The Lynne Stewart Conviction: Legal Steps to Fascism
When attorney Lynne Stewart was convicted last year on charges of aiding terrorism, the court acted out of fear, and the resulting implications for both Lynne and the legal system in which she worked so hard are indeed frightening. In charging Lynne, the government stretched her conversations with a reporter into serious, felony charges, even though not a single act of violence has ever resulted from her actions and there is no evidence of intent to cause any.
Despite this, she now faces 30 years in prison. And her conviction, as well as the legal maneuvers and restrictions that made it possible, threaten to restrict legal protection within the courts.
Lynne’s crime was violating “special administrative measures” she had signed by passing a press release from her client, Omar Abdel Rahman, on to a reporter. According to the SAM regulation (Special Administration Measures), many sanctions could have been imposed on Lynne short of a criminal charge including losing the right to meet with a client, a fine, or disbarment. Yet the government chose to put Lynne on trial for aiding and abetting terrorism.
Part of the work of the Lynne Stewart Defense Committee since the conviction is to show that Lynne Stewart is not a terrorist, does not condone terrorism and was arrested for doing her job. Just as important, the committee uses her case as a powerful demonstration of the dangerous and continued erosion of fundamental civil liberties for all Americans in a post-9/11 era dominated by fear and suspicion.
Attorney Client Confidentiality
The U.S. system of justice is built around the idea that if both “sides” in a courtroom tenaciously advocate for their position, then a judge or jury can sift through the disparate versions of the facts presented and make a fair decision about whose version is correct. Defense attorneys must zealously represent their clients, and that historically includes the right to private conversation. In Lynne’s case, the government eavesdropped on her conversations and restricted her access to her client.
Lynne’s conviction is one of the first steps towards dismantling this system. Especially at risk are unpopular defendants and those organizing against harmful government policies. If you were a successful and skilled defense attorney would you put your career and personal freedom on the line in order to zealously defend your client? Knowing Lynne Stewart, your colleague, is in prison for her zealous defense of a client in a similar situation might well impact how vigorously and forcefully you felt you could defend your client without possibly being prosecuted and jailed.
Since the Bush administration took power, we have seen an exponential growth in government secrecy, as seen in measures like the Bureau of Prisons (BOP) regulations, which permit attorney-client communications to be monitored where “reasonable suspicion exists to believe that a particular inmate may use communications with attorneys or their agents to further or facilitate acts of terrorism.” Former Attorney General John Ashcroft amended restrictive Special Administrative Measures to allow for video and audio surveillance of attorneys’ communications with people in federal custody. This amendment occurred secretly, without receiving a public hearing. If we are not aware of policy changes, we cannot fight them.
Secrecy in the United States government is not new. During World War I the government infringed on civil liberties by rounding up and detaining socialists, pacifists, Germans and other “suspect” groups, controlling mail, issuing a newspaper censorship code, disseminating propaganda and recruiting private citizens to act as spies. And more recently during the 1950s, 60s and 70s with COINTELPRO, the FBI and police spied on activists, particularly targeting Black and antiwar activists, which set the stage for today’s unprecedented attack on our rights.
The PATRIOT Act
How does the USA PATRIOT Act affect individuals engaged in political resistance in the U.S.? One way is through National Security Letters (NSLs). As Congress debated whether to reform or renew the PATRIOT Act, news reports revealed that 30,000 NSLs are issued by the government per year.
Rather than issue a subpoena the FBI can issue a National Security Letter without the review of a judge or magistrate. The NSL also prohibits the recipient from disclosing to any person that the FBI has sought or obtained access to information or records.
There is one constitutionally implied exception to this secrecy requirement. The recipient of an NSL letter has a right to contact his or her attorney for advice on how to proceed. On September 29, 2004, U.S. District Court Judge Victor Merrero declared the use of such letters unconstitutional and barred their use by the FBI. However, he delayed the injunction for 90 days to allow for appeal. It will take several years for an appellate court to decide whether the FBI has the authority to demand documents and information pursuant to an NSL.
The “Sneak and Peek” searches authorized by the PATRIOT Act violate the Fourth Amendment requirement that the government must get a warrant from a judicial magistrate and give notice to conduct a search. “Sneak and Peek” searches occur when the government is able to covertly enter, search, observe, and copy documents or computer files without leaving any indication that a search had occurred. Activists are directly affected because with very little justification the government can secretly listen, search, and violate the privacy rights of law-abiding people engaged in political action or organizations critical of the government.
While unrestricted spying on American citizens by the government is frightening enough, it could be argued that the PATRIOT Act’s most devastating impact is on immigrant communities in the U.S. Without the protections of U.S. citizenship, people are detained on secret evidence, deported and sent to secret jails anywhere in the world.
Today activists can be sure of one thing: we are being spied on. Recent reports have revealed that the National Security Agency conducts warrantless spying on Americans.
Bush authorized this surveillance to circumvent the Foreign Intelligence Surveillance Act (FISA). Congress enacted FISA in 1978 in response to wire tap abuses by the Nixon administration, which it used against its domestic opponents under the guise of conducting counterintelligence investigations.
Today, at the direction of the NSA, the FBI has amassed intelligence files on countless individuals and groups. The Pentagon has spied on peace groups and protest activities under the “TALON” program initiated in 2003 by former Deputy Secretary of Defense Paul Wolfowitz to track possible terrorist groups and individuals. With the cooperation of local police agencies, the government has attempted to criminalize dissent, setting up and framing political activists protesting U.S. policies.
When hundreds of people attending peaceful antiwar protests in New York City during the 2004 Republican National Convention were arrested, discovery obtained by their attorneys revealed police infiltration and lies as a basis for many of these arrests. Organizations such as the Center for Constitutional Rights and the American Civil Liberties Union have filed lawsuits demanding information on the illegal spying. In addition the National Lawyers Guild, the American Arab Anti-Discrimination Committee, Greenpeace, the American Indian Movement, Catholic Peace Ministries and others have filed Freedom of Information letters.
The lawyers who file these lawsuits, who defend activists after arrests and then visit them in jails, prisons and detention centers to protect them must be allowed to do their job free from the chilling effect of secret monitoring and the threat of arrest and imprisonment themselves. That is why the case of Lynne Stewart continues to be deeply connected to the broader struggle for justice and the larger movement for social change.
The collective strength of the people must create deep fear in the Bush administration for it to go to such lengths to stop U.S. from our lawful pursuits˜something we must remember and seek strength from when we feel intimidated.
Pat Levasseur is the director of the Lynne Stewart Defense Committee, which received a grant from Resist last year. For more information, contact: LSDC, 350 Broadway, Suite 700, New York, NY 10013; www.lynnestewart.org
At the time of this writing Lynne Stewart has not been sentenced. Her attorneys are considering filing motions relating to the NSA spying and an appeal of the conviction will be filed following her sentencing.