Counter-intelligent: the surveillance and indictment of Lynne Stewart

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-Sin (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 II 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 Rabman 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.