Prosecutorial missteps could lead to lighter sentence for activist attorney
Two lawyers whose actions may have paved the way for Lynne Stewart's "crimes" were not charged.

Analysis
By Peter Duveen

PETER'S NEW YORK, December 1, 2009--Lynne Stewart, activist attorney, is to be re-sentenced tomorrow for crimes the government claims Stewart committed, and that a jury convicted her of. She was basically accused of engaging in a conspiracy to manipulate the policies of the Egyptian government through coercion, and of breaking her promise to abide by agreements she signed that would have restricted her client, the famous "Blind Sheikh," Omar Abdel Rahman, from communicating his allegedly terrorist intentions to the outside world.

The government, as represented by the U.S. Justice Department attorneys who pursued the case against Stewart, alleged that by issuing a press release announcing the Sheikh's intention to withdraw his support for a suspension of hostilities between the Egyptian government and groups friendly to him, Stewart was part of a plot "calculated to affect the conduct of the Egyptian government through intimidation and coercion."

But the real story is what the government did that led to the deaths of 58 tourists in Egypt. In 1995 it took the outrageous step of prosecuting the Sheikh for crimes he likely never committed, for bogus crimes dreamed up by the government and rubber stamped by a susceptible jury. He was deemed connected by the slimmest threads to the bombing at New York City's World Trade Center in 1993. Many Muslims, and in fact people of all faiths and belief systems, were outraged worldwide when this happened, and they were even more incensed when the Sheikh's communications with the outside world were severely restricted. And surely, as if by clockwork, the day came when some two years later, accompanied by a cry to free Rahman, 58 tourists were slain in Luxor, a famous tourist destination in Egypt. All of this occurred before Lynne Stewart took the actions on behalf of her client that made her a target of the government.

Now the "blow back" theory was one that became a popular minority view in the wake of the events of September 11, 2001. According to the theory, the terrible destruction of that day was carried out in reaction to an American foreign policy that was openly hostile and unjust to Muslims. But more astute observers have since suggested that covert elements in the U.S. government perpetrated 9-11 to create a pretext for the invasions of Afghanistan and Iraq, and for deploying a new and overbearing national security apparatus. The blow back theory, as sacrilegious as it seemed to many in the wake of the 9-11 tragedy, started to take a back seat after it became evident to an increasing body of observers that the government's explanation for the events of that day didn't fully pan out. Interestingly, among the first to suggest that 911 was an "inside job," as the maxim goes, were very mainstream columnists Willliam Safire and Robert Novak.

In hindsight, there is reason to suspect government involvement in the 1997 Luxor massacre. One individual who, according to the government, was involved in the massacre, has the look, touch, taste and feel of a government stoolie. Rifa'i Taha Musa (the government's spelling) was a leader of the Islamic Group, which, according to the government, was implicated in the massacre, and by 2001 he was being extradited from Syria to Egypt, where he seems to have disappeared. Rahman himself, according to Wikipedia, claimed Israel was responsible for the massacre, while others pinned the blame on the Egyptian police for what was decidedly a very un-Islamic act--the murder of defenseless civilians. The introduction of Taha as an "unindicted co-conspirator" in Stewart's trial was the government's attempt to connect Stewart and two other defendants with what purported to be a real terrorist act, the murder of the 58. The government tried to establish an intimate link between Stewart's actions and the activities of Taha, at least in the minds of jurors.

Whether blow back or design, the Luxor massacre was linked to, or was portrayed as a reaction to, Rahman's imprisonment. Pamphlets at the scene of the massacre were said to have called for the Sheikh's release. One cannot help but lay the blame for the mass murder directly at the doorstep of the U.S. Justice Department for its unjust prosecution of Rahman. But to deflect attention from its own misdeeds, the government decided to set up Stewart and then charge her with a phony crime of the sort the government, in fact, committed. Stewart was convicted of conspiring to murder people, an action that she says never crossed her mind to commit, but which the government did commit in substance, in that it must have known beforehand the consequences of prosecuting and imprisoning a substantially innocent religious leader of the stature of Rahman. And even if one accepts the far-fetched and theoretical view that Stewart intended to conspire to commit murder, no deaths occurred as a result of what she did, nor was there any loss of life associated with her actions of assisting the Sheikh in communicating with the outside world.

A judge who perhaps understood that Stewart had been set up, but who realized that he could not totally deflect the momentum of government perfidy regarding her case, did the next best thing: he delivered a sentence only a fraction of the length the government demanded. The government, in fact, had hoped to see the 70-year-old Stewart serve at least 30 years, while U.S. District Court Judge John G. Koeltl , in 2005, delivered a sentence of only 28 months. Stewart appealed, but so did the government, and after a review of the case that took several years, the U.S. Court of Appeals for the Second Circuit last month ordered Koeltl to re-sentence Stewart, based on the government's contention that she had lied to the jury and that her acts were carried out by a misuse of her privileges as an attorney. A review of her sentence is scheduled for tomorrow, December 2, and it is generally expected that some time will be added to the original sentence.

But the fine print in the Second Circuit decision is worthy of note. The majority opinion states that, in addition to charges connected with alleged perjury and misuse of her position as an attorney, "[u]pon re-sentencing Stewart, the district court may consider, or reconsider, any additional matter that may bear upon Stewart's sentence."

Justice Guido Calabresi, who wrote a second supporting opinion to the majority, noted that both Abdeen Jabara and former U.S. Attorney General Ramsey Clark, Rahman's other two attorneys, also violated prison rules that proscribed their shuttling messages between Rahman and his followers. In fact, Clark, like Stewart, communicated Rahman's opinions to the press. Stewart charged that the government selectively prosecuted her, the proof being that Jabara and Clark were not cited for carrying out similar behavior. The circuit court denied Stewart's appeal on that point, but Calabresi thought there might be other ways of righting what has the appearance of a bias against Stewart. "[T]hough Stewart's selective prosecution challenge fails, it does not follow that the alleged misconduct of Jabara and Clark....is entirely irrelevant to Stewart and to her sentence," said Calabresi. "I think it possible that it is relevant..."

"[W]hile prosecutorial discretion may be salutory in a wide variety of cases, 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 continued. "The district court's exercise of its sentencing discretion may provide the only effective way to control and diminish unjustified disparities."

Depending on how seriously Judge Koeltl views the fact that Jabara and Clark escaped prosecution after carrying out behavior for which Stewart was cited, behavior that, in fact, may have indeed paved the way for actions that Stewart would not have otherwise considered taking, Stewart's new sentence may indeed be a bigger disappointment to the government than the one the court initially delivered.

Whatever Koeltl ends up doing, it appears the Second Circuit will have to review the new sentence after it is delivered. But if the same justices are to decide, the evidence indicates the majority would be inclined to support whatever Koeltl chooses to do.

Thus, prosecutors may end up with big-time egg on their faces for trying to unload on a famous activist attorney, wife, mother and grandmother. A reduced sentence would be a long-overdue check on prosecutorial abuse of power, particularly in relation to the spate of bogus terrorist cases that have arisen since 9-11.
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