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The Surveillance and Indictment of Lynne Stewart (An Interview)

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 prisoners and labor issues.

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]. 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.

2002, Volume 54, Issue 06 (November)
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