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The Cases of Lynne Stewart, Clive Stafford Smith, and Navy JAG Lawyer Charles Swift: Government Retaliation Against Attorneys for Terrorism Suspects


Thursday, Oct. 19, 2006

In February 2005, attorney Lynne Stewart was convicted of providing material support to a terrorist conspiracy. The charges arose from her representation of Sheik Abdel-Rahman, convicted in connection with the 1993 World Trade Center bombings.

The government wanted her to serve 30 years in prison. But this Monday, October 16, Stewart was sentenced to 28 months. The translator who was her codefendant, Mohamed Yousry, was sentenced to 20 months. Stewart is free on bail, pending her appeal.

U.S. District Court Judge John G. Koeltl, of the Southern District of New York, did the right thing. Stewart is sixty-five, and battling cancer and diabetes. As Koeltl noted, she has devoted her career to representing court-appointed criminal clients in the state and federal courts of New York. Moreover, as I will explain below, the government did not show that anyone was harmed by her actions. (In contrast, this has not prevented harsh sentences in other cases -- such as those of a set of defendants in Virginia whom I discussed in a prior column.)

Upon conviction, Stewart commented, "I hope [this case] will be a wake-up call to all the citizens of this country and all the people who live here that you can't lock up the lawyers, you can't tell the lawyers how to do the job, you've got to let them operate."

But Stewart was wrong.

Her case; the treatment of Lt. Cmdr. Charles Swift, a career Navy JAG lawyer; and a possible pending investigation of a civilian attorney (Clive Stafford Swift) for a Guantanamo Bay prisoner, evidence the government's modus operandi to try to control attorneys for terrorism suspects or convicts and, if it cannot control them, to punish them -- perhaps even charging them as terrorists themselves, as occurred with Stewart.

The Basis for Stewart's Conviction: Violation of Ashcroft's SAMs

After Stewart's client, Sheik Abdel-Rahman, was convicted, he was sentenced to life in prison. Stewart's visits to him (he is now in a federal prison hospital in Minnesota) were governed by Special Administrative Measures (SAMs) -- restrictions that Attorney General John Ashcroft instituted in October 2001, to govern visits by lawyers to clients charged with, or convicted of, terrorist crimes.

The SAMs ordered Stewart not to discuss anything with Rahman except post-conviction representation, and not to disclose to the press the content of any meetings. In addition, Stewart was warned that her visits would be subject to surveillance and recording. (However, it turned out that the most damaging evidence against Stewart came, instead, from surveillance of the Sheik in accordance with a Foreign Intelligence Surveillance Act (FISA) warrant that had been in effect since at least 2000.)

Stewart was charged -- along with her translator, Yousry, and Ahmed Abdel Sattar, a man associated with the Sheik's terrorist organization, the Islamic Group -- with using her visits with her client to smuggle messages out of prison to the Sheik's supporters in the Arab world. The Islamic Group has been implicated in several terrorist incidents, including the bombing of the U.S.S. Cole in 2000. Stewart claimed that her visits to Rahman were connected with conditions of his confinement and sentence, including working for his release to Egypt.

On some visits to Rahman, Stewart spoke gibberish so that the recording devices could not easily capture the conversations between Yousry and Rahman. She was also heard commenting on her efforts to evade surveillance. At times, Yousry took down messages from Rahman, which he then passed on to Sattar (a New York City postal worker), who allegedly disseminated them to the Sheik's followers. (Stewart denied knowing that this was what Yousry was doing, and inasmuch as Stewart does not understand Arabic, the denial is plausible). In sentencing Stewart, Judge Koeltl said the smuggled messages could have had "potentially lethal consequences."

Also, Stewart issued a press release to Reuters in 2000 saying that the Sheik did not agree that there should be a cessation of terrorist violence with which the Islamic Group was associated. The government argued that Stewart intended the press release to be a hidden message to the Sheik's followers to continue acts of terror.

Stewart's Defense, the Charges Against Her, and the Evidence at Trial

Ultimately, Stewart admitted that she intentionally violated the SAMs. But she argued they placed an unconstitutional prior restraint on her First Amendment right to speak to her client and to speak to the press, and on her client's right to counsel under the Sixth Amendment.

Judge Koeltl rejected this defense. She should have sought an injunction against the enforcement of the SAMs, he said, on the ground that they were unconstitutional, rather than simply violating them.

For these actions, Stewart was charged with effectuating a virtual "jail-break" for the Sheik. The government deemed the messages "instruments of terror," and the jury agreed.

Stewart appears to have good grounds for an appeal.

The government succeeded in getting in evidence that tried to connect Stewart and the Sheik to al-Qaeda and 9/11. Indeed, the trial, which took place at a courthouse in the vicinity of the former World Trade Center, closed with videotape of Osama bin Laden. This evidence was arguably highly prejudicial -- and Judge Koeltl may well have been wrong to deem it admissible -- for the government was not able credibly to connect Stewart and her co-defendants' actions to 9/11.

In the end, Stewart was wrong to violate the SAMs, rather than challenging them in court as Judge Koeltl suggested, and wrong perhaps not to question what Rahman and Yousry were up to. After all, Yousry was allowed to accompany Stewart as an interpreter, not as a scribe to Rahman. And for these violations, she should surely have been punished--though not as a terrorist. Nor should she have lost her right to practice law; though her conduct was wrong, and serious, when viewed in the context of her long and honorable career, it does not justify disbarment.

In a pre-9/11 world, Stewart might simply have been sanctioned (but not disbarred) by the New York State Bar, rather than facing criminal charges carrying a potential decades-long sentence. Surely 9/11 provides an argument for increasing punishment of bona fide terrorists. But not for surveilling and punishing their lawyers, too.

Stewart Is Not Alone In Facing Government Reprisals For Representing A Terrorist

Even as SAMs are applied in some federal court cases in the U.S., at Guantanamo Bay both military and civilian attorneys representing prisoners have also been subject to highly restrictive measures. Though the rules change frequently, they have, at times, restricted attorneys from taking papers into and out of the visitation cells without government examination or confiscation, and forced attorneys to allow the government to videotape all client meetings.

Meanwhile, attorneys who call overseas to interview witnesses who might be able to give exculpatory testimony can surely count on having the phone calls tapped, either via the Presidentially-authorized NSA surveillance or through FISA warrants. Given the Administration's belief in guilt-by-association when it comes to terrorism suspects, suspects' family members and friends--and perhaps even their lawyers-- are likely to be on the surveillance list. (Some of these attorneys have joined in ACLU suits challenging the NSA surveillance program.)

Lawyers for Guantanamo detainees also are restricted in what they can say about the prison and their clients' cases.

The government may even be considering a case against a Guantanamo detainee's attorney. This June, three Guantanamo prisoners committed suicide. After the suicides, the prison commander charged that rather than being acts of desperation, they were a form of organized "asymmetric warfare." Now attorney Clive Stafford Smith, who represents a fourth Guantanamo prisoner, may be the target of the investigation.

Smith's client, Mohammed el Gharani, has faced weekly government interrogations. And Smith told the Associated Press in an email that "[Gharani's] interrogators have repeatedly questioned him about my purported role in the suicides." Stafford also stated in the email that "The interrogator said I told my clients to kill themselves, and word was passed to the three men who did commit suicide."

Smith says flatly that he has no connection at all to the suicides, and he say the Defense Department, in charge of Guantanamo, may be trying to shift blame to him.

It's not only Smith's ability to represent Gharani that has been destroyed: In the course of the investigation, the Navy has seized more than a thousand pages of documents from detainees, including attorney-client materials and exculpatory evidence to be used in military tribunals, such as affidavits obtained at great effort from family members.

Lt. Cmdr. Charles Smith: Yet Another Attorney Who Suffered Government Retaliation

This year, as readers may recall, the Supreme Court invalidated the Bush Administration's use of military tribunals to try Guantanamo prisoners in its decision in Hamdan v. Rumsfeld. The attorneys who worked on that case -- including Neal Katyal of Georgetown, who argued it before the Court -- helped establish the crucial principle that, under our Constitution, such proceedings must be authorized, if at all, by Congress, and the principle, too, that the Geneva Conventions are fully a part of United States law.

Yet one of those attorneys may have faced retaliation for his role in the case. Lt. Cmdr. Charles Swift is a career Navy JAG lawyer. He was ordered to represent Salim Hamdan, who at one time was Osama bin Laden's driver. But his success in vigorously representing his client came with a price.

Initially, Swift was told that he could only see Hamdan in order to negotiate a plea agreement that would be entered before formal charges were even filed. Rather than violate that order, Swift refused to see the client. Ultimately, the government relented -- and Hamdan not only did not execute a plea agreement, but, with Swift's counsel, he took on the Bush Administration and won.

Two weeks after the Supreme Court ruling, Swift's status in the Navy came up for review. Pursuant to an "up or out" policy, Swift either would be promoted or have to leave the Navy. Although Swift was hailed by his direct supervisor as being among the finest lawyers in uniform, he was denied promotion, and now must leave the Navy.

Swift says that even had he known he would be passed over, he still would have represented Hamdan in the same way -- for he says, he had a duty to protect and defend the Constitution, and he did. The Navy denies that the lack of promotion was retaliatory.

Swift will continue to represent Hamdan as a civilian attorney, working with the Seattle law firm of Perkins & Coie. They will be filing a challenge to constitutionality of the new Military Commissions Act (MCA).

Under the Military Commission Act, Lawyers Too May Face Military Commissions

Swift testified before Congress in opposition to the MCA, proposed in the wake of Hamdan. He explained, persuasively, why he opposed the Act: He so respected the Constitution, the Geneva Conventions, and the Uniform Code of Military Justice, which governs military trials, that he felt duty-bound to try to preserve the military from the slippery slope of "tribunals," which sidestep the guarantees of all these laws.

Of course, the MCA became law on this Tuesday, October 17, when President Bush, with much fanfare, signed the bill in a jubilant White House ceremony. And its broad sweep, in an ugly irony, may force military commissions not only of terrorism suspects, but also of lawyers, as well.

The MCA is purportedly limited to "unlawful combatants," but the definition is extremely broad. As Joanne Mariner noted in a recent column for this site, the definition includes those who "purposefully and materially supported hostilities against the United States or its co-belligerents." Mariner also notes that the MCA, by its language, seems to allow the President or Secretary of Defense unrestricted power to deem literally anyone an unlawful enemy combatant. (For more on the MCA, see recent FindLaw columns by Michael Dorf, and by Aziz Huq.)

Recall that "material support" charges were the charges brought against Lynne Stewart -- and there, the "support" came down simply to bearing messages. With precedents like this, it is not inconceivable that we could see a military commissions proceeding against supposed "enemy combatant" Clive Stafford Smith, if the government indeed claims he was somehow behind the three Guantanamo detainees' suicides.

If this sounds far-fetched, consider that the government deems the three Guantanamo suicides themselves an act of terrorism ("asymmetric warfare"), and that it seems to be trying to establish -- through interrogation of Smith's own client -- that Smith was behind these supposed terrorist acts.

Stewart says her sentence is a victory over an overreaching government. It is victory for her, no doubt, considering that the government wanted what would have been a life sentence.

But neither the verdict nor the sentence is a victory for the rest of us. The meta-message in the Stewart verdict and sentence, taken in the context of the government's tendency to frame the most far-fetched set of facts as terrorism and the sweeping powers given the President under the Military Commissions Act, is that people who stand up for their own rights and the rights of others face not open and transparent prosecution in federal court--like Stewart--but arrest, trial, and imprisonment by the President of the United States.

Elaine Cassel practices law in Virginia and the District of Columbia and teaches law and psychology. Her textbook, Criminal Behavior (2nd ed., in press, Erlbaum), explores crime and violence from a developmental perspective. Her book, The War on Civil Liberties: How Bush and Ashcroft Dismantled the Bill of Rights, was published by Lawrence Hill in 2004.

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