Lynne Stewart: An American Story
Directed by Francis van den Heuvel
Just what good is freedom if no one is free,
And folks go to jail if they dare disagree?
And lawyers get punished for doing their jobs?
And folks are afraid of the White House lynch mob?
Lynne Stewart was doing what she had to do
Protecting her client and civil rights, too.
She said an attorney must fight to defend --
"I'd like to think that I would do it again."
-- Vicki Ryder
[See URL for video.]
"I have done nothing wrong. Everything I have done, I have done as a
lawyer." -- Lynne Stewart
"The story of Lynne Stewart is the story of post-9/11 America. It's
a story of the federal government instilling fear, not only in Lynne
Stewart but in freedom-loving people in the United States and
lawyers, people who represent controversial clients." -- Amy Goodman,
"The actions she engaged in, she engaged in in 2000, and while I'm
not going to name names or incriminate myself, it was not uncommon,
at that time, that you would violate basically jail rules. . .
. When Sheikh Omar came to the United States, he was known to the
government as a 'freedom fighter.' He was part of an Islamic
fundamentalist movement that prior administrations had embraced in
their struggle against the Soviet Union." -- Ronald L. Kuby, Lawyer, New York
"The media likes a sexy story. The media likes violence and
conflict. There were no commies out there any more. We now had
Muslims. They wanted conflict stories of 'America Besieged,' so they
picked it up and they ran with it." -- Lynne Stewart
"Today we are able to tell Lynne Stewart's story. There have been
many untold stories of Arab men, South Asian men, being taken from
their homes, detained arbitrarily." -- Daniel Gross, Fordham Law
School, New York
Lynne Stewart: An American Story (78 min.) is to be released in
2009. The quotations above are taken from this video excerpt from
Lynne Stewart: An American Story. For more information about Lynne
Stewart, go to <www.lynnestewart.org>.
Lynne Stewart: Casualty of the "War on Terror"
by Marjorie Cohn
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 to 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 is immediate past president of the National Lawyers
Guild and a professor at Thomas Jefferson School of Law.
Lynne Stewart Update
by Jeff Mackler
Dear Friends of Lynne Stewart,
Immediately following an uplifting rally, Lynne Stewart was escorted
by a determined crowd of supporters to jail and is now incarcerated
in the Manhattan Correctional Center. As fortune would have it, she
will be there for at least 10 months, perhaps longer, that is, a good
part the total term of 28 months. If other events don't intervene,
it is possible that her entire term might be served at the
MCC. "Better there than a federal prison," her husband Ralph told me
yesterday, "because the facilities are 'better' and visiting is
easier on the family."
Lynne has lost her initial appeal to the Second Circuit to have her
scheduled December 6 surgery at Lennox Hill Hospital. Instead the
courts insist that it be at a NY facility associated with the prison
system. Lynne's request to have her medical doctor daughter observe
the operation was similarly denied.
Lynne's new sentencing hearing is set for December 2 before Judge
John Koeltl, the same judge who originally sentenced Lynne to 28
months when government prosecutors sought 30 years. Again, we can
only guess what Koeltl will do. But Lynne's attorneys are optimistic
that he will stick to his guns and not accede to the Second Circuit's
recommendation that Lynne get 80 months based on their insistence
that Koeltl did not factor into his sentence the possibility that
Lynne perjured herself during her trial testimony. We also don't
know whether Koeltl will just hear the arguments on December 2 or
hear them and make a decision.
In any case, if Koeltl does NOT add to Lynne's 28-month sentence,
government prosecutors are expected to appeal to the U.S. Supreme
Court for a longer sentence. The battle for her freedom continues,
of course; Lynne will be appealing her conviction, as well as any
possible lengthening of her sentence, to the U.S. Supreme Court.
Lynne's parting words brought tears of joy to the New York
rally. She pointed to the urgency of winning Mumia's freedom and
fighting against new efforts at Mumia's execution. She reminded us
of Joe Hill's admonition, "Don't Mourn! Organize!" Pam Africa,
leader of the fight for Mumia's freedom, was present and prominent
among Lynne's many supporters at this inspiring and tragic sendoff of
a fighter who is loved and admired by all who cherish justice and freedom.
Lynne's imprisonment made it impossible for her to attend the San
Francisco meeting of the Coordinating Committee of the National
Assembly to End the Iraq and Afghanistan Wars and Occupations, of
which she was a member and leader. The National Assembly's weekend
gathering unanimously approved a message of solidarity with Lynne and
pledged continuing efforts at her freedom. Others are urged to do the same.
Lynne is an avid correspondent. She would like nothing more than to
hear from friends and supporters. Write her at:
Lynne Stewart 53504-054
150 Park Row
New York, New York 10007
Contributions to Lynne's defense (which are tax deductible) are
urgently needed and should be made payable to: National Lawyers Guild
Foundation (memo box "Lynne Stewart defense"). Mail to:
Lynne Stewart Defense Committee
350 Broadway, Suite 700
New York, New York, 10013
For further information contact: Jeff Mackler, Coordinator, West
Coast Lynne Stewart Defense Committee 510-268-9429, <firstname.lastname@example.org>.