Free Lynne Stewart

From the US Constitution, Bill of Rights (emphasis added)

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

This is not exactly straightforward. What Lynne Stewart did is hard to understand, and does not seem necessary to the defense of her client. She technically broke an administrative rule of the Federal Bureau of Prisons. So it’s hard to put a noble gloss of purpose on her actions.

Yet, I don’t think that’s the point.

Lynne Stewart, a civil right attorney, was convicted of providing material support for terrorism by assisting her client, Egyptian Sheik Omar Abdel Rahman (the “Blind Sheik”), now serving a life sentence for conspiring to commit acts of terrorism in New York City in the months after the 1993 World Trade Center bombings. Stewart continues to insist on her client’s innocence of the charges against him and was in the process of assisting with an appeal. And she now insists that she has done nothing wrong either.

The basis for the government’s claim against her was that, five years ago, Stewart gave a press release to Reuters from her client stating that he no longer favored a cease-fire between The Islamic Group and the Egyptian government. The problem is that Stewart had been required, in order to gain access to her client, to agree to a Special Administrative Measure (SAM) issued by the Federal Bureau of Prisons denying her the ability to communicate with the outside world on behalf of her client. The penalty, as she understood, was to potentially be denied any additional access to her client.

There are many constitutional, legal and moral issues raised by this case. So let us calmly try to evaluate them.

Firstly, however, we need to address the elephant in the room – terrorism. Stewart’s client was convicted of planning a terrorist attack in the US. And in a legal environment in which mere suspicion of terrorism is sufficient for indefinite detention, an actual conviction practically makes someone equivalent to Osama bin Laden. I know nothing about Rahman, so for the purposes of this discussion, we’ll assume he was guilty as charged. Many people think that this alone should render someone completely without rights. So much of the wrangling over the treatment of the “detainees” in Guantanamo or the provisions in the USA Patriot Act come down to this gut level reaction – terrorists don’t respect our rights, why should we respect theirs.

For all intents and purposes, in the courtroom, Stewart might as well have been bin Laden’s attorney. And much of the predicament she is in is a result of having stepped up to represent a convicted terrorist.

Buried in the government’s charge that breaking the SAM constituted assisting terrorism is the idea that by announcing Rahman’s opinion on the cease-fire publicly, it was tantamount to passing along an order. Implicit is the idea that those Islamic types are all a little dangerous and that they blindly follow their religious leaders. Had Stewart passed along actual plans for a terrorist attack, delivered an order for an attack, or even given a message directly to The Islamic Group instead of a news agency, it would be a different matter.

The Islamic Group never broke the cease-fire. No harm ever came to anyone as a result of Stewart’s actions, and the prosecutors in Stewart’s case did not attempt to show that any had.

As a matter of practicality, I will note in passing that in terms of security, the abusive practices at Guantanamo and Abu Ghraib and the provisions of the USA Patriot Act have been a wash-out. Oh, sure, there might be “secret” successes. But so far there have been no after-the-fact showings of demonstrable benefit. This is not entirely academic, as President Bush is wanting to extend the provisions of the Patriot Act scheduled to expire at the end of this year. I say this because if there were good reason to suppose suspending civil rights in some cases actually made us safer, it would be necessary to deal with that set of issues. Fortunately, we can move right along.

The need to respect the rights of accused or even convicted terrorists is demonstrated partly by Stewart’s own case. Please note, Stewart was not accused of planning a terrorist attack. Instead, the government argued that in breaking the administrative rule she had also broken the federal statute prohibiting “material” support for terrorism. (This is even though, as noted, there was no showing of any actual material benefit to any terrorist or terrorist group.) Yet the urge to see her punished among some is already quite strong.

Lynn Stewart should be kept in a little bamboo cage and paraded around the country for the rest of her days and loyal Americans can be invited to spit, urinate, and vomit on her.

And the reason that the death penalty is NOT applied in this case is.....................???

Cook this bitch on a slow roaster

Admittedly, I cherry picked some of the most extreme and irresponsible comments. Yet these only form a point along a continuum of harsh judgments, particularly from the Right. In an atmosphere of lock-them-all-up-ask-questions-later, a fair trial is hard to come by. The prosecution in Stewart’s case evoked the specter of Osama bin Laden, not because there was any connection to the case or Stewart, just to stoke the jury’s fears. And it is when these fears are heightened that niceties such as the bill of rights start to seem like unaffordable luxuries – as in, the constitution is not a suicide pact. This means that we move to limit the ability of the accused to defend themselves or exercise their rights at precisely the same time that we are rushing to judgment. The curtailment of rights is predicated on the presumption of guilt. The demonstration of innocence is predicated on the exercise of rights.

The quality of liberty is not measured by how well we defend the rights of those most like us, but by how well we defend the rights of those we most despise. Either we believe in the principles of justice in the Constitution or we don’t. The perpetrator of the most heinous crime you can imagine deserves a fair trial in accordance with our cherished values – not because they deserve it, but because we believe in it. Liberty cannot be conditional. There cannot be a sliding scale of principles based on the assessed worthiness of the individual. America is at its greatest when we stand by our principles no matter what.

By eavesdropping on Stewart’s conversation with her client, foreign national and convicted terrorist though he may be, the government violated the principles in the constitution. Listening in on an attorney-client conversation forces the accused to choose between their fifth and sixth amendment rights. If they opt for the sixth amendment, the right to counsel, they abandon the fifth, the right to not self incriminate. If they opt for the fifth, they must forego the sixth. The entire practice is unconstitutional and an anathema to our system of justice.

By forcing Stewart to agree to the SAM, they denied Rahman his sixth amendment rights. (Yes, yes, he’s not a US citizen. But he was tried by US courts, is being held in a US prison and was preparing for an appeal in the US. Like I said, either we believe that this stuff is right in itself or we don’t.) Even though it’s hard to imagine what possible purpose Stewart’s specific action might have served in Rahman’s defense, it is not hard to imagine that an attorney might need to communicate with the outside world on behalf of her client in the course of mounting a defense. What good does it do to offer someone the right to counsel and then put so many restrictions on them that they cannot do their job? The SAM, too, is clearly unconstitutional.

Both of these measures could be challenged in the courts. (Although the Bush administration is doing all they can to limit judicial review of their actions. You know, those “activist” judges are always causing trouble.) I would be surprised if there weren’t already actions moving forward. Yet requiring people to prove that their rights should not be violated is completely wrong. The presumption should be for the integrity of our constitutional rights. If the government can show legitimate cause for suspending rights (and I agree that there may be such times), they should seek the minimum infringement possible and only to the extent that is absolutely necessary. They should have to be able to demonstrate why such infringements were necessary.

These measures are part of a broader approach by the Bush administration to dealing with “security” matters, broadly defined. As embodied in the contemptible USA Patriot Act, they cast a large net, scooping up far more than their intended targets, based on the justification that they might also catch a terrorist. The fact that they routinely push to be exempt from judicial review should be sufficient to tell us that they’ve gone too far. They want to be able to sneak into our homes without our knowledge and with no legal recourse and that we should just trust that there is some legitimate purpose and that the authority would never be abused. It is hard to imagine a practice more at odds with the constitution and the bill of rights.

In the case of the eavesdropping, the government did not have specific reasons to listen to specific conversations. It is a blanket rule. The SAM was not imposed for any specific person for any specific prisoner. Again it was a blanket rule. They cast a broad net hoping that they might catch a terrorist. Might is simply not sufficient for subverting the constitution.

This raises an important moral question. There are many who would argue that if it prevented a 9-11 type attack than the government should be able to do whatever it wants. It’s a specious argument. Firstly, “safer” is a slippery slope. No matter how safe you are, you can always be safer. If everyone in the whole country were just locked up and we turned the entire nation into a prison, we’d be safer still. The government’s actions need to meet the requirements of reasonableness and necessity. And there must be some independent oversight. There must be some check on authority – especially when we are talking about any curtailments of rights. Secondly, the very nature of the wide net approach means that innocent people will be caught too. This raises, not lowers, the necessity of maintain the presumption of innocence. And the presumption of innocence requires that we afford people the full compliment of rights in order to defend themselves. This is, again, all the more important in a climate of hostility and fear.

If there were any credible reason to suppose that Stewart had in fact provided material support to terrorists, I would be telling a different story. Showing that some actual harm resulted from her actions is not irrelevant to the case. But what happened was that the government found that Stewart had violated an administrative rule and accused her of assisting terrorism. The jury found that she had indeed violated the rule and convicted her of terrorism.

Terrorism is a serious matter. Charges of terrorism or assisting terrorism are serious charges. They are not to be made lightly or capriciously. And when they are made, we owe it to ourselves to take equally seriously our system of justice. Imperfect though it may be – it can work pretty darn well when we adhere to it.

We aren’t in this case. And the reason for this is not to serve our legitimate security needs. There are other needs being served here.

Conservative gadfly David Horowitz, has opportunistically used this case to declare that the Left itself is on trial.

Radical attorney Lynne Stewart is a progressive icon. … It would be fair to say that the left itself is on trial in the Stewart case…. And that’s precisely the problem, for Lynne Stewart, … and for the left (she) represent(s). The left is now in full attack mode against its own democratic government in a time of war. It identifies as victims and even “liberators” the Islamic terrorists who want to destroy us. Michael Moore has said it in so many words: “The Iraqis who have risen up against the occupation are not ‘insurgents’ or ‘terrorists’ or ‘The Enemy.’ They are the REVOLUTION, the Minutemen, and their numbers will grow -- and they will win. Get it, Mr. Bush?” And, on the leftwing website, CommonDreams.org, former SDS radical and Democratic California Senator Tom Hayden has even laid out a plan to defeat his own country: “The anti-war movement can force the Bush administration to leave Iraq by denying it the funding, troops, and alliances necessary to its strategy for dominance.”
This is no longer a loyal opposition. It is no longer the voice of a progressive future that previously would have opposed the misogyny, thuggery and even depravity of regimes like Saddam Hussein’s or movements like Sheik Omar Abdel Rahman’s Islamic Group. Whatever the outcome of the Stewart trial, the larger trial of the left she represents – a trial that will one day pronounce a verdict on its loyalties and its integrity -- will go on.

Horowitz is right in one respect. Stewart is on trial to play out a drama much larger than her own actions and for which she bears no responsibility. But he’s wrong in two respects. I had never heard of Stewart before her conviction. So much for icon status. And the Left isn’t on trial here, we all are.