By NSJ Staff Writer

On November 17th, the Court of Appeals for the Second Circuit affirmed, but remanded for re-sentencing, the conviction of Lynne Stewart for activities arising out of her representation of Omar Abdel-Rahman, the “Blind Sheikh.”

Abdel-Rahman and nine of his followers were convicted in 1995 of conspiracy to bomb several New York City landmarks.  Ms. Stewart represented Abdel-Rahman at his initial trial and continued her representation after his incarceration.  In 1997, the Bureau of Prisons initiated Special Administrative Measures (“SAMs”) forbidding Abdel-Rahman from communicating with anyone other than his legal advisors.  As part of these SAMs, Ms. Stewart was required to sign an oath that she would not facilitate contact between Abdel-Rahman and the outside world. Despite these measures, Ms. Stewart, in 2000, informed a Reuters reporter in Cairo that Abdel-Rahman had withdrawn his support from a ceasefire between the Egyptian government and Gama’a Islamiyya, the terrorist organization to which he had ties.  In addition to disseminating this information, Ms. Stewart  pretended to engage in a three-way conversation with Abdel-Rahman and her translator, Mohammed Yousry, to prevent guards from detecting the translator’s delivery of information to Abdel-Rahman.

Ms. Stewart was indicted in 2002, but the initial charges were dropped and a superseding indictment was issued in 2003.  She was convicted in 2006 and sentenced to 28 months in prison, despite a United States Sentencing Guideline range of 360 months, and was permitted to stay out on bail through her appeal.  The appeal was heard on January 29, 2008, but not decided until this month.  A time-line of the events may be found here.

Among other claims, Ms. Stewart claimed that she released the information despite the existence of the SAMs as part of her “zealous representation.”  While the trial court noted that she “abused her position as a lawyer,” the Second Circuit seemed to give her professional misconduct even greater weight, dedicating Section 3.b of the opinion to “Stewart’s Abuse of Her Status as a Member of the Bar.”  It noted:

Stewart’s actions tended ultimately and ironically to subvert the same fundamental right of which she took advantage–the constitutional right to counsel–by making it less likely that other incarcerated persons will have the same level of access to counsel that her client was given. . . .  The district court did not address whether Stewart “abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense,” meriting a two-level enhancement under the Guidelines. . . .  The court did not . . . explain how and to what extent the sentence reflected the seriousness of the crimes of conviction in light of the fact that Stewart was engaged as a member of the bar when she committed them.  The question therefore remains whether, because she was an experienced and dedicated lawyer acting as such when she broke the law in the manner that she did, her punishment should have been greater than it was.

Some question the timing of this decision, coming shortly after the announcement that Khalid Sheikh Muhammad would receive a civilian trial in New York City.  They fear that these kinds of actions against attorneys who represent terrorism defendants may chill their ability to represent their clients.  Others have used this case to highlight the dangers associated with granting civilian trials to terrorist suspects in the first place.