URL: http://www.slate.com/id/2113446/
Posted Monday, Feb. 14, 2005, at 2:04 PM PT
Slate
jurisprudence The law, lawyers, and the court.
Radical Sheik
An elegy for radical lawyering.
By David Feige
In a spacious courtroom on Foley Square, in downtown Manhattan, a jury
just did an unfortunate thing. It convicted Lynne Stewart, a radical
lawyer, of charges that she aided and abetted terrorists.
I know Lynne Stewart--I saw her many times in the well-worn hallways
of Bronx Supreme Court, arguing cases on behalf of poor, mostly
unknown clients. She had an impressive bearing, burnished by her years
of defending radicals and the occasional mobster. Stewart was a
compelling combination of warm and fierce--a woman possessed of both
great compassion and real principle.
Her troubles began over a dozen years ago when she undertook the
representation of Sheik Omar Abdel Rahman, the blind cleric convicted
in connection with the 1993 bombing of the World Trade Center. The
sheik, convicted of conspiracy in 1995 along with nine other people,
was eventually sentenced to life and imprisoned in a
solitary-confinement cell in Minnesota. He was also subjected to
highly restrictive "special administrative measures"--designed by the
government to silence those whose views or knowledge or influence it
considers dangerous.
Despite his conviction, Ms. Stewart continued to advocate for the
sheik. But in order to meet with him in prison, she had to sign an
agreement abiding by the terms of those SAMs--among them a prohibition
against presenting the sheik's views in public. Stewart needed to see
her client. She signed the forms.
The problem was that at some point in her representation, Stewart
decided that the only way to ameliorate the sheik's sentence and the
terms of his confinement was to keep his case in the public eye in the
hopes that he'd be allowed to serve out his sentence in Egypt. Stewart
faced a difficult situation--the right thing for her client was
something the government had made her promise not to do. But in
Stewart's mind, the client came first. She called the press.
As a result of that call, Ms. Stewart was herself indicted and charged
with lying to the government (for violating the conditions of the
SAMs) and with providing material aid to terrorism. Essentially, her
decision to advocate for the sheik by talking to the press in order to
keep his case in the spotlight was what was on trial. According to the
government, by making those statements Stewart herself became part of
a terrorist conspiracy.
Imagine spending six months of your life sitting in a courtroom, on
trial for what amounts to your life (Ms. Stewart, already 65 years old
and a grandmother, now faces spending the rest of her life in prison).
It's the kind of experience that, win or lose, makes you never, ever
want to mess with the government again. And that is both the point and
the problem: Her indictment alone had had a chilling effect on defense
attorneys, and the conviction may well mean the government gets what
it really wants--a docile defense bar that refuses to touch terrorism
cases for fear of themselves becoming targets.
Her trial was a monster--six months and nearly 90,000 tape-recorded
calls to home phones and cell phones around the world, all culled and
analyzed for hints of Stewart's complicity. The tapes didn't really
show much. After all, the government couldn't show that anything bad
had happened as a result of the press conference, nor could they link
Stewart to any global ring of terrorists or act of terror. But
unfortunately for Stewart, the government had more than just the phone
calls--it had fear. During the course of the trial, prosecutors played
a pre-9/11 videotape in which Osama Bin Laden threatens to attack the
United States as a means of winning the sheik's release from prison.
This, despite the fact that--as the judge pointed out--Bin Laden was
never a part of the case against Ms. Stewart.
Still, the "fear card" had been dealt, both in jury selection, by
picking an anonymous (and thus terrified) jury, and then built upon in
the invocation of Bin Laden and Sept. 11. That, along with what, on
its face, seems a clear violation of the SAMs was enough to persuade
the jury to convict Ms. Stewart on all the charges against her. And
that's a tragedy for all of us.
Make no mistake about it--the Stewart trial was just a small battle in
a larger culture war. At issue is our tolerance for radical dissent,
and at stake is the traditional role of the defense lawyer as zealous
advocate and anointed spokesman for the interests of the prosecuted.
By allowing the government to transubstantiate client access into that
lawyer's own silence, the jury has dealt a blow to radical points of
view everywhere. The list of people the government has considered
seditious and dangerous over the years is long and frightening in its
breadth. By validating the use of SAMs to silence lawyers, the jury
has effectively silenced a whole class of inmates that the government
alone gets to define. And in an age in which that same government
argues to the Supreme Court for the power to detain suspects without
charges and institutes policies designed to better leverage lax
torture standards in other countries, the squelching of dissent--and,
more perniciously, the squelching of those who represent
dissenters--is a dangerous and unsettling precedent.
What the Stewart jury effectively did was to criminalize radical
lawyering. And while that may be a great victory for the government in
its fight against radicalism and the lure of terrorist ideas, our
nation has always thrived on the notion that nothing defeats evil and
seditious ideas quite like better ideas--that open and engaged debate
and public denunciations of evil are always better than a government
that dictates which ideas are acceptable and which will be silenced.
There aren't a lot of people willing to forgo the easy riches that
come with a law degree to do the tough and unpopular work of defending
indigent, reviled clients. And there are even fewer who are both good
at it and passionate about it. Lynne Stewart was of those few. She'd
take any case--the tougher the better, and unlike so many others, she
never did it for the money and she always did it well. And while the
30 years she spent in the trenches made her great in the eyes of the
poor and the despised, and an inspiration to young lawyers getting
their first taste of the bitter dish the government serves up to those
it prosecutes, it also made her a perfect target for a bully
government looking to re-draw the lines of appropriate advocacy.
Lynne Stewart's conviction sends the strong message that, where
terrorism is concerned, our citizens may no longer accept the vigorous
defense of unpopular people. Unfortunately, it means something else,
too--that the terror about terrorism has yet to give way to
rationality. Merely flaunting pictures of Osama Bin Laden may be
enough to justify any policy or convict any defendant. But as Lynne
herself might have said, as scary as Osama Bin Laden might be, the
only greater terror than terrorism is a society that abandons the
principles that protect us all.
David Feige, a public defender in the Bronx and a Soros Media Justice
Fellow, is the author of the book _Indefensible_, to be published in
2005.