[Ppnews] Lynn Stewart - Casualty of the War on Terror

[Political Prisoner News]

http://www.counterpunch.org/
November 25, 2009


Casualty of the War on Terror


The Case of Lynn Stewart

By MARJORIE COHN
<http://jurist.law.pitt.edu/>The Jurist

In a decision that reflects the post-911 
terrorism hysteria, a three-judge panel of the 
Second Circuit Court of Appeals has affirmed 
prominent civil rights attorney Lynne Stewart’s 
convictions and remanded her case to district 
court Judge John G. Koeltl to reconsider her 
sentence. The appellate panel directed Koeltl to 
remand Stewart to custody and the 70-year-old woman is now in prison.

Stewart was convicted of conspiracy to provide 
and conceal material support to the conspiracy to 
murder persons in a foreign country (18 U.S.C. 
sec. 2339A and 18 U.S.C. sec. 2), conspiring to 
provide and conceal such support (18 U.S.C. sec. 
371), and knowingly and willfully making false 
statements (18 U.S.C. sec. 1001). The majority 
opinion states that Stewart was convicted 
“principally with respect to [her] violations of 
those measures by which [she] had agreed to 
abide,” namely, Special Administrative Measures (SAMs).

The SAMs were placed on Stewart’s client, Sheikh 
Omar Ahmad Ali Abdel Rahman, who is serving a 
life sentence for terrorism-related crimes. They 
restrict his ability to communicate with persons 
outside of the prison. Stewart and Abdel Rahman’s 
other attorneys, Ramsey Clark and Abdeen Jabara, 
signed statements saying they wouldn’t forward 
mail from Abdel Rahman to a third person or use 
their communications with Abdel Rahman to pass 
messages between him and third persons, including 
the media. Stewart violated her agreement to 
abide by the SAMs. Clark and Jabara allegedly did 
as well. Lawyers who violate SAMs expect to 
suffer administrative consequences, such as being 
denied visiting privileges. Yet Stewart was 
indicted for federal crimes. Clark and Jabara were not.

Judge Koeltl presided over the nine-month trial. 
Stewart was precluded from arguing that a 
prosecution for conspiring to commit a conspiracy 
(an inchoate offense) raises serious dangers. 
Koeltl sentenced Stewart to 28 months. The 
maximum sentence under the federal sentencing 
Guidelines is 30 years but the Supreme Court held 
in United States v. Booker, 543 U.S. 220 (2005) 
that the guidelines are advisory, not mandatory.

Koeltl concluded that the terrorism enhancement, 
“while correct under the guidelines, would result 
in an unreasonable result.” He cited “the 
somewhat atypical nature of Stewart’s case” and 
“the lack of evidence that any victim was harmed 
as a result of the charged offense.” The result 
of the terrorism enhancement, according to 
Koeltl, was “dramatically unreasonable in [her] 
case” because it “overstate[d] the seriousness of 
[her] past conduct and the likelihood that [she would] repeat the offense.”

Stewart, Koeltl concluded, “has no criminal 
history and yet is placed in the highest criminal 
history category [under the terrorism 
enhancement] equal to that of repeat felony 
offenders for the most serious offenses including 
murder and drug trafficking.” Koeltl found that 
Stewart’s opportunity to repeat “the crimes to 
which she had been convicted will be nil” because 
she “will lose her license to practice law” 
[“itself a punishment”] and “will be forever 
separated from any contact with Sheikh Omar Abdel Rahman.”

Koeltl viewed Stewart’s personal characteristics 
as “extraordinary” and determined that they 
“argue[d] strongly in favor of a substantial 
downward variance” from the guidelines. He 
described her as a dedicated public servant who 
had, throughout her career, “represented the 
poor, the disadvantaged and the unpopular, often 
as a Court-appointed attorney,” thereby providing 
a “service not only to her clients but to the nation.”

Koeltl also considered that Stewart had suffered 
from cancer – undergoing surgery and radiation 
therapy – and found a significant chance of 
recurrence. At age 67, Koeltl observed, prison 
would be “particularly difficult” for Stewart.

Although the appellate majority stated that the 
district court judge is “in the best position to 
make an individual determination about the 
‘history and characteristics’ of a particular 
defendant, and to adjust the individualized 
sentence accordingly,” the panel second-guessed 
Koeltl by ordering that he reconsider Stewart’s 
sentence. Specifically, the panel directed Koeltl 
to consider whether Stewart committed perjury at 
trial by testifying “that she understood that 
there was a bubble built into the SAMs whereby 
the attorneys could issue press releases 
containing Abdel Rahman’s statements as part of 
their representation of him.” The panel also 
directed Koeltl to consider Stewart’s possibly 
perjured testimony about “her purported lack of 
knowledge” of Taha, a leader of the Islamic 
Group, who had solicited a statement from Abdel 
Rahman opposing the continuation of a ceasefire 
between the Islamic Group and Egyptian President Hosni Mubarak’s government.

In fact, Koeltl noted there was “evidence to 
indicate that [Stewart’s] statements were false 
statements.” But he concluded it was “unnecessary 
to reach [the question] whether the defendant 
knowingly gave false testimony with the intent to 
obstruct the proceedings” because (1) the 
Guidelines calculation already provided for the 
statutory maximum, and (2) a non-Guidelines 
sentence was, in Koeltl’s estimation, “reasonable 
and most consistent with the factors set forth in 
Section 3553(a).” Thus, Koeltl did consider 
whether Stewart committed perjury in his initial 
sentencing decision. Michael Tigar, Stewart’s 
trial counsel, told me he is “convinced that 
there is ample independent corroboration for Lynne’s version of events.”

Judge Calabresi, who joined the majority panel 
decision, noted in his separate opinion that 
Koeltl was “a judge of extraordinary ability 
[with] a well-earned reputation for exceptional 
judgment.” Calabresi wrote that “for us – who 
have not been involved in the case and do not 
know all the backs and forths, . . . to second 
guess the district court’s judgment seems to me 
be precisely what both the Supreme Court and our 
court sitting en banc . . . have said we should not do.”

According to Tigar, Koeltl’s sentence decision 
was “well-argued.” Tigar said, “For any court of 
appeals judge to write in a hostile vein about 
[Koeltl’s] decision is an arrogation to the 
appellate court of a power that the rules of 
procedure and long legal tradition vest in trial 
judges. In addition,” he added, “the sentence 
reflected the reality of this case, a reality 
that seems to have escaped the court of appeals panel.”

Calabresi thought it “not . . . entirely 
irrelevant” that Stewart was the only lawyer 
criminally charged even though two others also 
violated the SAMs. Noting that “while 
prosecutorial discretion may be salutary in a 
wide variety of cases,” Calabresi wrote, “when 
left entirely without any controls it will 
concentrate too much power in a single set of 
government actors, and they, moreover, may on 
occasion be subject to political pressure.” 
Calabresi observed that the district court’s 
exercise of its sentencing discretion “may 
provide the only effective way to control and 
diminish unjustified disparities.”

Judge Walker, concurring and dissenting, wrote 
separately that Stewart’s sentence was 
“breathtakingly low” and “extraordinarily 
lenient.” He would go further than the majority 
and vacate Stewart’s sentence as “substantively unreasonable.”

Both Calabresi and the majority thought it 
significant that all of the acts for which 
Stewart was convicted occurred before the 
September 11, 2001 attacks. Calabresi would “take 
judicial notice of their timing,” and “recognize 
that our attitudes about her conduct have 
inevitably been influenced by the tragedy of that 
day.” Notably, he added: “We must be careful then 
in judging Stewart based on lessons that we 
learned only after her – very serious – crimes 
were committed.” Stewart was indicted in 2002 and convicted in 2005.

“Lynne’s representation of the sheik was in the 
best traditions of advocacy,” Tigar said. “She 
was brought into the case by Ramsey Clark, and 
her actions on behalf of her client never went 
farther than Ramsey had already gone. The 
government’s conduct towards her when the SAMs 
issue first erupted validated that belief.”

The clear message of the 125-page majority 
appellate panel opinion is that attorneys who 
zealously represent their clients in the 
post-9/11 era beware. This result will 
undoubtedly chill the willingness of criminal 
defense attorneys to handle terrorism cases. 
Moreover, the Court of Appeals fortuitously 
released its opinion just as Attorney General 
Eric Holder announced his intent to try Khalid 
Sheikh Mohammed in federal court for his alleged role in the 9/11 attacks.

Marjorie Cohn, a professor at Thomas Jefferson 
School of Law and president of the National 
Lawyers Guild, served as a judge on the 
International Peoples’ Tribunal of Conscience in 
Support of the Vietnamese Victims of Agent 
Orange. She is a member of the Bureau of the 
International Association of Democratic Lawyers. 
Her latest book is 
<http://www.amazon.com/exec/obidos/ASIN/0981576923/counterpunchmaga>Rules 
of Disengagement.




Freedom Archives
522 Valencia Street
San Francisco, CA 94110

415 863-9977

www.Freedomarchives.org  
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://freedomarchives.org/pipermail/ppnews_freedomarchives.org/attachments/20091125/37744eec/attachment.htm>