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By Mark Hamblett
New York Law Journal
July 22, 2003
Defense lawyer Lynne Stewart scored a victory yesterday when a federal judge dismissed charges that she provided material support to a terrorist group.
Southern District Judge John G. Koeltl agreed with defense lawyers that the federal statute forbidding the provision of material support or resources to a designated terrorist group, 18. U.S.C. §2339B, was unconstitutionally vague as applied to Ms. Stewart and her co-defendants.
The judge in United States v. Sattar, 02 Cr. 395, also dismissed a conspiracy count based on that same law, leaving Ms. Stewart facing the two least-serious charges leveled against her in an indictment issued last year: making false statements and conspiring to defraud the government.
Ms. Stewart and three others were charged with helping convicted terrorist conspirator Sheikh Omar Abdel Rahman maintain contact with the outlaw terror organization Islamic Group from behind the bars of a federal prison. Ms. Stewart had represented Sheikh Abdel Rahman at his 1995 trial for seditious conspiracy to commit terror attacks in New York City, and continued to visit him after he was incarcerated.
The indictment accused her and co-defendants Ahmed Abdel Sattar, Yassir Al-Sirri and Mohammed Yousry with staffing a "communications pipeline" between the sheikh and the Islamic Group, an organization that had claimed credit for the massacre of 62 people at an archeological site in Luxor, Egypt, in 1997.
The Islamic Group had a tentative cease-fire with the Egyptian government in which it was refraining from terrorist attacks, and Ms. Stewart and her co-defendants were accused of communicating Sheikh Abdel Rahman's withdrawal of support for the truce.
On the material support for terrorism charge, Ms. Stewart was accused of providing "communications equipment" and "personnel" to the Islamic Group in violation of §2339B.
However, Ms. Stewart's lawyer Michael Tigar and Kenneth Paul, the lawyer for Mr. Sattar, argued that the law criminalized innocent behavior.
"The defendants are correct and by criminalizing the mere use of phones and other means of communication the statute provides neither notice nor standards for its application such that it is unconstitutionally vague as applied," Judge Koeltl said. "A criminal defendant simply could not be expected to know that the conduct alleged was prohibited by the statute."
Mr. Tigar also argued that it put Ms. Stewart in an untenable position as a lawyer for Sheikh Abdel Rahman, an opinion Judge Koeltl appeared to embrace.
"The Government accuses Stewart of providing personnel, including herself, to [the Islamic Group]," Judge Koeltl said. "In so doing, however, the Government fails to explain how a lawyer, acting as an agent of her client, an alleged leader of an FTO [foreign terrorist organization], could avoid being subject to the criminal prosecution as a 'quasi-employee' allegedly covered by the statute."
Moreover, Judge Koeltl said that the "Government expressed some uncertainty as to whether a lawyer for an FTO would be providing personnel to the FTO before the Government suggested that the answer may depend on whether the lawyer was 'house counsel' or an independent counsel - distinctions not found in the statute."
Judge Koeltl refused to find the material support for terrorism statute unconstitutionally overbroad, saying its prohibitions are content-neutral and its purposes are "aimed not at speech but at conduct."
Furthermore, the judge rejected a defense request for a ruling that the Islamic Group was improperly designated a foreign terrorist organization, and he declined to find unconstitutional the statute that provides for such a designation.
Judge Koeltl's opinion also dealt with several issues revolving around the Special Administrative Measures imposed on Sheikh Abdel Rahman by the Bureau of Prisons. The measures prevented Abdel Rahman from speaking to the media or communicating with the outside world.
Ms. Stewart claimed that restricting her client's right to speak, and her right to speak for him, violated her First Amendment rights, as well as her right to practice as an attorney.
She also challenged an attorney affirmation she signed in May 2000, in which she agreed to "abide" by the terms of the administrative measures. The government claimed she ultimately broke these measures by making extraneous comments to cover a conversation concerning the Islamic Group between Sheikh Abdel Rahman and the interpreter, Mr. Yousry, and when Ms. Stewart's made a statement to the media saying the sheikh was "withdrawing his support" for the Islamic Group's cease-fire.
Judge Koeltl agreed with prosecutors.
"The Government argues correctly that Stewart cannot defeat the charges against her by attacking the legality or constitutionality of the statute or requirement that prompted her alleged deceit," Judge Koeltl said. He added that "it is clear that Stewart had avenues of redress within the legal system through which she could challenge the [administrative measures] or the Government's authority to obtain the May affirmation."
While the judge refused to dismiss the false statement and conspiracy to defraud charges against Ms. Stewart, he did grant her request for an evidentiary hearing on whether her signing of the affirmation and her conversations with a federal prosecutor about the administrative measures amounted to a non-prosecution agreement.
Judge Koeltl also rejected motions to dismiss Count Three of the indictment charging Mr. Sattar and Mr. Al-Sirri with soliciting persons to engage in crimes of violence.
Finally, he rejected motions made by Ms. Stewart and Mr. Sattar to sever their trials.
Southern District U.S. Attorney James B. Comey said in statement, "We continue to believe that the statute prohibiting material support of terrorism is constitutional, and we are reviewing our appellate options."
Assistant U.S. Attorneys Robin Baker and Christopher Morvillo represented the government.
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