Lynne Stewart, Brandon Mayfield, and the Portland Seven

One of the means that the George W. Bush administration has used to curtail civil liberties is to attack lawyers who defend unpopular clients. The most high-profile example has been the case of Lynne Stewart, one of whose clients was Sheikh Omar Abdel Rahman who is now serving a life sentence for seditious conspiracy against the United States.

The latest charges accusing attorney Lynne Stewart of providing material support and resources to a foreign terrorist group should be dismissed because she could not have known her actions were illegal, according to her defense lawyer, Michael Tigar.

In oral arguments on Friday before Southern District Judge John G. Koeltl, Mr. Tigar said Ms. Stewart's prison communications with her client, Islamic Group spiritual leader Sheikh Omar Abdel Rahman, could not be penalized because she lacked proper notice that her actions would violate the material support law.

For the government, prosecutor Robin Baker expressed confidence that the statute as applied to Ms. Stewart was not unconstitutionally vague.

A similar case against Ms. Stewart was dismissed in July on grounds of vagueness. Now the government has brought new charges, based on exactly the same actions, that by nature are harder to prove. To win a conviction the prosecution must show that Ms. Stewart intended to give assistance to members of a terrorist conspiracy. She is not charged with conspiracy herself. The charges stem from her contacts with Sheikh Abdel Rahman. (Mark Hamblett, "New Lynne Stewart Charges Raise Hurdle for Government," New York Law Journal, April 12, 2004)

U.S. District Judge John Koeltl himself "pointed out in his opinion, received by the defense on April 20, 2004, that the government has a heavy burden of proving that Lynne Stewart intended to help a terrorism conspiracy" ("The Trial of Lynne Stewart," April 2004). As Tigar says, "They can't prove it because it didn't happen" ("The Trial of Lynne Stewart," April 2004). Why did the government persist in bringing "new charges, based on exactly the same actions, that by nature are harder to prove" (Hamblett, April 12, 2004) against Stewart after the original charges based on the same actions were "thrown out for 'revealing a lack of prosecutorial standards' and for being 'unconstitutionally vague'" (Susan Chenelle and Ian Cook, "Defending the Defense: An Interview with Lynne Stewart," Z Magazine 17.5, May 2004)? Doesn't the government know that it can't win? Because the point, for the government, is not necessarily winning the case against Stewart but, first and foremost, harassing a radial lawyer who has made a point of defending radicals, in order to make an example of her trials and send a message to all lawyers:

CHENELLE/COOK: Why is Ashcroft so determined to stop you and lawyers like you from defending clients like Sheik Omar Abdel-Rahman?

STEWART: It’s very clear they don’t like lawyers. No lawyers at Guantanamo. No lawyers for Padilla. It gets in the way of the smooth running of the state to have these pesky lawyers. I was just a natural because the Sheik is probably the highest profile "terrorist" that they ever convicted in this country and I have also done some important work that is probably not in keeping with their outlook on the world—defending Black Panthers and the Weather Underground. On a personal level, I think it’s payback for 40 years of activism. On a bigger level, I think it’s a warning shot to all defense lawyers: Don’t go too far; don’t be too vigorous. Do it our way or we can come and get you. (Chenelle and Cook, May 2004)

The whole proceedings are to warn lawyers who defend, or even think of defending, individuals whom the government would rather deny effective legal counsel: you can beat the rap, but you can't beat the ride.

Lynne Stewart has not been the only lawyer harassed by the government for her legal practice. An "affidavit filed by FBI Special Agent Richard K. Werder in support of a material witness arrest warrant for Portland lawyer Brandon Mayfield," concerning "the March 11 bombings in Madrid that killed 191 people and injured 2,000 others," made much of the fact that "Mayfield represented Jeffrey Leon Battle in a child custody case. Battle later was among a group of Portland men who pleaded guilty to conspiring to help al-Qaida and the Taliban fight U.S. forces in Afghanistan," in addition to casting suspicion on him because he is a Muslim convert and married to an Egyptian-born woman ("FBI's Brandon Mayfield Case Timeline," KATU.com May 24, 2004). Mayfield was freed on May 20, after "Spanish authorities put an end to the ordeal when they announced that the fingerprint actually belonged to Ouhnane Daoud, an Algerian living in Spain" (Andrew Murr, "The Wrong Man," Newsweek, June 7, 2004), prompting the FBI to offer a rare public apology: "'The FBI apologizes to Mr. Mayfield and his family for the hardships that this matter has caused,' the bureau said in a statement. The agency also said it would review its practices on fingerprint analyses" (The Associated Press, "FBI Apologizes to Lawyer Held in Madrid Bombings," May 25, 2004). The case brings into question not only the FBI's fingerprint analysis and uses to which the material witness law has been put (Cf. Steve Fainaru and Margot Williams, "Material Witness Law Has Many In Limbo: Nearly Half Held in War On Terror Haven't Testified," Washington Post, November 24, 2002, p. A01; Editorial, "Apology Is Not Enough," Washington Post, May 27, 2004, p. A30) but also points to the prejudice against Muslims and lawyers who defend them -- even in a child custody case, as Mayfield did.

As for the weak cases against the Portland Seven, read Jeff Alworth, "The Portland Seven: What Terrorists?" Open Source Politics, October 24, 2003; and Jeralyn Merritt, "Two Oregon Terror Defendants Sentenced to 18 Years," TalkLeft, November 24, 2003.

Cf. FindLaw Legal News and Commentary's "Civil and Criminal Terror Cases."