that urges the Muslim nation to fight the Jews and to kill them wherever they are."

Jeopardizing her Cause

If Stewart indeed did what she is alleged to have done, then she is guilty of serious misconduct that jeopardizes the very rights that she claims to be defending.

Consider an analogy. An organized crime boss - Nicky the Nose - awaits trial from a detention facility. Authorities fear that he will order a hit against one of the witnesses involved in fingering him to the police. They also believe that his followers will await such an order and not act without his instructions.

Accordingly, the prosecutor's office places SAMs on Nicky the Nose and refuses to allow his lawyer - Michelle Mouthpiece - to speak to him until she promises in writing not to relay any communications from Nicky to third parties. Notwithstanding her promise, Michelle gives a press conference at which she says "Nicky has expressed to me his wishes that Stan Stooley be put out of his misery as soon as possible. I repeat, this message comes directly from Nicky the Nose."

In giving her press conference, Michelle has effectively ordered a hit on Stan Stooley. Neither she nor her client has a free speech right that protects such an order, and if Stan Stooley is later killed as a result of the order, Michelle Mouthpiece shares responsibility for his death.

The same is true for any killing in Egypt that might have taken place at the direction of Abdel Rahman, if Lynne Stewart made that direction public, as she is alleged to have done.

A Heroine?

But hasn't Stewart at least struck a blow against the SAMs, by courageously violating them at great personal risk? No. On the contrary, her alleged behavior provides a strong case for having SAMs in the first place.

Lynne Stewart did not give a press conference at which she said that Rahman feels he was falsely convicted and will one day prove his innocence. She also did not get up and say that Rahman feels he is living under inhumane prison conditions. Such speech would technically violate the SAMS, but it would nonetheless arguably represent the sorts of communications that every prisoner should have a right to share with the public.

What Stewart is accused of having communicated, instead, is an instruction to kill people, an instruction that is and ought to be illegal regardless of whether or not SAMs are in place. And it may indeed be precisely the concern that such violent orders could be camouflaged for a well-meaning attorney that led to the broad gag orders contained in existing SAMs. In other words, Stewart may be a poster child for the sorts of government crackdowns that impede legitimate and protected attorney/client interactions.

Lynne Stewart is alleged to have gone public with a violent instruction that Rahman did not even bother camouflaging. This is deplorable conduct, no matter how objectionable one might consider the SAMs. It further brings shame to a profession that depends on lawyers' ability to remember that no matter what anyone says of us, we are not and must never become hired guns.


Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.

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