Lynne Stewart: Casualty of the 'War on Terror'

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

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

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

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

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

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

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.

This article first appeared on the Jurist.

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