February 14, 2005 | National Review Online
Lynne Stewart & Me; Justice and Sadness
Justice and sadness.
Maybe she’s just bipolar.
I've had this queasy feeling in my stomach ever since I learned, back in 2002, that my old Office — the U.S. Attorney's Office for the Southern District of New York — was about to indict the so-called “civil rights attorney,” Lynne Stewart. Not queasy over the subject matter. The charge was going to be that she gave material support to terrorists, and that shouldn't give any of us pause — if you help terrorists kill, you should be gone. Nor was I queasy over doubt about whether she was guilty. Lynne was like a moth, and the raging fire she would not pry herself away from was Omar Abdel Rahman, the “Blind Sheikh” at the epicenter of militant Islam — one of the most sinister and deadly people on the Planet Earth.
No, I was queasy for the most basic of reasons. I like Lynne Stewart.
For over a year, beginning in 1994, I spent a significant chunk of nearly every single day sitting near her in a crowded courtroom, meeting with her, chatting on the phone with her — nights, weekends, holidays, you name it. There really was no choice in the matter for either of us. I was the government lawyer in charge of a prosecution against a dozen members of a jihad organization that had bombed the World Trade Center and then planned simultaneous attacks against several other New York City landmarks. She was the chief counsel for the lead defendant, the aforementioned Blind Sheikh, the catalyst of Islamo-fascism's war against the United States.
The trial took nine months, with many additional months of hearings both before and after. Thus, even two people in our relative positions who despised each other would simply have had no alternative — they'd have had to suck it up and deal. But we were very far from despising one another.
Don't get me wrong. I do despise what Lynne represents. To hear the media's “civil rights lawyer” tag monotonously attached to her name is Orwellian to the point of inducing dysentery. In America, we have an ingenious constitutional framework that promotes unprecedented economic and social freedom, not to mention nigh-uninhibited human creativity. It is rightfully the envy of the world. It is the fortress that safeguards all civil rights worthy of the name. And … it is the system that Lynne Stewart, in her hallucinogenic adulation of bloody revolution for the sake of nothing more than revolution (and its attendant idol worship of monsters like Mao and Stalin and Castro and, of course, Abdel Rahman), would supplant. Thus, it's been impossible to read the fawning pro-Stewart coverage in the New York Times for the past two years and not wonder whether either the newspaper or Lynne understands that if the causes they promote ever actually achieved their ends, the very first thing the new regimes would do is shut down useful idiots like the New York Times and Lynne Stewart.
But none of that changes the maddening part of the equation. To the extent all that rah-rah coverage — and the Times is far from alone in this — has repeatedly extolled Stewart's good-hearted, grandmotherly manner, it is not wrong. Indeed, when my own grandmother died in the midst of one of the trial's most contentious moments, no one was kinder or more solicitous than Lynne.
By then, I wasn't surprised. All I had known about her when she first entered the case in autumn 1994 was her reputation for self-conscious association with radical causes, and her connection with fringe Lefties like the deftly engaging team of Bill Kunstler and Ron Kuby (her predecessors as the Sheikh's counsel) and the loopy former U.S. Attorney General and terrorist-guy-Friday, Ramsey Clarke (her co-counsel). What I learned in the ensuing months was interesting. Yes, Stewart's reputation was all too true. But it made progressively less sense as I got to know her better. In her public pronouncements, she was a true believer. These, moreover, no doubt echoed in the chamber of the brain where self-image resides: In some epistemological fog she had surely convinced herself that American capitalism was the root of all evil, and that unvarnished revolution was a social good no matter what impelled it. But in her private, professional behavior, she was the very antithesis of an anarchist or a revolutionary.
Much to my surprise, she was a pleasure to deal with. Sure, she did some infuriating things that prosecutors expect defense lawyers to do and then get mad about when they do them. She filed motions well out of time, she held back required disclosures about witnesses she planned to call in the Sheikh's defense, and she occasionally tried the case in the press which is a major no-no in a jury trial. But, frankly, I had steeled myself for a barrage of these shenanigans, and they turned out to be comparatively infrequent. The reason for this, it turned out, was that Stewart actually believed in the trial process — notwithstanding that it is a quintessentially American process.
Unlike many “activist” lawyers for whom the very notion of negotiating with the government is treasonous to what passes for their belief systems, Lynne was eminently reasonable and practical. She was open-minded about agreements (“stipulations” in the lexicon of litigators) that would narrow the case down to the matters that were actually in dispute. When she gave her word on something, she honored it — she never acted as if she thought one was at liberty to be false when dealing with the enemy.
One might think this was just commonsense rather than ethics. Lawyers, after all, are well aware of the often heavy price to be paid with the court if they are caught being dishonest. But I never thought this was the case with Lynne. I always had the sense that, even though I was for her present purposes the embodiment of the enemy, it mattered to her what I thought about her personal morality. In point of fact, I thought it was crazy quilt. I couldn't square the lawyer who so amiably conducted herself within the rules with the rebel who so ostentatiously sought to supplant the rules. All I knew, though, was that when she made a representation to me within the four-corners of a very long and combative trial, I thought I could take it to the bank. In twenty years, I have known too many adversaries about whom that could not be said.
Perhaps that's why I can feel justice but no joy is seeing her brought low. The worst part, for me, is the revelation that lying to the government was at the core of her crimes. In order to get into the jailhouse, she gave her word that she needed access to the Sheikh for one purpose, viz., to provide legal assistance, and then willfully carried out a far different purpose: viz., to enable Abdel Rahman to continue influencing the barbaric Egyptian terror organization which assassinated President Anwar Sadat for making peace with Israel, sought President Hosni Mubarak's murder, savagely slaughtered nearly 60 tourists in Luxor as an extortionate demand for the Sheikh's release, and has sedulously busied itself toward toppling the secular government for a quarter century.
These were bold-faced, nefarious lies. To the profession of lawyering, they should be seen as lies of the most despicable kind. For Stewart later claimed that her mendacity was excusable as a part of zealously representing a client. What she did, however, formed no part of what an attorney does.
For that reason, much of what is being said by defense lawyers in the wake of her conviction is welcome — and much, regrettably, is ridiculous. Being a defense lawyer for an accused person, even the most universally reviled accused person, is a most honorable and necessary endeavor in any society based on the rule of law. In the eyes of the trial court, a defendant stands innocent of charges until a jury finds otherwise beyond a reasonable doubt. It is the constitutional mission of defense counsel to ensure, with all their considerable skill and passion, that this accused gets the full benefit of every advantage and every doubt to which our system entitles him.
But that is to say, every advantage and every doubt within the rules. As some of New York City's most distinguished defense professionals explained to the Times after Stewart's conviction, there are lines between proper advocacy and misconduct, and they are well known. Here, Lynne was so far over them that, to be blunt, it is insulting for her and her allies to suggest otherwise. Yet, they thoughtlessly cavil about a Justice Department witch-hunt against lawyers who take on the defense of the most repulsive criminals and terrorists. It's blatant nonsense — and they know better.
The Sixth Amendment guarantees counsel to an “accused.” When Abdel Rahman was actually an accused, from 1993 until 1996, he was the recipient of exquisite due process — including three lawyers and publicly-subsidized legal and investigative assistance. The government never came close to interfering in any of this. After he was convicted and sentenced to life in prison, the succeeding three years brought Abdel Rahman's appeals to the court of appeals and the Supreme Court. Again, numerous lawyers convened with “his holiness” as needed, and they filed voluminous briefs on his behalf. The appeals were rejected. At that point, his conviction was final. He was no longer, in any sense, an accused. He was no longer presumed innocent. He was a duly convicted terrorist who had a unique, authoritative stature among America's enemies.
Nonetheless, in our generous system, he was still permitted access to counsel (although not a right to have the public pay for it). For a time, those lawyers were empowered file what's called a “collateral attack” if they could come up with some argument that Abdel Rahman's fundamental rights had been violated during the trial. They never did that. They could also have challenged the conditions of his confinement, but to do so would have been specious — this ward, with his many maladies, is among the most conscientiously cared for. Beyond that, the Sheikh didn't need legal services anymore.
Because he is evil, what he needed and wanted were co-conspirators to help him stay relevant in the high councils of jihadist terror. That's what Lynne Stewart agreed to be. That's not lawyer-work. And that's what the government interfered with. For attorneys currently representing accused terrorists to pretend that the Stewart case forebodes ill for their ability to function as traditional defense counsel is hollow posturing.
Ironically, the Lynne Stewart I knew expressed no such reservations. Once, in a break in the action, I found myself in conversation with her, us both leaning on the rail along the jury box. I don't remember now exactly what precipitated it, but we were talking about how cases get settled and whether this one ever would. She pointed into the jury box — all empty seats at the time, but her gesture had me imagining our diligent jurors sitting there — and she said she had faith that the best thing to do was to get the dispute into the hands of “these good people” and let them do the job we had chosen them to do. In all those months, I never thought she had an argument that would actually persuade those good people to see things her way. But the sentiment could not have been more right, and the way she expressed it could not have seemed more sincere.
Ten years later, that's how I prefer to remember her. I would see or hear from her from time-to-time after the jury convicted Abdel Rahman, and it was always the same: friendly, gracious, never a hint of raging against the machine, even though she was the public personification of rage and I an enthusiastic proponent of the machine.
There is something wrong with Lynne's brain. Obviously, she loves being a darling of the loony Left — a Left so loony it now makes common cause with theocratic, homo-phobic, misogynistic psycho-killers, since, after all, they too hate America. Nestled among this element, her humanity synapse disengages, such that she can spout about faraway terrorist kidnapping victims and other unknown civilians as legitimate targets with all the contemplative depth of a dinner companion asking you to pass the salt.
But she is not without humanity. What has happened to her here is very far from a tragedy — a tragedy is when someone unwittingly crosses the path of Abdel Rahman's ilk and is ruthlessly murdered for the great offense of being an American, or a Jew, or a Christian, or anything other than an Islamic militant. This is what Lynne Stewart promoted, and for that she must pay dearly. At 65, it may mean she pays with the rest of her life. Many will understandably celebrate that. I will pray she perceives that she has done enormous harm, and that the real civil rights she might have honored are those of the innocent victims of terror.
— Andrew C. McCarthy, who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others, is a senior fellow at the Foundation for the Defense of Democracies.