Shocked conscience: the case of Lynne Stewart

The case of Lynne Stewart continues to cast a dark shadow over civil liberties in the US, writes author.

Supporters of activist attorney Lynne Stewart gather near Federal Court Thursday, July 15, 2010 in New York [AP]

When Lynne Stewart was charged with material support for terrorism in 2002, many in the US population were shocked by the spectacle of a prominent civil rights attorney being criminalised for doing her job. At that time, the arbitrary application of terrorism charges was as unconscionable as the notion of dropping bombs on a civilian population in Iraq—actions that mobilised a robust–if fleeting– anti-war movement. However, just as the movement against the Iraq war was drained of its vibrancy in the wake of the “Anybody But Bush” campaign of 2004, outrage at the relentless assault on abuses against civil liberties and the expansion of the War on Terror has waned.

Lynne Stewart was subsequently not only indicted, but also convicted and sentenced, at the age of 66, to ten years in prison. Now that the Supreme Court has been given the opportunity to consider Stewart’s case, it is important for us to also review her story that has all but disappeared from media attention and the public eye. 

A month ago, only a few days after she submitted a petition for review to the Supreme Court, Lynne Stewart began chemotherapy for breast cancer. Now seventy-four years old, Stewart has been incarcerated for the past four years at Federal Medical Facility in Carswell, Texas after being convicted of providing “material support” to a terrorist organisation. That “support” consisted of speaking to the press.

Stewart’s breast cancer has metastasized to her lungs and her bones. She receives all medical treatment and most significantly, chemotherapy, in shackles. According to the regular updates on her website, Stewart is transported to a medical center in Fort Worth, Texas while tethered in leg irons, belly chains and handcuffs.

“Imagine getting chemotherapy while shackled to a bed. Imagine going to a hospital and getting a CT scan while in shackles,” said attorney Jill Shellow in my recent interview with her. Shellow has represented Stewart since she was indicted in April 2002 by then-Attorney General, John Ashcroft–who announced the charges while standing in the “ashes of the World Trade Center.” 

The basis for the case against Stewart, a longtime attorney and tireless advocate for poor, underprivileged and unpopular defendants, was widely decried by those concerned with protection of civil liberties. However, what was unthinkable to the sensibilities of the time portended what has become the norm: the unjust zeal with which the Department of Justice continues to pursue allegations of “material support” for terrorists and the influence the “war on terror” has on the American courtroom. And, a decade after Stewart’s case began there is no sign that that chilling trend has been reversed, challenged, or even slowed. “I had high hopes for [the Obama] administration that have been repeatedly dashed. I’m extremely disappointed,” Shellow stated.

The “material support” Stewart allegedly provided was to an Egyptian organisation opposed to Hosni Mubarak that had been placed on the US Treasury’s list of Foreign Terrorist Organisations in the 1990’s, the Islamic Group. In June 2000, while representing her client, Omar Abdel Rahman, also known as the “Blind Sheikh”, Stewart informed Reuters Press that Rahman had withdrawn his support for a ceasefire brokered between the government and opposition groups in Egypt

Under normal circumstances such a statement–uttered by either Rahman himself or Lynne Stewart–would be considered protected speech under the First Amendment. However, the Blind Sheikh was not being detained under normal circumstances. Held in total isolation and subjected to Special Administrative Measures (SAMs), Rahman was denied the ability to communicate in any way with the outside world– including his family and lawyer. Of significant note, due to these extraordinary restrictions Stewart had only six encounters with her client between 1996 and 2001. Furthermore, in order to represent Rahman and be in compliance with SAMs, Stewart was required to sign an agreement stipulating that she would not disseminate or transmit any of his words to the public. 

Thus Stewart did violate the SAMs agreement when she relayed Rahman’s statement to the press. Elaine Cassel, a professor of law who wrote about the case as it unfolded between 2002 and 2006, explained in 2005 (after Stewart was found guilty) her reasoning behind her decision to contravene the SAMs: 

“The ABA’s Code of Professional Conduct demands zealousness of lawyers. It also mandates that lawyers make their services available to unpopular causes… Through… the news release, [Stewart’s attorney, Michael] Tigar maintained, Stewart was trying to keep her client’s case before the public and the government, and ultimately hoping to gain his release to Egypt.” 

In other words, this was Stewart’s attempt to fully and zealously advocate for her client by combating his total isolation and disappearance from the public.

Writing in The Nation around the same time, constitutional lawyer and professor, David Cole, condemned the verdict, while also conceding that Stewart had “crossed the line from zealous advocacy to wrongful conduct.”

Regardless, the “wrongful conduct”, i.e., the breach of SAMs, was an administrative infraction only, and Cole points out that such a transgression should lead to a simple warning, a prohibition on visiting her client or, at most, disciplinary charges before the bar. However, Stewart was charged with material support for terrorism. 

The material support law, as established in the 1996 Antiterrorism and Effective Death Penalty Act, does not explicitly count speech among the ways in which an individual can criminally support terrorism. However, since 9/11 the government has sought to subject otherwise lawful speech to criminal penalty, as in the case of Stewart. When Stewart’s verdict was passed down in 2005, commentators—including Cole—remarked that the case indicated just how “out-of-control” the “war on terror” had become. And as we know, it has only gotten worse. 

In 2010, the Supreme Court’s ruling in Holder v. Humanitarian Law Project the Supreme Court would endorse the notion that lawful speech could become criminal if it was knowingly coordinated with a “foreign terrorist organization”. In 2012, Cole wrote that this case was the “first decision pitting First Amendment rights against national security interests since the terrorist attacks of September 11, 2001.” Cole wrote that, “the Court appears to have radically departed from some of the First Amendment’s most basic principles, including the maxims that speech may not be penalised because of its viewpoint, that even speech advocating crime deserves protection until it constitutes incitement, and that political association is constitutionally protected absent specific intent to further a group’s illegal ends.”

While the Holder decision was a significant loss for the First Amendment, Stewart’s current petition provides an opportunity for the Supreme Court to address an important issue it left unresolved and mitigate the extent to which the ruling criminalises speech. The petition asks the Supreme Court to affirm that “independent” speech–speech that is not coordinated with a terrorist organization–is protected, “even where that speech might indirectly benefit a terrorist organisation”—thus bringing the Court’s opinion in line with what Cole described as the basic principles of the First Amendment. 

Sentencing with a Shocked Conscience

Today, Lynne Stewart has served four years in prison, almost double the time she was originally sentenced. In sentencing Stewart to 28 months, Judge Koeltle’s had considered her lifetime of exemplary work representing the powerless and commended her service to the nation. The state had called for a sentence as harsh as 40 years, and Stewart’s family and supporters experienced unadulterated relief when her sentence was handed down. Speaking on the steps of the courthouse, Stewart praised and expressed gratitude for the judge’s decision and spoke of the two-year sentence with her characteristic good humour and pluck, “as my clients have said to me, I can do that standing on my head.” 

However, in an unusual move, the government appealed the sentence and the Second Circuit Court of Appeals returned the case to Judge Koeltle’s courtroom with what attorney Shellow called an “unequivocal message” to extend Stewart’s sentence. One of the three judges stated that the short sentence was so unreasonable that the “shock-the-conscience” standard should be applied.

A legal rubric that has been criticized for its vague, arbitrary and subjective nature, the “shock-the-conscience” standard was originally invoked to protect individuals from the state’s breach of due process. The “conscience” was thus defined by the public’s sense of entitlement to due process and freedom from abuse of power. However, in Stewart’s case, the Court of Appeals inverted its use to advocate for longer sentencing and defend the government’s broadening scope of authority amidst the “war on terror”. 

In reviewing Stewart’s original sentence, Judge Cabranes wrote in February 2010, “If there was ever a case that afforded the opportunity to further develop the ‘abuse of discretion’ and ‘shocks the conscience’ standard…it was this case where the District Court sentenced to only 28 months in prison a member of the bar who aided a particularly nefarious and notorious terrorist to continue pursuing his deadly objectives.”

Five years earlier, the Office of Legal Counsel had penned the now infamous memo that argued the CIA’s “enhanced interrogation methods” were not unconstitutional and did not contravene UNCAT because they did not “shock the conscience”–since the agency was merely furthering “the Government’s paramount interest in protecting the Nation.”

The “conscience”–once meant as the individual’s right to freedom from abuse by the state, and to stand as a check on the government’s power–is now subordinated to and subsumed by the government’s “war on terror”. Our complacent acceptance of the implications of this scuttling of the rubric’s initial intentions amply and starkly demonstrates that the American conscience appears to have been shocked into numbness.

And if the image of a 74-year old woman receiving chemotherapy in shackles doesn’t shock a nation’s conscience, perhaps the damage is irreparable.

Charlotte Silver is a journalist based in San Francisco and the West Bank. She is a graduate of Stanford University. 

Follow her on Twitter: @CharEsilver