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Newsy Notes from the LYNNE STEWART Persecution

A great day in court last week when the prosecution uncerimoniously rested after
making jibes about Luxor and unrelated incidents (that the judge doesn't bar from this
show trial). So Tigar stand up and makes a bunch of good points. Here's a sample:


From
http://www.lynnestewart.org/transcripts/100704.txt

(scroll down a little) . . . .
23 When examining this question and to illustrates its
24 nontrivial character, one should look at the statutes as to
25 which 956 is a part. Section 956 is in a chapter of Title 18
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1 called foreign relations. And many of the statutes in that
2 chapter date back to the dawn of the republic.
3 And indeed provisions that are contained in these
4 statutes are the provisions that Chief Justice Marshall was
5 referring to in construing provisions about arming ships and
6 what was neutral and what was not in the Charming Betsy. For
7 example, Section 961 does not refer to a foreign country. It
8 says: Foreign prince or state, or of any colony, district, or
9 people, or belonging to the subjects or citizens of any such
10 prince or state; that is to say, a much broader term than the
11 term the pleader in the grand jury has chosen here, which is
12 country.
13 And in Cheung itself the issue there was whether Hong
14 Kong possessed sufficient attributes of sovereignty to be a
15 foreign government within the meaning of the Extradition Act.
16 And within the meaning of that act, which is not a criminal
17 statute, of course, subject to the canon of lenity, the court
18 said that Hong Kong did, in part, because the president of the
19 United States had sent to the Senate a treaty of extradition
20 with Hong Kong which the Senate ratified, recognizing that at
21 least for the 50-year period under which China vows not to
22 change the economic system of the former crown colony that Hong
23 Kong would possess that attribute of sovereignty. As I say,
24 this is a matter that has occupied the attention of scholars
25 and it is nontrivial. It occupied the attention of the
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1 drafters of the South African Constitution, of President Nixon
2 in recognizing Taiwan, and so on.
3 Let's assume that a country is not something that the
4 government had to prove. Let's assume that the pleader pleaded
5 it, but for some reason the government is excused from proving
6 it by presenting evidence. The question of what is alleged to
7 be the foreign country is a vital concern here because other
8 principles of international law, which, as I say, ever since
9 1804, the federal courts are bound to apply in construing
10 statutes, become relevant to the construction of this one.
11 Murder, kidnapping, says the indictment. And the statute,
12 Section 956, speaks of murder, kidnapping or maiming. Murder,
13 kidnapping, or maiming are legal terms of art that refer to
14 homicide detention and wounding. Homicide detention and
15 wounding would be the neutral terms.
16 If you look at the statutes of chapter 45 we see that
17 there are many, many instances in which people can agree to
18 kill, wound, and detain people in a foreign country. And
19 whether or not someone is empowered to kill, detain or wound
20 people in a foreign country depends on where that place is.
21 For instance, there is a recognized canon of international law
22 that a state, as a matter of customary international law,
23 cannot interfere in a civil war in another country. By not
24 interfering in a civil war in another country, one might well
25 say that that would include not choosing to prosecute one group
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1 of people who are planning to go abroad and do something, but
2 not prosecute others.
3 And I think everybody in the courtroom is well aware
4 that there are groups of people in the United States today who
5 are preparing, who are training, who are doing things with the
6 benign neglect of the United States to do things in various
7 other countries. And the justification on international law,
8 for example, for not interfering with the planning of Cuban
9 emigrates to reenter their country could only come about if we
10 consider it to be lawful under international law because the
11 United States says that there are certain kinds of killing,
12 wounding, and detaining in other countries that as to which our
13 government simply has to kind of take a hands-off position.
14 This is an unusual concept to talk about because when
15 one reflects that the United States now, and London in the 19th
16 century, were places where all men were emigrates used to get
17 together and talk, it isn't so surprising after all. Unless we
18 are told what country, we can't make a defense as to which we
19 would be entitled under international law, which is well in
20 that country. There is a civil war exception or perhaps one
21 would say that it is not a foreign country because it is a
22 failed state. Is a failed state, a foreign country possessing
23 sufficient attributes of sovereignty to be covered under 956.
24 What is a failed state? United States considered naming Iraq
25 as a failed state simply to deprive it of juridical personality
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1 and thus to be able to repudiate its debts.
2 There are other cases that one can imagine, not
3 particularly relevant here, but that it seems to us go vitally
4 to the interpretation of this statute, including the Article II
5 power of Congress to grant others of mark and reprisal. But
6 all of that is discussed in the Charming Betsy case.
7 In looking up this issue, I looked at Judge Brinkema's
8 decision, which was not before the Court. She decided it, but
9 for some reason we didn't have it, back in March of 2004 in
10 United States v. Kahn, which is cited in the letter that I've
11 handed up to the Court. And in Kahn the government did charge
12 that those defendants were involved in violating 2339 -- I
13 can't remember if it was (a) or (b) because they went and they
14 were going to do something in India, a country with which the
15 United States was at peace. And that was a part of the statute
16 there charged and Judge Brinkema made the charge that indeed
17 India was the place and United States was at peace with India.
18 Now, let's assume that it is not something that the
19 government has to prove. Let's assume that it is not something
20 the government has to name because it might give rise to a
21 defense under international law. Why else? Why should we do
22 it?
23 This is a segue to some of the broader considerations
24 that are here. The last group of exhibits that we had here
25 reflects the terrible danger that all of these defendants face,
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1 a danger which from time to time we have said that no limiting
2 instruction can save them from. And that is the danger, that
3 this case will, in the juror's minds, be a case about them
4 versus us, a case that somehow there is a Muslim conspiracy out
5 there to kill all the Christians and the Jews, that Osama Bin
6 Laden is a part of it and that anybody connected in any way
7 with it must be involved. It is the same kind of error that we
8 had to struggle so hard to liberate ourselves from in the 1950s
9 when the rubric was the worldwide communist conspiracy.
10 And the concepts then were tried to be directed to
11 individual defendants like Mr. Noto and Mr. Scales and the
12 defendants in Yates, all of those cases we have talked about
13 with your Honor. This is -- the risk here is that the jurors
14 will see this international conspiracy to fight the enemies of
15 God or somebody's version of enemies of God, and will think or
16 believe that that's the conspiracy, that it is a worldwide
17 amorphous, vague conspiracy.
18 And, of course, the next step is that since we read
19 about it every day and since all the candidates for major
20 public office speak in terms as though it existed, how can
21 Ms. Stewart not know that it exists? We can argue that she
22 certainly can't know that it exists because she reads the New
23 York Times. After all, the Times and the other papers are not
24 admitted for the truth of what is in there. They are admitted
25 only for her knowledge, intent, and state of mind.
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1 But she is not on trial just for her knowledge,
2 intent, and state of mind, although that is relevant to the
3 case. She is on trial and can be convicted, if at all, because
4 an act was committed. The act in a conspiracy case, whether it
5 be Count 1, Count 2, or Count 4, is the act of agreement. And
6 Judge Friendly wrote in Borelli of this terrible risk that
7 people are likely to confuse the group of people doing things
8 with this understanding if the agreement is the essence of the
9 offense.
10 So the vagueness that is attended by excusing the
11 government from standing up and saying we said a foreign
12 country, that's what the grand jury said, we have proved it,
13 and, lo and behold, this is what we claim it is, makes it
14 impossible for Ms. Stewart to defend on Count 4, either
15 actually or as a practical matter because she can't figure out,
16 and we can't talk to this jury about what she was and was not
17 aware of if the government hasn't told us this is what you're
18 supposed to be aware of, this is what you are charged with
19 being aware of, this is the place where it occurred, and these
20 were the people that are doing it.
21 Now, that is to say, in order for her to desire that
22 any of the charged conspiracies succeed -- and I'm talking
23 particularly about the Count 4 one, although it goes to all of
24 them, she has to know what it is. This leads me then to this
25 somewhat broader view of conspiracy and what this case, from
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1 our perspective, is about.
2 It is two and a half years since I first -- almost two
3 and a half years since I first appeared before your Honor in
4 this case, two and a half years since I met Ms. Stewart for the
5 first time. Throughout the case the government has worn the
6 mantle of antiterrorism, and I trust that this Court doesn't
7 accord that any more weight than simply an identification of
8 these prosecutors as engaged in an important public function.
9 And the Court has consistently respected the fact that
10 we on our side are as much charged with fighting terrorism,
11 fighting invasion of rights, fighting the unlawful exercise of
12 power as are the government lawyers, and we, too, recognize --
13 and I certainly do personally, based on my own experience --
14 that Luxor, with which we are not charged, but it was
15 unequivocally a violation of secular and biblical law.
16 And as I've said to the Court, for 30 years I've been
17 representing the victims of terrorism. I think there is a
18 fundamental difference of view here. There are groups in the
19 world who seek to change the policies of their government and
20 of adjacent governments by resorting to violence. That is
21 true. And some of that violence violates the laws of their own
22 country or the country in which they seek to do their conduct.
23 And nation's states acquire the obligation to render to the
24 appropriate sovereign fugitives who are said to have violated
25 those laws.
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1 But there are equally provisions of law that say that
2 those who have planned and who execute violence are excused
3 from criminal liability. I have mentioned some of those
4 provisions, Civil War. I filed with the Court previously
5 evidence that CIA agents routinely kidnap people. We have had
6 Judge Livingston's decision that there is torture and nobody is
7 punished for it under the laws of Egypt. I cite in the papers
8 Chief Justice Story's opinion in the Amistad, which is very
9 interesting, but the Amistad took place in the context of an
10 international incident involving Spain, Portugal, and the
11 United States, and he said that as a matter of the law of
12 nations, those defendants, those Africans could not be punished
13 for piracy.
14 These people, who are these people that are going to
15 do violence, they have the right to counsel. They have the
16 right to counsel not only to defend them when they are charged,
17 but inevitably people who discuss the prospect of activity that
18 may hurt others, often consult lawyers. And I am not going to
19 repeat all of the examples we gave in our papers about the
20 autonomy to which lawyers are entitled.
21 But there is a chasm here between our position and the
22 government's about this. The Court may recall the debate over
23 the Cutack Commission report in 1982. And it was the position,
24 for example, of the business round table in Weil Gotshal
25 representing them that lawyers should be able to meet with the
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1 corporate client, for example, planning the issuance of a new
2 drug to treat arthritis. That was their favorite example. And
3 the container was either going to be child proof or not. And
4 if it was child proof, the arthritis sufferers couldn't open
5 it. But if it wasn't, children might open it and might be sick
6 or die.
7 And the question of what the company's liability would
8 be in that instance was something that was regarded as within
9 the lawyer's function, and the reporter's recommendation to the
10 contrary was rejected; that is to say, people meet with lawyers
11 under circumstances where they discuss harm. The president of
12 the United States has lawyers who say, well, you can do
13 torture, but you can't have people stand up for more than a
14 certain number of hours per day.
15 With specific reference to this case, I have never
16 been in a case regarding a public figure, your Honor, in which
17 you didn't read the newspapers or provide the newspapers or see
18 that the newspapers were provided to the client so the client
19 could make intelligent determinations. And yet the government
20 is saying that's a violation of the SAMs. I have never been in
21 a case where an incarcerated client, or isolated, where we
22 didn't provide information about the client's supporters and
23 people who were outside who might have something to do with
24 providing professional legal services; in this case, getting
25 the Sheikh to a prison in another country.
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1 And to read the SAMs as prohibited, the provision of
2 legal services in these ways is at war with the autonomy of
3 lawyers in the sense that I have described it as the matter of
4 the proof in this case. It is also at war with basic
5 principles of federalism as I have pointed out in my memorandum
6 in support of the motions to dismiss.
7 An illustration of how far the government is willing
8 to go to catch Lynne Stewart is, we found out that some of
9 these newspaper articles, which had to did with Sheikh Abdel
10 Rahman's situation, people in Egypt, in an ongoing situation
11 where there really was discussion about getting him out of the
12 United States and into an Egyptian prison, they had to stand up
13 and say or they had to claim that because Ramsey Clark, the
14 former Attorney General of the United States, said you can do
15 that and that's okay and I signed the SAM and I say you can do
16 it, he must be a conspirator, too.
17 And Abdeen Jabara, founder of the American
18 Antidiscrimination Committee, he said you could do it and he
19 surely understood and he has got to be a coconspirator, too. A
20 theory that criminalizes lawyer conduct in that way that
21 broadly simply has to be wrong because it is fraught not simply
22 with the peril that the lawyers have shown, but with the idea
23 that a group of Assistant United States Attorneys can now
24 redefine what it means to practice law. It is interesting.
25 In this town it used to be the terrorists were the
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1 IRA. There were these trials and there were these people that
2 Mr. Doherty, who was there, Judge Sprizzo says he couldn't be
3 extradited. One of the great lawyers that represented all
4 these alleged terrorists and who stood up and spoke to the
5 Northern Irish Aide was Paul O'Dwyer. The reason I thought of
6 this, I was having coffee yesterday morning and I looked across
7 the street and they named the street in front of the courthouse
8 after him. And then Mayor Dinkins named the street over by the
9 MDC Joe Doherty Way until Mayor Giuliani took the sign down. I
10 don't say that lightly or make a pleasantry. It is to talk
11 about context and talk about the risks we feel we face.
12 Now, that brings me to the other part. Your Honor
13 held conformably to Dennis and Bryson that we would not be able
14 to make a frontal challenge to the validity of the SAMs, just
15 that the Dennis defendants were not able to challenge in their
16 371 conspiracy to defraud prosecution, the constitutionality of
17 section 9(h) of the Taft-Hartley act, and that's the law of the
18 case.
19 But there is no case under Section 371 that deprives a
20 defendant of the right at motion for judgment of acquittal time
21 of the ability to make and have interpreted a First Amendment
22 argument about the content of particular expression, especially
23 when that particular expression consists of speech that relates
24 to core concerns. Speech that relates to core concerns may at
25 times be very, very violent indeed, it being recognized that
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1 people who are the victims of torture, summary execution,
2 hostage taking, all of the things that have been laid at the
3 feet of the Egyptian government and in a judgment to which the
4 United States was a party and did not appeal and is therefore
5 bound by, in some sense of the word, that they may react in
6 certain ways. That's just a reality, your Honor, and we have
7 cited Hess v. Indiana, kill the pigs, kill the pigs. We have
8 cited Yates. We have cited Watts. If you give me a gun, I
9 want to kill the president. There are a lot of not pretty
10 things that are said by people who are engaged in this kind of
11 struggle.
12 We recognize that in the very case in the Second
13 Circuit, the Rahman case, the court said, well, no, not
14 standing in the kitchen with Mr. Salem and saying blow things
15 up. That's not what that is about. Once we get all this
16 newspaper reading and so on out of the way -- again, I say -- I
17 represented, your Honor, the only city member of the United
18 States Senate ever to have been acquitted by a jury, and the
19 idea that in the course of preparing that case we couldn't read
20 the newspapers every day would be surprising.
21 What did Ms. Stewart do? Let's look at the statement.
22 Let's look at that. She goes to the prison. She has a
23 discussion. Mr. Yousry translates before what he is going to
24 read. That is what the approved by means. Ms. Stewart and
25 Mr. Yousry don't want the guards to interrupt them. So the
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1 fact that he is doing a lot of talking and she is not, she does
2 engage in some behavior that make sure the guards don't listen
3 in. She remarks there seems to be a lot of guards around
4 today.
5 I hope the government doesn't continue to persist on
6 that point, because I might have to turn myself in. Because
7 every time I have ever gone to a prison in a high-profile case,
8 I have tried to do things to keep the guards from hearing what
9 we talk about. I regard that as normal, whether it is to take
10 a radio in or write things or not say things or even say things
11 that divert. We take that and put it to one side.
12 Let's see what happens at that visit. This is a
13 conversation in Government Exhibit 1711, your Honor, at page 31
14 of the transcript provided to us. And that's the May 20
15 conversation. And that's at a point where they are discussing
16 what Abu Yasir wants. And at page 31, line 3 Mr. Yousry says:
17 Abu Yassir is asking unintelligible, wants your approval that
18 he can escalate with the media and try to rearrange the
19 thinking of. Escalate with the media. Concerning what? The
20 initiative completely.
21 Line 9: Tell him, yes, I agree, but not to cancel it.
22 He should not cancel it all together, not to void it. He can
23 go ahead and escalate, referring to escalating with the media.
24 Then Ms. Stewart on the 14th of June 2000 talks to
25 Mr. Salaheddin and says that the Sheikh withdraws his support
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1 for the initiative or cease fire or whatever, withdraws his
2 support.
3 Let's take it that indeed those are the exact words
4 that she said. Let's understand the context in which the
5 Sheikh is told in prison that the government has once again
6 started killing people and summarily executing them and taking
7 hostages, and minors are being tried by military courts and so
8 on.
9 What does that lead to, your Honor? The government
10 promised us that we were going to get a command to pick up the
11 guns. Nobody in Egypt interpreted it as a command to pick up a
12 gun in the sense that nobody picked one up. The first thing
13 that happened was that Montasser al-Zayyat and the brother in
14 prison said that can't be impossible. Six days later there is
15 a clarification where the Sheikh says, I'm not supporting this
16 thing anymore, but I certainly didn't cancel it.
17 And then in one of these wonderful vindications of
18 John Stewart Mills, a theory of freedom of expression, more
19 speech does the job. Because in fact the questions that Sheikh
20 Omar Abdel Rahman was quoted by Ms. Stewart as raising leads to
21 a reaffirmation of the initiative. That's the First Amendment.
22 As far as the fake fatwah is concerned, she didn't
23 have anything to do with it. When she heard about it, she was
24 surprised. If he is for it, well, that's it; I'm for it, is
25 the language that's quoted.
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1 The idea that you stick people with particular words
2 in casual conversation is a strange one. The likely meaning is
3 if she did it she would have to defend it. She never did
4 anything about it or spread it or anything else. That doesn't
5 quite seem fair.
6 Then, of course, there is the statement about insulin,
7 your Honor, which the government is also relying. Wow. The
8 son and the wife of the Sheikh get concern about his medical
9 treatment. A guard at the prison says he is not taking his
10 insulin. Ms. Stewart is barred from seeing her client. She
11 has no idea what's happening except that she does know from her
12 experience that a number of things have happened in that prison
13 that are very disturbing, that the Sheikh, they approach him
14 when he is naked, they look at his body. They do things that
15 are insulting to a Muslim.
16 Dr. Edward, he doesn't even know what Hallal food is.
17 I am not going to go into all of the details. There is some
18 failure of communication. Dr. Edward, he did say that. As far
19 as Ms. Stewart is concerned, she doesn't know anything.
20 Mr. Sattar is calling her. What does she say? Nobody on the
21 outside knows. What is she supposed to do? Tell us what is
22 her legal duty when she hears third-hand hearsay about
23 something that is attributed to her client?
24 Can it really be said she has an enforceable legal
25 duty to intercede in a matter where she is prohibited from
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1 seeing her client to make sure that no false reports get to the
2 press? Is it now a federal crime to say things in public that
3 arguably might cause danger? We can all think about that for a
4 minute. In a day and time when there are so many revelations
5 about so many things that were said to the press that have
6 caused the deaths of so many and turned out to be false, it
7 does not lie with this executive branch, your Honor, to give us
8 lessons on telling falsehoods to the media.
9 In short, your Honor, nothing in the history of 371,
10 not the Klein case, not Professor Goldstein's wonderful article
11 about the Klein case, or any of the other cases says that we
12 can't look at the First Amendment here. And if we can't, we
13 suggest that we must. I note this, your Honor. In the Cosa
14 Nostra cases the government usually had an expert that would
15 say, you know, this is the Cosa Nostra. This is how they are
16 organized. These are the dangers they create.
17 THE COURT: The government knows I have not been a fan
18 of experts such as that subject. There was no effort to
19 introduce such an expert and it is simply not in a case.
20 MR. TIGAR: Your Honor, I take seriously what your
21 Honor says. Had there been one, I would have been the first
22 one to say, under the Second Circuit's recent decisions, the
23 expert can't testify. Then we ask ourselves, what is the
24 evidence, what is the evidence about conditions in Egypt that
25 the government did introduce? Well, there is Judge
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1 Livingston's opinion about the torture. There is Judge
2 Livingston's opinion that the FBI overvalues its intelligence
3 sources. There are human rights country conditions reports.
4 There is the State Department's own report. The government
5 introduced two State Department reports in evidence but didn't
6 read them to the jury. You know what those reports say, your
7 Honor? The Egyptian people have no meaningful opportunity to
8 change their government by peaceful means. Two government
9 exhibits.
10 I represented people. I sat in rooms in South Africa
11 with people that I knew also were engaged in some way,
12 connected in some way to the arms struggle. That was what
13 lawyers are supposed to do, your Honor.
14 Finally, I'd like to talk a little bit about these

15 1001 counts. That's a technical thing.
16 Excuse me, your Honor, one more thing. Judge
17 Brinkema's opinion in the Kahn case is very, very interesting
18 to me because those defendants were charged with providing
19 personnel in the same way that we are. And Judge Brinkema
20 discusses humanitarian law, that case. In that case she
21 defines the provision of personnel in her discussion of 956 and
22 the 2239 in terms of these people going to a training camp and
23 learning how to fire rifles and picking up guns, training in
24 the United States using paintball instead of real weapons.
25 I suggest to the Court that Judge Brinkema's analysis
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1 of the providing personnel part of this offense is worthy of
2 study. And I suggest also that in the context of my discussion
3 of the issues the government has failed to prove that
4 Ms. Stewart provided the Sheikh to a conspiracy. That's an
5 offshoot of my argument about vagueness, provided the Sheikh to
6 a conspiracy. By issuing the statement on June the 14th, 2000?
7 I have talked about that. Thereafter, she was barred for that
8 whole time from August to the following July when she sees him
9 again, so there couldn't be any providing about that. In
10 short, your Honor, we submit the government has failed the
11 proof.
12 The 1001s. The interesting thing, your Honor, about
13 the May 19 and 20 prison visit is that during one of those
14 tapes your Honor can see a document on the table, on the white
15 table cloth and, lo and behold, if you zoom in on it, as I saw
16 it go by, it is the SAM affirmation that Ms. Stewart has
17 already signed. If that's what that evidence shows, and we say
18 that it is, she arrived at the prison in Rochester having
19 signed the SAM. On or about May 16, the SAM affirmation was
20 signed.
21 Now, it is at page 31 of 1711 that we have Sheikh
22 Abdel Rahman saying, well, I want to do this, I want to tell
23 this to Abu Yassir, this, that, and the other thing. So if we
24 discard this idea of making everybody a conspirator about
25 reading newspaper articles, and if that's the SAM that she
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1 allegedly -- that's the false statement, that SAM is the false
2 statement. The SAM affirmation, first of all, it refers to an
3 invalid SAM. The SAM that came attached to the affirmation was
4 the December '99 SAM which only lasted 120 days, and so that
5 couldn't be violated. It then has the typo and everyone says
6 well, that's just a typo.
7 We still insist on those points, but fine. The
8 affirmation is in three parts: One, the past tense; two, the
9 present tense; and, three, the future tense. And the Court
10 dealt with this issue in the Shah discussion, in the Shah case.
11 You said they had to prove the times she signed it she intended
12 to violate it. That simply is an inference that doesn't hold
13 water. She had the signed SAM with her at the visit. She had
14 signed it before. And there simply is not a line, not a word
15 of evidence that she pondered the idea of issuing any media
16 statement until after she left the prison and indeed until
17 after she had a meeting with Mr. Jabara and Mr. Clark until
18 after she talked about it, until somebody came to her office.
19 They called Mr. Salaheddin on the 14th. The same thing could
20 be said about Count 7.