The RW interview

Lynne Stewart: Then They Came for the Lawyers

Revolutionary Worker #1275, April 24, 2005, posted at rwor.org

RW: First of all, we want to express to you on behalf of the paper and our readers our admiration and our support for the stand that you've taken and the courage you've shown in the course of this whole struggle.

I know many people kind of shuddered when they heard the news of your conviction, and there was this sense that something major had just happened and that what are supposed to be the legal norms in this country had just taken a big hit. What do you see as different in the legal realm "the day after"?

Lynne Stewart: Well, I see that there is a new view, or we must take a new view, of whether or not anyone who has been demonized with the "T" word can receive a fair trial. I think that the verdict showed that perhaps this is a fear that a jury cannot get over. I don't want to distrust juries, because I think that the system itself is a viable system. To bring together 12 strangers to hear your side and their side and then communally make a decision has some merit to it. But it doesn't have merit when those people have been engraved upon—not just written upon—but engraved upon by the media—by, as somebody put it to me, 30 years of television, and they go in with a fixed agenda, or a fixed idea, where the government is able to lead them. I think that if anyone had told us, even 10 years ago, that torture would be acceptable, that the American people as a whole would say, "Oh, it's okay to do that now," well, we would have thought that would be remarkable. We would not probably have believed that. And I think the verdict in my case sort of stands for the same kind of fear, which of course is orchestrated by the government. And people do march to that drumbeat.

RW: Defending political and demonized defendants has been your life's calling, as well as defending the right of defendants to even have a defense. What has your conviction and your being disbarred meant for you personally and for your clients who have been depending on you?

Stewart: It is the most difficult thing for me every morning to drive past One Hundred Centre Street (which is the criminal court here in New York City) and to see the lawyers and the defendants going in and knowing the world they go into, and what is going on, and not having a case ready for trial, or being investigated, or being bargained out.

Not to be part of that life after 30 years is the most difficult thing for me. It caused me the most tears, more than anything else. I said to my husband, Ralph, the other day: You know it comes with the good side, of course, and the good side is, now I'm free to do nothing but organize people around my case and around fighting back and making people aware.

I feel for the people I represented that now are casting about for new lawyers. I purposely did not have a lot of cases on the front burner; a student from City College, who had been wrongfully arrested for protesting against budget cuts, a Black woman whose son had been murdered by the New York City Police Department (and amazingly that same police department comes to her home and arrests her in her bed for criminal trespass). These were two cases that were on my front burner to try when I was acquitted. Now those folks are probably going to be working with my son, Jeffrey, who is also a criminal defense lawyer and who has taken on the cases.

But my own sense of loss is over not being able to defend those, and the many others that are out there that I don't even know about who might have or could have come to me. It is a big blow to not be "the lawyer."

People come up to me, or stop me in the street and they'll say, "Are you 'the lawyer'?" I'll say, "I'm the lawyer. I'm the one." They'll say, "I thought you were." So not being "the lawyer" anymore is a blow. It hurts.

RW:There were some pretty shocking intrusions into what are supposed to be your confidential conversations with your client. Could you give a description of just how intrusive the surveillance the government did was?

Stewart: The proof at trial was based on over 75,000 wiretapped conversations which were seized from my co-defendant's telephone line, Internet line, e-mails, and fax line. That was Ahmed Sattar—he had been an outspoken critic of the Egyptian government, which of course has been criticized by many human rights organizations.

These seizures were done under the Foreign Intelligence Surveillance Act, commonly known as FISA. The FISA court never saw a warrant it didn't like, and signed on to absolutely everything. They surveilled him from the years 1994 to the year 2002. And I'm talking about everything. There was no minimization, like taking out the call to the psychiatrist or the call to the doctor. Everything was taken.

As bad as that was, nowadays, if people want to understand the extent to which civil liberties have eroded, now all that would be necessary for an equally broad wiretap authorization would be a signature of the Attorney General. Under the Patriot Act, he may authorize such a widespread invasion of privacy, merely because he suspected there to be a security problem.

We litigated that in part, but of course it was not a tap on me—I was never a target, they did not tap the phone in my office or at home. But I have very little doubt that were this to happen at this point, they would do that.

I do think this is a wholesale invasion of which we have to be very conscious, because it no longer requires really anybody to approve it, except those people who are making all the rules and are passing "legislation" to suit their own aims.

RW: But they did record your conversations with your client. What is the significance of lawyer-client confidentiality?

Stewart: I think it goes to the core of the way we represent persons accused of crime. And also to the core, if you will, of political persons who are criminalized by the government. When I say that, I mean we enjoyed for all of the years of the Constitution's life a privilege which said it was in the best interests of the state and the people to allow lawyers and their clients to discuss cases confidentially. In other words, they can tell their darkest secrets, and the lawyer can advise based upon knowing the full story of what is happening to this human person whose life is really placed in your charge. This changes all the rules.

And remember, this was a conversation listened to in a jail, where a person is certainly in a situation where there are no viable alternatives. It wasn't like we could say, "Let's go out and get a cup of coffee" and discuss this. If a person can't be discreet in the sense of being able to say everything, it really changes the landscape remarkably. I always like to use this example: Suppose there was an eyewitness for a person accused of a crime, and suppose that eyewitness was someone that law enforcement or the state could get to fairly easily and intimidate. Would you really want to tell your lawyer about that eyewitness? On the other hand, could you not tell the lawyer? These are the kind of practical problems. It seems to me it goes to the foundation of being able to vigorously and ably represent. Because if you don't know the entire panoply of this person's concerns, you cannot really advise them adequately.

The other thing they did, of course, is they searched my office. Thinking that these were sacred precincts, what of what one put in notes and slipped into a file? This now raises concerns not just of the person who is listened in on, but raises a bigger question. Can you afford to go to a lawyer such as me, or such as Bill Kunstler, or such as Clarence Darrow who made a practice of representing the demonized, if the government is likely to vamp on that lawyer, come into their office, spend 12 hours searching, take their hard drive, and thus find out not only about the client that may be the point of information, but also all the other clients you may have? Someone said to me, it's not just a "chilling effect"—that's what we say in legal terms—this is really sub-Arctic, this is the deep freeze, of constraining lawyers in particular. And of course we all know that this administration specializes in constraining of lawyers.

One of the things that came out was when we asked for an assurance that they would not be listening to us during co-defendant meetings...

RW: During your trial?

Stewart: Pretrial and during the trial. Anyone who has ever been involved in a political trial knows that the meetings among co-defendants to discuss strategy, to look back on 10 years of events and try and interpret them—to say to someone "what did you mean when you said that?"—is really crucial to the preparation of the case. They refused to assure us that we would be able to meet privately! They assured us that there would not be certain wires—that there was no court-ordered wire tap. But they were not able to assure us that we would not be surveilled under the Patriot Act or some other construct. And so, as a result, we had no co-defendant meetings, which I personally feel was a problem in the sense of having a unified defense.

RW: Related to your comment of "it's not just a chilling, but a sub- Arctic atmosphere," the government really pulled out all the stops to get a conviction in your case, with Ashcroft personally flying to New York to announce your indictment. How has the public opinion campaign against you unfolded? The government came up with this sound-bite that "this is about an attorney who crossed the line." It looks more to us like the line has been moved. How do you see this?

Stewart: It is an unfortunate analogy for them, and I hope we'll be able to turn it on them. Indeed, there was a line in 2000, and indeed there is a different line in 2002, and a different one yet in 2005. So if you start a game and the foul lines are at such a place, you rely upon that. And in this case when we made the press release in 2000, I relied upon the lines as they had been drawn at that point. What's more, my co-counsels Ramsey Clark and Abdeen Jabara likewise respected that line, and that line included press releases.

They [the govt.] wrote me a letter; they basically did not say, "We're going to arrest you, you're going to be indicted, we're presenting the case to a grand jury." They wrote me a letter in the year 2000, and said, "We're drawing up a different set of SAMS, ¹ and we'd like you to sign that before you are able to visit again." These [SAMS] are basically regulations that are like adhesive; you either sign them, or you don't get in jail to see your client.

So we all signed on. We all bartered with them as to what this language should be, but we all did sign on. Press releases were made after that date. So when I say it's not only moving the line—the government then only blew the whistle and called "foul" on one of the lawyers that they claim had crossed the line—not on the rest of the team. It's an unfortunate metaphor. It's seized upon by the criminal bar in particular, because we're all very self-conscious about the fact that, when you're working for criminal defendants, you have to always be very aware of a request by a client which may indeed aid the client's criminal enterprise.

For example, a client says to you, "Call my mother and tell her to shut down all the phones north of 96th Street." You're going to say, "I don't think I can do that; you'll to have to handle that yourself." But if the client says, "Call my mother, I'm in this jail, they won't give me my glasses, they won't give me my pills"—that's a different thing. That's not aiding his criminal enterprise. Unless, of course, the government wishes to characterize it as such. If they said, "Your helping him get his glasses is going to help him being a criminal," then it's really such an amorphous line they are talking about. But it's not one we're not aware of. Somehow or other, I don't think people are being genuine when they talk about me "crossing the line." They well understand that there are ethical considerations which make you do things in a way different than the government may define that line.

RW:A big part of this prosecution was to send a message to the legal community, and to society in general, that from now on certain people will not be accorded basic legal rights. What has been the response in the legal community to your conviction? Some seem to have been drawn into the "she crossed over the line" argument, but others seem to have been genuinely shocked into a realization of just how dangerous all this is and see the need to come to the defense of the very first lawyers who come under attack.

Stewart: Well, as we were walking down to this interview, a lawyer I didn't know from the Bronx, as he identified himself, said, "God bless you Lynne, I'm praying for you every day. It scares me to death what they did to you. It bothers me. I pray for you every day." I don't know this man, but this is not an unusual event.

Whether this person can be organized to do anything is the real issue before us with regard to lawyers. I, of course, had tremendous support from the Lawyers Guild. From day one, they were there for me, an outpouring of support. I just spoke this weekend to their Northwest group as they met, to tell them what my current situation is. And also the National Association of Criminal Defense Lawyers have been supportive and done an amicus, and I've spoken at their conventions. And others have spoken on my behalf. They understand how this shoe pinches, and the Guild obviously understands how this shoe pinches.

I think for most of the bar—the unorganized or the disorganized or the individualistic bar—they are scared, and like everyone else, they operate on some level of fear of "I don't want this to happen to me, this can't happen to me." So they are disinclined to ally themselves with me. It's easier to just take the government line, which is, "She went over the line."

But we are unstinting in our efforts to get the lawyers behind me. We think for this judge in particular, who really was a lawyer himself for all of his life, was a Watergate prosecutor, he wants to hear from lawyers what they think about the conviction. So we are very busily attempting to organize many lawyers and getting them to write what's on their mind.

But my sense from the people who've spoken to me—of course no one's going to be mean to me, I guess—the people who spoke to me, they definitely have expressed that they feel there is now some kind of hovering. That there's footsteps in the hallway behind them. That it's no longer the autonomy which was governed solely by the rules of ethics. It's now an encroachment by the government—as I said earlier—into the realm of decision making, into the realm of how best to defend a client. And that really strikes at the heart of the defense function. Because that's what we decide: "Do I defend this person? Am I raising all the issues and then go into trial? Do I try and make a deal for this person? Do I give up the search issue?" These decisions that we make day in and day out, now there's a third party sitting in on them. And that's what makes lawyers frightened.

However, and we always should be sensible of this, we tried to organize in New York what is known as the "white shoe bar." Those are the folks who basically do corporate work—and maybe this is too remote for them, but certainly the white collar criminal defense bar—and we were unsuccessful.

I think our lack of success stems from the fact that we're defending people from minority communities who were criminalized by economics, and we're defending political people who are criminalized because the state wants them criminalized.

They [the white shoe firms] are representing Halliburton, they are representing Enron, they're privileged to begin with. They don't feel they need that same degree of privilege that we do. They're not in the same position because their clients are part of the ruling class, to use a rhetorical term. Because they are there, they don't see the government attacking them in the same way they do a person like me—a person whose whole career has been dedicated to representing minority and political defendants.

RW:There are folks who are so much—as you characterize it—working for Halliburton that they identify their interest wholly with them. But would you see any lawyers, or even broader social forces, who actually see the whole legal rule structure getting changed, who would be concerned and see your case as a harbinger or greater danger to some long-held principles of theirs?

Stewart: I think that's true. When I say these things, they're more interpretive than they are specific. We have lawyers who do come from the realms of the corporate defenders and from other unlikely sources, and they do see it. Because they have a broader view of the law than just "how does this hurt me"—other than just their own self-interest. They do see it as something that impinges on the playing field, if you will. This is not the same thing as calling people before a grand jury and throwing them in jail when they refuse to answer. This is really going after the person who goes with the person to the grand jury, gives them the advice, tells them what the consequences could be or couldn't be.

We must understand, and I think a lot of people do, lawyers included, that this is a tactic of this particular administration. That they [the administration] understand that the lawyers play such a vital role that they're going to keep the lawyers away. We see it at Guantánamo, we saw it in the case of Jose Padilla. Even Moussaoui, who wanted to have his own retained lawyer that his mother was willing to pay for—and was denied that.

It does go hand-in-hand with torture. You can't torture a person whose lawyer is monitoring the situation. Who will raise the hue and cry. Who will go into a federal court with a writ. Who will do something about that. The lawyer is the bulwark against torture, as well as the protection of more ephemeral rights than those.

But this has been a concerted effort: distance defendants on all levels from lawyers, who are, of course, under the law required to defend.

RW : We were talking earlier about this book, Unholy Alliance [by the reactionary David Horowitz]. The premise of this book—and it's actually part of the currency out there right now where you have people like Bill O'Reilly talking about the "hate-America crowd"—there's this broad brush being used for anyone who stands in opposition to Bush and company. By their definition, such people are giving aid and support to "the enemy." And they do this by making a superficial chain of connection. While this is ridiculous on one level, its purpose is quite serious. There's a methodology in play, with a wide swath of people being established as "beyond the pale." How do you see your case fitting into this overall climate?

Stewart: You know it's interesting, the first day of my arrest, when I approached the bank of microphones and TV cameras and knew in my own mind how important it was to show sunlight, and bring light, rather than just the heat and energy of the government to the case, I said at that point, "The next thing they'll be doing is arresting the lady who cleaned the Sheik's jail cell." Because in effect she, too, was giving material aid to a terrorist.

That is sort of their position. And, of course, it's the same position, interestingly enough, that was used by Ashcroft to bully the Congress into passing the Patriot Act. "If you're not with us, you're with the terrorists." I don't have any doubt that part of what swayed the jury in my case was the sense that to render a different verdict might have made them look like they were "soft on terrorism." I'm sure that's the message the government gave them. That this is your role, this is what you can do.

So I think this is rampant. I also think it's part of, if I may say this, a fascist outlook. It's where all righteousness accrues to the state, and anyone who opposes the state is demonized.

How dare they say we are against America. We are for America. We are for the best side, the ideals, the things people died for. They're not for that. They're for the aggrandizement of monopoly. They're for the aggrandizement of the corporation.

This is linked together by saying, "She did this for him, so therefore she's the same as him." I always like to say this: I represented Sammy "the Bull" Gravano, a mob guy from Bensonhurst. I didn't become a racist Italian from Bensonhurst because I represented Sammy the Bull. What I did for Sammy was not to aggrandize the Mafia, it was to help the client. They can see those distinctions [in that type of case]. They refuse to see it in a political context.

RW: Obviously you are appealing your conviction, but how do you see taking this on more broadly in the decisive realm of public opinion? The government went after you precisely because you are one of those people on the front line who've been challenging them, and they want to make an example of you. What's your thinking on how we can turn this into a different kind of example—one they won't like?

Stewart: That is what I would like very much. And that is why I wanted a victory here so badly. Not just for myself, so I could continue my life, which of course is very important to me, but because I felt like we needed a victory. We haven't had a lot of victories. They [the government] have made a lot of mistakes with Arab defendants, but our movement could have used a real victory, and we weren't able to provide it.

"Is it a wake-up call?" someone asked me yesterday at Riverside Church. In the Sixties, we were able to be outraged and mobilize people. We were able to bring pressure to bear. Why can't we do it today? Why aren't we able to get that same level of outrage? I'm sure we all have answers for that. Thirty years of television is one answer. A media that is controlled and manipulated is another—with the exception of yourselves of course—is another answer. I don't have an answer to that.

I do believe that people thought "she won't get convicted," "they can't convict her," or "it can't happen here." Now that it did happen, there are more people who are more willing to do more. I think that's what we have to build on.

It's not going to come from raising a flag and then everybody follows the flag down the street. It's going to come from real grassroots organizing. People talking to people, people making people understand that this case is not about a personality. It really is about the bedrock of the Constitution, the Bill of Rights, the things that the government is prohibited from doing. The Bill of Rights was added to the Constitution because people demanded it. And it stands for "the government shall not encroach." If we can organize around that. If people can have a sense that they were instrumental in keeping me out of jail. If people can feel that we have some viability as a movement—and I say this given the fact I am well aware of the different doctrines and the different degrees the left occupies on the spectrum—but everyone has got to understand that this case is so important.

The lawyers must be there. The lawyers must be able to do their function. We know in every totalitarian regime the lawyers were the first to be arrested after the radicals. Without touting lawyers overly, I do see that as being very, very important—to protect the right of lawyers to defend. I do think we can organize around the sentencing. I am inviting the "exploitation of the Lynne Stewart case" for the purpose of organizing as many people as possible to get this judge to not give time in jail.

He has the option of giving up to 30 years. I have no question that the government will urge him to give me a guideline sentence, which under the terrorism law works out to around 18 years—it is in effect a life sentence for me. I think if we can organize people to fight against that to say this is outrageous, this can't happen here, it creates a climate in which even this judge will not feel comfortable betraying the principles upon which the law is supposedly based.

RW: You were saying that some folks say "it can't happen here," and here it has. In talking about your case, the RW has used the Martin Niemîller quote, "First they came for the communists..." How do you see what's happened in that light?

Stewart: I've said this many times, we know that we espouse truthful, but perhaps governmentally unpopular, opinions. We've always had a small cushion of reserve here, that at least if the government came after you, you could call a lawyer, and you could look forward to perhaps a moment when you would be publicly brought to court and your case would be heard by some magisterial person who could then set you free, but at least you would have "a day in court."

I say frequently to people, this means that the government would like to cut your phone line, so when you get the one call there's no lawyer out there to call. There's no lawyer that can come in and defend you, or would want to come in to defend you, that would want to risk coming in and defending you.

That is one of the most important things I think for us. And when I say "us," I mean we who are politically inclined, who have led the activist life. I'll never forget when an elderly man came up to me and said, "You know, I get arrested all the time. But I know one thing, the lawyers'll be there to get me out. I'm not going to be left in some dark dungeon, to live out my years, without ever seeing the light of day again." He said, "The lawyers will be there. But when I heard you got arrested, I said, oh, what is to become of me." And I think that is the question that should be asked, and I think it has to be answered very forcefully with a response that we're not going to let that happen.

RW: We hope that some day there'll be a liberated world where school kids will be studying about your case from the perspective of the dark but pivotal moment in history that it was. So just to trip out a little—drawing on your particular expertise, what do you think such a world would look like and how would you see the role of lawyers in such a society, one where people "freely associate," struggle, and strive, in the interests of all humanity?

Stewart: I certainly and absolutely believe in that day coming. I have always believed it, and I'm never going to stop working for it. A day when everyone is equal. When we all start at the same starting line. Whether we're impaired, whether we're of a different race, whatever it is, that we all start off equally, that we have the same opportunities. I don't see that happening without a takedown of this monopolistic corporate society, which has as its main motivation greed.

I do believe we must be a society in which—I don't want to be accused of being a Marx quoter—but in which the means of production and the products are all owned by the people. And that the people control what happens. Only in that way can we save the environment, only in that way can we have an education for our children that is realistic and which matters to them. Only in that way can we really go home at night and be safe. In this society people are driven by such fear. But it wouldn't be fearful, because we would not have enemies, we would live peacefully, we wouldn't have dreams of empire.

Also, I know that some of the communist/socialist models do not have an adversary system such as we have in the courts—that basically it is assumed that if the government has brought charges, it's true. I still think there's room for an adversary system. I think that sometimes even a benign and truly elected government can be wrong. And I would like to think that individuals could still get a lawyer who would present their case, whatever that case may be. Make sure, keep the government honest.

I do believe in protracted struggle. I think even were we living in a world where we achieved all our goals, we still have to understand that there's a certain necessity for human beings, for struggle, for—I don't want to say conflict, that's too hard of a word—where people engage in a test to make sure that the government is living up to its standards. I guess Mao called it a cultural revolution, but I think there should be struggle in each and every generation—no matter how widely attained our goals are. And I would want to live in that world. I would want my grandchildren to live in that world.