Of course, I know nothing about the law, but neither do juries, including the jury in the Lynne Stewart case! And it is juries -- lay persons -- that need to be convinced if judges do not dismiss charges. The prosecution's strategy was not so much legal as terrorist, i.e.,terrorizing the jury that not convicting Stewart, Mohammed Yousry, and Ahmed Sattar would be dangerous because Sheik Omar Abdel Rahman's words, as well as his "followers," are extremely dangerous.
<blockquote>Vowing to appeal, Stewart blamed the verdict on inflammatory evidence that included videotape of Osama bin Laden urging support for the jailed Abdel-Rahman, who prosecutors said communicated with the outside world with Stewart's help.
"When you put Osama bin Laden in a courtroom and ask the jury to ignore it, you're asking a lot," she said.
(Larry Neumeister/Associated Press, "Verdict in Lynne Stewart Case Shakes Legal Community," <em>Newsday</em> February 11, 2005)</blockquote>
Why the prosecution was allowed to introduce such "evidence," for instance, is legally mysterious but politically transparent.
Judge John Koeltl dismissed the charges in the original indictment that Stewart, Yousry, and Sattar conspired to provide material support to the Islamic Group, on the grounds that they were unconstitutionally void for vagueness and revealed "a lack of prosecutorial standards" (Justice for Lynne Stewart! <http://www.lynnestewart.org/2003Newsletter.pdf>, Winter 2003):
<blockquote>In July, Judge Koeltl found unconstitutionally vague charges that Stewart assisted Islamic Group by providing communications equipment and "personnel." The "personnel" were the three defendants, which Koeltl said she could not have known. Those charges were dismissed on the ground that the statute, 18 U.S.C. 2339(B), was unconstitutionally vague as applied.
The government responded with a superseding indictment under a different section, 18 U.S.C. 2339(A), based on exactly the same acts.
Stewart was again accused of conspiring to provide material support and providing material support to Islamic Group. She was again accused of providing "personnel" to the outlaw group. This time, the sheikh himself was the "personnel."
In the new indictment, Sattar was not charged with providing material support. He was, however, charged with conspiracy to kill and kidnap persons in a foreign country.
That charge is key to the reconfigured accusations against Stewart because of the differences between the two statutes.
The one being used now, § 2339(A), was passed in 1994 after the 1993 bombing of the World Trade Center. It defines a violation as giving material support to anyone while intending or knowing that the support will be used in connection with any one of a list of violent crimes. The violent crime alleged to have been furthered by Stewart's support is one that Sattar is alleged to have been planning.
The first indictment was under a law passed in 1996 aimed at making it easier to obtain a conviction. That law, § 2339(B), does not require intent. It requires only that the defendant give aid or support to a group that has been designated as a terrorist organization by the secretary of state.
"It was intentionally drafted so there is no defense along the lines of 'I gave money to Hamas, but I didn't want them to use the money for guns, I wanted them to use the money for an orphanage,'" said professor Robert M. Chesney of Wake Forest University Law School. "Congress wrote the statute with the idea that these organizations are so tainted by political acts of violence against civilians that any act that boosts the organization is harmful."
The statute the government is now using against Stewart is "a more narrow crime, a more difficult crime to prove," Chesney said.
"The new charges against Ms. Stewart will be harder to prove," he said. "It's a traditional conspiracy or aiding and abetting case."
For Tigar, the new charges still fail for vagueness and overbreadth.
THE JUDGE'S ATTITUDE
But as he continued to press this argument on Friday, Judge Koeltl seemed to agree with the government that the addition of the element of knowledge of the outcome may spare the government the problem of vagueness that doomed the material support charges last year.
The judge focused on the "much higher specific intent" required by § 2339(A). He disagreed when Tigar framed the charges under that section as requiring little more than "the knowledge of the existence of a conspiracy."
"No, it is not simply knowledge of a conspiracy to kill," the judge said. "It is knowing that resources are to be used in carrying out specific violations -- and under (2339)B, all you have to do is knowingly provide something."
(Mark Hamblett, "Defense: Sheikh's Lawyer Lacked Notice Her Actions Violated the Law," _New York Law Journal_, <http://www.law.com/jsp/article.jsp?id=1081348872998>, April 12, 2004)</blockquote>
>From a lay person's point of view, Michael Tigar's motion to dismiss
the superceding indictment (at
<http://www.lynnestewart.org/StewartMtnDismissMemoSupport.pdf>)
sounds excellent, and the charges should have been dismissed, but
evidently the judge, seeing a fine distinction that escapes an
inexpert eye, didn't think so. :-|
>Tigar is not trying the earlier case agaisnt the Sheik. He is not
>mking Stewart's defense (now appeal) rest on the hopeless(from a
>legal point of view) proposition that the Sheik is innocent of the
>charges of which he was convicted. That would be perilously close to
>malpractice. As you infact observe, it si a confusion to run
>together the Sheik's earlier (pre 1993) conspiring to blwo up
>variosu buiding and kill people with his more recent statements
>about the cease fire.
>
>The relevant speech of the Sheik is the postconviction speach that
>Stewart reported to the press in violation of the gag order. That is
>speech which, whether or not it is protected, is not the basis of
>crominal chages, much leess a conviction, of the Sheik. So Tigar is
>arguing, quite naturally, that when Stewart broke the gag order she
>was not offering material aid to terrorism because these speech she
>reported was not an incitement to immanent lawless activity.
>
>To put is another way, not all speech by someone who is convicted
>for uttering uprotected incitement, soliciattion, and conspiratorial
>statements falls in that category
I completely agree with you, and my intention was not to argue against the points you are making above, but as long as the prosecution succeeds in persuading the jury to believe that the sheik's words are _always dangerous no matter what_, the points get lost on the jury.
>Again, though, the focus is in Stewart. Don't defend the Sheik.
>Defend his right to due process, which he got. To representation --
>and to represenation withour criminal prosecution of his lawyers.
>We do not, DO NOT, want to suggest that this guy is a champion of
>the left. He's )on your story) an antisemitic theocrtativ
>reactionary who advocates mass murder (abstractly). According to the
>jury, he's guilty of conspiracy to commit murder and terrorist acts.
>He si not oir friend. Stewart si our friend. Stick to essentials.
I am not at all suggesting that Rahman is "a champion of the left." He is NOT a leftist, and NEITHER is he a friend of the left. However, the precedent concerning "seditious conspiracy" set by his prosecution and conviction can very well be used against leftists. All the government has to do is to identify leftists (perhaps leftists who think like Ward Churchill and are even more reckless with words than him) who find themselves in social milieus (not even organizations, strictly speaking) that include persons who are linked to terrorism (whose definition can be very elastic in the government's hands, far more elastic than in the Rahman case) unbeknownst to the leftists, have informers and provocateurs infiltrate the milieus, seek to entrap the leftists into SAYING (rather than DOING) things that can be grounds for prosecution, indict them anyhow _even if they don't actually quite say them_, and persuade the jury to _interpret their words as the prosecution interprets them_. -- Yoshie
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