An elegy for radical lawyering.
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.