By Mary Reinholz
Despite a sore throat and the formidable weight of the federal government bearing down on her a second time, Downtown defense lawyer Lynne Stewart came out swinging over the weekend in the wake of a superseding indictment charging her with conspiring to provide material support to a terrorist group some four months after a federal judge had dismissed two similar charges against her. She had been scheduled to stand trial Jan. 12 on lesser counts from her April 2002 indictment.
In a telephone interview, Stewart denounced Attorney General John Ashcroft and outgoing New York U.S. Attorney James B. Comey for “pure vindictiveness” in fashioning a new legal foundation to press additional charges against her and two co-defendants last month. She is now charged under a different statute. They are accused of conspiring to support a terrorist plot to kidnap and kill people outside the country as a means of winning the release of Stewart’s imprisoned Egyptian client, Sheikh Omar Abdel Rahman and, as in the first indictment, breaking jail house rules to do so.
The sheikh, a blind Muslim cleric, is serving a life sentence plus 65 years for plotting to blow up the World Trade Center and other New York landmarks in 1993. Stewart represented him at his 1995 trial and continued to visit him in a Minnesota hospital prison facility, unaware that their visits were being monitored by the U.S. Bureau of Prisons starting in 2000, according to Stewart.
“They did a press conference in Washington, D.C.” Stewart said of Ashcroft and Comey, who was promoted by President Bush in October to become deputy attorney general and his appointment was confirmed by the U.S. Senate last week. “And to me this was pure vindictiveness. They do not like to lose, so they come up with this new thing. They poured all their frustration and anger at being defeated publicly on this case into this indictment. The first 40 paragraphs of the indictment are the world as Ashcroft sees it. This doesn’t have anything to do with me but it ‘s supposed to inflame the jury.”
Stewart said there was “nothing new in terms of substantive charges” in the superceding indictment and called it a “thinly disguised attempt to send a cold wave through the defense bar.”
The superseding indictment was filed in the Southern District on Nov. 19 . Federal Judge John G. Koeltl had dismissed as constitutionally vague two of the material aid charges against Stewart on July 22 and, she said, “ordered the government to correct some of the mistakes in the old indictment.”
In her first five count indictment from last year, Stewart was charged with materially aiding terrorism for allegedly using herself as “personnel” to pass on information from the sheikh to a federally designated terrorist organization he founded called the Islamic Group via fax and telephone. A central allegation against her was that she issued a press statement to Reuters in Cairo expressing the jailed sheikh’s view that the designated terrorist organization should reconsider its cease fire with the Egyptian government.
Under the current indictment, Stewart and co- defendants Mohammed Yousry, an Arabic translator, and Ahmad Abdel Sattar, a U.S. postal worker and paralegal, are charged with secretly providing Abdel Rahman as “personnel” in their prison communications to further the aforesaid criminal plot by the Islamic Group.
For example, the superseding indictment charges that during a July 2000 prison visit to the sheikh, Youssry told Abdel Rahman that Sattar had been informed that the U.S.S. Cole had been bombed in Yemen on the sheikh’s behalf and that Sattar was asked to convey to the United States government that more terrorist acts would follow if the U. S. did not free Abdel Rahman. While Yousry was informing Abdel Rahman about this purported scheme, Stewart allegedly concealed the conversation between Yousry and Abdel Rahman from the prison guards by, among other things, “shaking a water jar.”
In Washington, D.C, the Justice Department said in a statement that the additional charges, like those originally brought against the defendants, are based on their dealings with Abdel Rahman. Ashcroft described him as “an influential and high-ranking member of terrorist organizations based in Egypt and elsewhere, who is serving a sentence of life in prison in the United States for conspiring to wage a war of urban terrorism against the United States.”
Ashcroft said the government’s decision to bring additional charges against the defendants was justified “by the evidence we obtained during our investigation, and reflects the seriousness of the conduct allegedly engaged in by the defendants.”
Ron Kuby, a criminal defense lawyer on lower Broadway and radio talk show host who represented Abdel Rahman in 1994 with the late William Kunstler, said the government’s new arguments in prosecuting Stewart are “dubious and dangerous”. Calling Comey a “puppet” of the Attorney General, he said he believes Ashcroft may have decided to seek another indictment against Stewart and her co-defendants rather than risk losing on an appeal of Judge Koeltl’s decision because Ashcroft “does not accept defeat.’”
“Lynne gave him a huge fight,” Kuby said. “She convinced Judge Koeltl ,no radical, that the Ashcroft construction goes far beyond what Congress intended and perhaps what the Constitution allows’” He added: “I think that the Justice Department did not wish to risk losing a Second Circuit appeal, thereby giving his critics a well-crafted blueprint to oppose Patriot Act II, written by a distinguished and not particularly liberal court. Strategically, it was best to cut his losses and have Koettl’s opinion standing out there, alone.”
Kuby noted that the Clinton era anti-terrorism statutes under which Stewart and her co-defendants are being prosecuted were “never designed to criminalize ‘material support’ for a terrorist organization.”
“Congress and Clinton intended to outlaw charities and other fundraisers that were being used to funnel money to terrorist groups,” he said, claiming that “Post-9/11, Ashcroft realized that ‘material support’ could mean anything. Theoretically, even advocacy, such as writing an editorial, can be construed as providing material support—public relations services. Ashcroft uses this against John Walker Lindh—who pleaded guilty, as well as others who have pled out.”
Marvin Smilon, a spokesperson in the New York office of the U.S. Attorney, said that “our office prosecuted this case” and that Comey “was in charge of the prosecution.” He declined to comment on Comey’s reasons, but noted the superseding indictment contained “more allegations and a lot more conduct” than the first indictment.
Stewart has pleaded innocent to all the charges against her, insisting her actions as a lawyer for Abdel Rahman “are constitutionally protected. I think I did what most good lawyers would do and I felt that from the moment they put handcuffs on me” in 2002 “that I had done no wrong and this will be put to a jury. I’m convinced absolutely that people will recognize this for what it is.”
Previously, Stewart acknowledged violating prison rules when visiting her client, but said the rules were unconstitutional.
Although Stewart recently argued a case in the Bronx,she said the indictments have been damaging to her law practice “and the waiting game is tough. We were geared to go to trial and it’s like being on unpaid vacation in the worst possible place.” The trial date for Stewart is now set at May 11 in the U.S. District Courthouse on Pearl St. She believes she could be indicted again if the government loses at trial, not unusual in major cases.
