| On June 14, 2000, radical attorney Lynne
Stewart broke a signed agreement with the U.S. Department of Justice. She
released a press statement to the Reuters news service in Cairo on behalf of
her imprisoned client, Sheikh Omar Abdel Rahman, convicted of instigating the
1993 World Trade Center bombing. The statement said, in part, that the Sheikh,
spiritual advisor to the fundamentalist Islamic Group [IG], wished to call off
a cease-fire then observed in Egypt by the IG. Following this press release,
the Clinton Justice Department admonished Stewart for violating the Special
Administrative Measures [SAMs], which prohibited the Sheikh from communicating
in any way with the outside world. Stewart admitted she had erred and signed
the SAMs agreement again, assuming her work would proceed as usual.
Indeed, Stewart maintained her routine legal practice well into the Bush
administration. She worked for the Sheikh, leftist political prisoners, a Mafia
don, and ordinary people of every political stripe. What she did not know was
that, following her press release for the Sheikh, the Justice Department had
obtained a secret warrant through the Foreign Intelligence Surveillance Act
[FISA] to monitor her prison visits with the Sheikh—and, it now appears,
much of her practice beyond this case.
FISA, contrary to its name, is not limited to scrutinizing foreign suspects.
Used thousands of times since its inception in 1978, a FISA warrant is granted
by one of seven judges, unknown and unaccountable to the public. Through it,
the government can wiretap, videotape, or gain physical entrance into the homes
and lives of U.S. citizens at any time. FISA and the SAMs have been operating
for years, little known and barely questioned—until the aftermath of
September 11, when mass arrests and detentions were seen as a
“safeguard,” the legalization of racial profiling became speakable,
and new legislation such as the PATRIOT Act made previous surveillance measures
seem almost benign by comparison. Yet, even in this atmosphere, Lynne Stewart
was unprepared for her own arrest.
On April 9, 2002, Attorney General John Ashcroft, while on a visit to New
York City’s Ground Zero, indicted Lynne Stewart for conspiracy and
materially aiding a terrorist organization. Charged with her were her Arabic
translator Mohammed Yousry and two supporters of the Sheikh, Ahmed Abdel Sattar
(now held in the United States without bail), and Yassir Al-Sirri (currently
free in England).
Civil libertarians and attorneys have been quick to decry Stewart’s
indictment as an assault on attorney-client privilege and possibly on the
First, Fourth, and Sixth Amendments of the Bill of Rights. With the U.S.
public’s post-September 11 unconcern for the erosion of individual
freedom, however, Stewart’s success in beating the charges appears
alarmingly uncertain. At age sixty-two, Stewart faces a possible forty years in
prison, while the Bush administration seeks a major victory in its war on
constitutional rights.
Having declared herself “emphatically not guilty,” Lynne Stewart
is now out of prison on $500,000 bail. I spoke to her in her office, less than
a mile from where the World Trade Center once stood.
Susie Day: Your client, Sheikh Abdel Rahman, is an Islamic
fundamentalist allied with a group that claims responsibility for scores of
deaths. Don’t you think his history and values repel a lot of people who
would otherwise support you?
Lynne Stewart: This fight is not about the Sheikh, let’s get
that clear. This fight is about America. About whether we want to change our
system of criminal justice to the extent that nobody—and probably high on
that list, the left in this country—can feel secure talking to a lawyer.
If you’re arrested now, there is no way you can be secure, because the
government has accorded itself the right to listen, to read, to overhear, to
watch. This is because of an accrual of power that the government has always
sought over dissidents in this country. That is why it’s important.
And the government gets, like Michael Jordan, an extra step, when
they’re dealing with people of Arab ancestry. Particularly people
who’ve been convicted—rightfully or wrongfully—of committing
terrorist acts. It’s important not just to focus on the Sheikh, but on how
the government uses the Sheikh as an excuse to broaden its powers. We also need
to organize people to understand that this is not about Middle Easterners, any
more than interning the Japanese [during the Second World War] was about the
Japanese.
SD: The indictment levels three basic charges against you:
disseminating prohibited information through your press release; distracting
the guards during a prison visit so that the Sheikh and Yousry could discuss,
in Arabic, Sattar’s letters concerning the cease-fire; and falsely
claiming that the prison was depriving Rahman of his diabetes insulin. Is that
right?
LS: Yes. Obviously, for their proof, they have to decide why and how
[the IG] has been designated a terrorist organization. There’s the whole
issue of constitutionality: by whose definition is a group designated
“terrorist”? By the executive branch in a way that comports with due
process? Especially when you’re using that to prosecute third persons such
as myself. Because without that, the case falls apart.
One of the things we can definitely say is that the case is full of
legalistic issues—issues not to be decided by a jury, that only the judge
will decide. For that reason, we’re probably going to first focus on the
purely legal issues. Do they make out a case? Is the law unconstitutional? Is
the law unfair? Is the law an intrusion on attorney/client relationships? Are
the things they’ve charged me with chargeable? Can they give us the
particulars as to how they can do that?
One of the most interesting questions is that they’ve definitely
wiretapped and surveilled the meetings in the jail. We’re not just talking
about telephones; we’re talking about attorney-client meetings in the
jail, which everybody always thought were sacred, absolutely confidential and
private. They have videotaped and supposedly bugged these meetings.
They did it under FISA to begin with, based on the earlier press release I
gave for the Sheikh, which may or may not be protected by the First Amendment.
Now, they don’t even have to go to a FISA judge, who is anonymous, to get
him to sign the Foreign Intelligence wiretap. Under the PATRIOT Act, only John
Ashcroft—the prosecution itself—has to sign. They don’t need any
third party whatsoever to authorize this kind of wiretap.
SD: When will your trial start?
LS: We’re thinking there won’t be any trial for probably at
least two years, while we go through these mountains and mountains of material
that they’ve amassed. We have to go through all this FISA wiretap
material, both on Sattar’s phone and on Yousry’s phone. Plus,
I’m sure there’s tons of [visual] surveillance.
They still have not answered us about whether my home phone was wiretapped.
We don’t know those answers yet.
SD: I heard on the news that the government has told you it is not
monitoring Sattar’s legal visits in prison. Is that true?
LS: No. They said he was not being listened to pursuant to the SAMs,
because the SAMs require that he be notified if he were listened to. This does
not mean that there is no FISA wiretap or regular, court-ordered wiretap. Taken
at face value, it means theynot listening to him on a SAMs tap.
At this point, because Sattar is in jail, the only way to meet with him is
in jail. As is common in all cases, particularly in political cases like this,
the defendants meet, sometimes endlessly, to decide what strategy works for
everybody, and tell each other what their thinking is, or remind each other how
things happened.
So we can’t meet. We’re not able to plan a strategy with our
lawyers. We can’t even sit down and say, “Hey, the indictment says
you did this with me. I don’t remember that. Did we or didn’t we do
that together?” We may not want the government to know the answer. It
makes it virtually impossible to construct a defense.
SD: Is it true that the government will not tell you if you and your
attorney, Michael Tigar, are being monitored?
LS: That’s correct. They will not divulge.
SD: How does this affect your defense preparations?
LS: Well, it puts a crimp, but those of us who are not incarcerated
at least have some alternatives. If we want to go to some small restaurant they
don’t know of, and choose it five minutes ahead of time, we can do that.
Whereas, Sattar has no choice, being in jail.
SD: Why do you think so many Americans have so little to say about
the increasing presence of the U.S. government in our lives?
LS: I think it goes back to…now, let me get the right
person…Erich Fromm, who wrote about the desire on the part of people, even
in democracies, to give up their rights to a father-figure who will protect
them. They’d abdicate whatever rights they had in order to feel safe, and
also righteous, of course. They’re not going to give up their rights to a
bad person—but as long as they’re convinced that person is
righteous—and, of course, who acts more righteous than John Ashcroft and
George Bush?
SD: What about Robert Mueller, now head of the FBI? In the late
1980s, he was the prosecutor when you were the defense attorney for the Ohio
Seven, a group of white, working-class activists who were charged with a series
of protest bombings.
LS: It is interesting that Mueller was our adversary in the Ohio
Seven sedition case. The government tried to assign [defense] lawyers from the
panel, which was made up of ex-U.S. attorneys. Ray Levasseur, and Pat
[Levasseur], and Jaan Laaman, and Richard Williams said, “No, we want our
own attorneys.”
They caused such a ruckus in the courtroom, Bill Kunstler got kicked in the
ankle by a marshal, and the entire community rose up to say, “You
can’t put these people on trial with lawyers they don’t want.”
It became such an issue for Mueller that he eventually had to agree not only to
give them their lawyers of choice, but also to pay those lawyers from
government funds.
So it did not come as a huge surprise to us that, following September 11,
two of the federal prisoners who were locked down in the worst way were Ray
Levasseur and Richard Williams. We all sort of grinned that it was Robert
Mueller—because, of course, he lost the sedition trial.
But the spillover from my case affects some of my federal clients,
particularly the ones I’m very close to. Richard Williams and I have done
three trials together. We write, we stay in touch; I send him crossword puzzles
every week from the New York Times. Out of all the political prisoners
in America who were locked down after September 11, he is the only one locked
down until February. Shortly after my indictment, I placed a call to him
through the legal department and he was locked down again. As far as I know
[October 2, 2002], he’s still in lockdown.
SD: It’s a little frightening that left-wing political prisoners
are conflated in the government’s eyes with right-wing Moslem
fundamentalists.
LS: I don’t think it’s quite fair to say right-wing,
because they are basically forces of national liberation. And I think that we,
as persons who are committed to the liberation of oppressed people, should
fasten on the need for self-determination, and allow people who are under the
heel of a corrupt and terrifying Egypt—where thousands of people are in
prison, and torture and executions are, according to Amnesty International and
Middle East Watch, commonplace—to do what they need to do to throw off
that oppression. To denigrate them as right-wing, I don’t think is proper.
My own sense is that, were the Islamists to be empowered, there would be
movements within their own countries, such as occurs in Iran, to liberate.
SD: What about the incident in Luxor, mentioned in your indictment,
in which sixty-two people were killed, supposedly to press for the
Sheikh’s release from prison?
LS: The government has consistently tried to make it appear that the
Sheikh called on his followers to avenge him, and this was his response. The
fact is, like all prisoners who are heroes of a particular movement, their
followers are going to invoke their name when they do certain acts and say,
“We believe Sheikh Omar should be freed.” But one cannot say that the
two are connected. The Sheikh has not even been in Egypt since 1989, and
certainly the statements say nothing like, “I don’t see enough
blood.” He has never—and certainly if he had, the government would
have spread it all over the indictment—exhorted anybody to go out in his
name and demand his freedom or make an attack on the jail or any other such
thing.
SD: Why don’t your supporters mention your three codefendants?
Is that because they’re more directly tied to violent acts?
LS: Not Yousry. He was the interpreter. And he’s a leftist, by
the way. He’s actually working on his dissertation at NYU. He’s a
teacher at York College, part of the CUNY.
Yousry was immediately terminated at the time he was arrested. He taught the
Middle East studies course. He is not a religious man at all. In fact, many
times he and I would have to smile because the Sheikh enjoyed meeting with us
more than anybody else, and yet we were the furthest from his own politics.
That’s not exactly true. Yousry is Egyptian. Yousry does believe
strongly in Egyptian liberation from Mubarak. But basically he’s an
interpreter—the only one approved by the government to do translation
during the entire time the Sheikh has been in jail. When they went to his
house, they seized his notes for his dissertation. They took everything he had.
Sattar is passionate about Egypt, cares very deeply about the Sheikh. He is
a fundamentalist Islamic man, married to an American who has chosen to be a
Moslem, as well. They have four terrific children. He worked at the Post
Office. I mean, he’s not exactly our image of the terrorist.
SD: Will they try all four of you together?
LS: No. The fellow from London, Al-Sirri, is not coming. I’m not
acquainted with him at all. The British said there was not enough evidence and
they refused to extradite him. The government will be forced to proceed with
just the three of us, unless there’s an appeal. That sort of vindicates
us, because we’ve been saying there’s not enough evidence, and
here’s an actual finding of that.
SD: What about how the press is handling your case? There was
something in the news about an affidavit describing how you and Sattar and
Yousry were sitting around during a prison visit with the Sheikh, having a good
laugh about how the USS Cole was bombed.
LS: The government must have felt somewhat beleaguered, so I believe
they leaked this document. Although there’s probably no way to prove it.
It was their primary document, laying out “evidence” of wrong-doing.
Amazingly, this affidavit—the search warrant for my office, for
Sattar’s house, and for Yousry’s house—was somehow or other
“discovered” by a leading reporter for Court TV. Notwithstanding that
it was supposed to be under seal. We’re actually all under seal. I
can’t talk about the content of this; I’m talking about this
extrinsically. Suffice it to say, it was out of context, and it was leaked by
the government, I believe, although they blame some poor clerk in the
magistrate’s office.
SD: I read some of this affidavit on the web [Court TV’s
<www.thesmokinggun.com>]. In it, the Sheikh was joking, “We’ll
stop using doves [communication agents] when the government stops using secret
evidence.” Can you talk about that?
LS: I really can’t, because we’re under this order.
I’m sure they would love nothing better than to have me break the
judge’s order, and drag me in, saying, “See what appeared in
Monthly Review?”
SD: Millions of people will pick up Monthly Review, for
a change—
LS: That’s a thought. Maybe it’s a ploy, you know—
SD: There you go, Monthly Review is working with the
government to boost—
LS:—to boost sales. [Laughter] But you see how easy it is, in a
serious situation, to interject comedy. And I think, in my experience, working
with political people, preparing cases, if there wasn’t a lot of laughter
going on at some of this stuff, we’d go crazy…
SD: Do you happen to know where the Sheikh is now?
LS: He’s at Florence in Colorado, it’s the most repressive
prison. The last time we saw him, he had severe problems stemming from his
diabetes. His legs were just enormous; his feet were caked and bleeding and
cracked.
SD: Let’s say you were part of a government that you actually
trusted and supported, and your country held political prisoners. At what point
would you think monitoring and controlling these people was acceptable?
LS: I’m such a strange amalgam of old-line things and new-line
things. I don’t have any problem with Mao or Stalin or the Vietnamese
leaders or certainly Fidel locking up people they see as dangerous. Because so
often, dissidence has been used by the greater powers to undermine a
people’s revolution. The CIA pays a thousand people and cuts them loose,
and they will undermine any revolution in the name of freedom of speech.
On the other hand, I do believe in a free marketplace of ideas. I have a big
problem with government repressing that kind of exchange… I must say, I
talk out of both sides of my mouth, but I have a sense that if I was the Queen
of the World, or Head of the Politburo, I would somehow have a meeting of the
minds to urge that we must protect but, on the other hand, we must open up.
That’s really what you would have hoped America had been. Now it seems
that the defense of imperialism is what guides foreign and domestic policy, and
that everything else is swept aside.
I was asked once when I spoke, what did I think the social compact was
between the American people and its government. I said, “To me, the social
compact is a six-pack and a television set.” As long as Americans have
that, they’re not too concerned. And that is a terrible tradeoff, a very
sad tradeoff.
SD: How has your arrest and indictment affected you personally, and
your husband, Ralph?
LS: You think that when you become an “enemy of the state,”
because you cannot live your life honestly and be anything else, they may, on
any occasion, round you up and take you off to the camps. But when it really
happens, the most profound effects are that I spend a lot more time than I
would like to dealing with the case. I would rather deal with my clients and
work on behalf of people and causes I’m interested in, but I’m
spending a lot of time with me—which does not make me happy.
The other thing is, it ruins your entire career, if your clients are dealt
with more harshly than other people’s clients. My associate, Susan
Tipograph, made a tremendous point when she said, “You represent criminal
defendants. The notion that the government may be going through their files is
anathema to your practice.” What happens if they find, in a note I wrote
on some client: “Reginald admits he did the murder but says he acted in
self-defense; however, I don’t think there’s enough evidence to prove
he even committed the murder….” So it has an effect on our business.
I guess another thing is, we all have a sense that it’s the caretakers
that suffer more, maybe, than the people they’re trying to take care of.
And I know my family loves me so much, and they all want to do something,
whatever they can do. By family, I don’t just mean Ralph or my children or
grandchildren, sisters and brothers; I mean all the people that are sort of my
adopted children. There’s a sense that they can’t really do much. All
they can do is be supportive and be there for me. But I see the toll it takes,
particularly on those closest to me. We’re all a little shorter of temper,
maybe, and more tired than we were before.
I worry that I’ve put a burden on people I love that I never wanted to
put on them. I shouldn’t say, “I put the burden,” because it
really is Amerika—with the “k,” as we used to say in the
sixties—that has placed this burden on them. It’s really
unforgivable.
SD: If you had two minutes with people on the street to tell them
about your case and why it may be important to them, what would you say?
LS: I would say that you never know what life will bring. It could be
that sometime in the future, you are, for some reason, focused on by the
government as being someone who is against government interest. You’re
going to need someone to defend you. I think everyone wants to feel that, when
they get someone they can trust, there is no intrusion from the government,
that your adversary knows your moves, your innermost secrets.
Basically, I think the government has an interest in deterring lawyers from
representing political people. They have an even greater interest, perhaps, in
deterring lawyers from representing Moslem defendants…. But I don’t
think it’s enough to say, “Oh, that’s Moslems.” Or
“that’s other people.” Or “that’s black people,”
or “Those were the Japanese.” You have to be able to say, “This
could happen to me. This could happen to someone I love. And I want lawyers to
fully represent people.”
I have also been told, “You shouldn’t do all these interviews,
Lynne, you’re crazy.” But I think, given the public perception of
what is going on, that secrecy is a terrible thing.
I have to confront them and say, “Listen. I did nothing wrong. I’m
a lawyer. I did what lawyers do.” There are a hundred lawyers who would do
exactly what I did. There are a million lawyers who would do almost exactly
what I did. Because this is the way you have to represent clients.
SUSIE DAY lives in New York City
where she writes a humor column for feminist and gay publications. She has also
written on U.S. political prinsoners and labor issues.
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