US: Civil rights on trial

Lynne Stewart was shocked when she was arrested. At first she thought her husband, a well known activist, was having some trouble with the police. "No," they said, "we want you."

As a defense lawyer Stewart represents unpopular clients, and believes in protecting civil liberties. Over the course of her long career she defended Attica prisoners, Black Panthers, suspected terrorists, and student activists. Her record as a brilliant, radical trial attorney is legendary. In 2004, the graduates of CUNY Law School chose Stewart to receive their ‘Public Interest Lawyer Award’. Now she needed a good lawyer.

Don’t hold a press conference, host the Letterman Show

On the night of 9 April, 2004, hours after Stewart’s arrest, Attorney General Ashcroft appeared on the David Letterman show, and boasted that a "terrorist lawyer" had been indicted and warned anyone who wanted to aid terrorists that punishment would be swift and harsh. This was answered by a round of applause. Ashcroft cleverly chose the forum of a television show to score points, rather than a press conference, where his views could be challenged by the media or by the legal profession. After all, this was the first time a defense attorney had been prosecuted by the federal government in a terrorism case. This public relations stunt on a popular late night talk show not only did not allow the other side to be heard, but potentially prejudiced future jurors. From the first, it was part of the Justice Department’s plan to try the case in the court of public opinion rather than with evidence in a court of law.

Surveillance overkill

Lynne Stewart’s arrest stemmed from her defense of Sheik Omar Abdel Rahman, who was convicted of the 1993 bombing of the World Trade Center. Sheik Rahman was connected to an organisation called the ‘Islamic Group’, and was on the Secretary of State’s ‘terrorist watch list’. Rahman’s place on the list guaranteed that he would be under surveillance, and from 2000 to 2002, the US government engaged, overall, in 85,000 acts of wiretapping, intercepting emails, faxes and phone calls, as well as planting hidden cameras and microphones.

Bill of Rights – void where prohibited by Law

In addition to wiretapping, the government issued a Special Administrative Measure or a (SAM), which is gag order from the Attorney General. The SAMs prohibits certain prisoners from communicating with the outside world, and also with their own lawyers on any topic which the Justice Department chooses. The Department of Justice (DOJ) is in charge of the monitoring process, "to the extent determined to be reasonably necessary for the purpose of deterring future acts of violence or terrorism." There is no oversight on the surveillance, neither on its length nor its scope. Most disturbingly, the type of legal representation a person receives is left to the DOJ. The government not only used the SAMS but they also got a FISA warrant. It is a special warrant under the Federal Intelligence Surveillance Act (FISA). The DOJ goes to a special FISA court which is comprised of a rotating panel of federal district court judges and convinces them that it needs to conduct counter intelligence on people and on organizations engaging in terrorism and secret intelligence activities against the United States. FISA warrants are not supposed to be used against American citizens but the exceptions are national interest (a vague category which can be extended to any form of protest) and also to protect against acts of terrorism (also vague). FISA warrants become effective immediately without public scrutiny.

Too much is never enough: roaming warrantless wiretaps

Ashcroft didn’t stop there. On Oct 31, 2001, in the climate of fear after 9/11, Ashcroft created broader unrestricted wiretap provisions, which allow wiretaps without a warrant, unlike FISA and Title III. These new regulations were created precisely to thwart criminal defence lawyers. Only a notice is provided to the lawyer and the client stating that they may be under surveillance. Unlike FISA and Title III warrants, American citizens can be singled out for any reason.

A lawyer’s conflict of interest- represent your client or the State Department

The government watched Stewart for two years and set up every conceivable barrier to the vigorous defence of her client. Finally, when Stewart issued a press release written by the Sheik, which called for a withdrawal of a ceasefire between the Islamic Group and the Egyptian government, the DOJ moved in on their prey. Stewart along with a paralegal, Ahmed Abdel Sattar, and an Arabic interpreter, Mohammed Yousry, were arrested. Interestingly, a fourth, Yassir Al-Sirri, was also indicted, but the British government wouldn’t allow his transportation from the United Kingdom since they felt there wasn’t enough evidence to justify extradition.

Stewart was charged with five counts of conspiracy to defraud the United States, which referred to the evasion of the SAMs by issuing the press release. Stewart was also charged with "conspiring to prepare to assist a conspiracy" to conduct terrorism. "Conspiring" to "prepare" is two steps removed from any sort of criminal act. This second charge also referred to the issuing of the press release, which was alleged by the DOJ to unleash a wave of unspeakable violence and terror.

Test case for the Patriot Act

Up to this time, it was the choice of lawyers to speak or not, according to the best interests of their clients. Now the government is taking that option away from the legal profession and keeping it for themselves. Administrative gag orders like the SAMs are a smokescreen which allows the government to circumvent civil liberties. Not only the US Constitution, but the European Court of Human Rights holds lawyer client privilege to be untouchable. Even by the standards of bourgeois democracy, it is clear that capitalism is incapable of enforcing its own laws when it comes down to protecting human rights. Stewart was on trial for doing exactly what good defence lawyers are expected to do- zealously defend their clients. Issuing press releases and statements on behalf of a client is part of a lawyer’s job.

Stewart was told by prison officials that she would be prevented from seeing her client if she refused to comply with the SAMs. This, apparently, was the worst consequence, until the DOJ decided to make an example of her. Monetary fines, disqualification up to disbarment; these are the punishments usually reserved for infringements of administrative rules. Disobedience of a federal rule, like the SAMs, is not a criminal act.

The fact that the Bush administration wants to put Stewart in jail for 20-30 years sends a strong, vengeful message: Flout our rules and we will lock you up for life. This is a warning to the lawyers of Guantanamo Bay detainees: drop your cases or you will find yourself sharing a cell with the people you are representing. This is especially meant to silence any opposition to the war in Iraq and the attack on rights and living conditions in the US.

Alberto Gonzalez’s recent confirmation as Attorney General, spells it out clearly. We can torture. We don’t care about your rules. We make the rules. Stewart had inadvertently become a test case for Ashcroft’s Patriot Act.

"If you mention Osama Bin Laden’s name, you don’t have to present any evidence"

Stewart’s case was tried in a federal court, six blocks from the site of the 9/11 attacks. During the course of the seven month trial, the prosecution, lacking hard evidence, again and again invoked the images of the World Trade Center bombing in an attempt to whip up the sentiments of the jury. The prosecution even showed a video during the course of the trial in which Osama Bin Laden speaks admiringly of Sheik Abdel Rahman. Even though the judge instructed the jury to keep any connection between Bin Laden and Lynne Stewart out of their minds, the prosecution’s tactic of emotional manipulation was allowed by the judge, and the damage was done. Stewart said after the verdict, "If you mention Osama bin Laden’s name, you don’t have to present any evidence. You can tell the jury that he has nothing to do with the case, but there’s been…this drumbeat that makes it very difficult for our voice to be heard."

Jury has a failure of nerve

At first, the jurors were asking tough questions of the prosecutors about the lack of evidence, but then the will of the jurors appeared to be broken, apparently because of the Osama Bin Laden video. The jury deliberated for fifteen days, and Stewart’s supporters took this as a positive sign. However, when the verdict was rendered, three of the jurors burst into tears. Stewart said, "Why were they weeping if they thought they had done justice? You only can say that somehow they knew they hadn’t but felt that they had to bring in this verdict which was asked of them by the government lawyers."

Who are the real victims of terrorism?

Stewart and her co- defendants were found guilty of all charges. Stewart faces 20-30 years in prison. None of the defendants were charged with committing terrorism, neither was the government ever able to connect Stewart to acts of terrorism. The press release issued by Rahman never resulted in violence, and the cease fire still stands.

This is a terrorism case without victims, unless you count the innocent people, past and present, arrested and swept up by the police, and jailed, tortured, deported or murdered. There are many victims of state terrorism, and the future will bring more.

We can free Stewart

We have the power to stop these repressive measures in their tracks. We must go out into the streets, not only to secure the freedom of Stewart but to take the offensive in the war that Bush and his co- conspirators have made against us. Not only to demand an end to war, and a reversal of the cuts to wages, health care, education and the privatisation of Social Security. It is necessary that we demand a living wage for all, free quality education at all levels, and national health care which is fully funded and comprehensive. To achieve this, we must build a political alternative to capitalism and the terror campaign it has waged against us. We need to build a mass party of the working class, with a strong socialist current, that will be prepared to conduct class war on the real terrorists in this world: big business and their political henchmen.

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February 2005