October 16, 2006 | National Review Online

Sentencing Day Arrives for Lynne Stewart

The radical attorney Lynne Stewart is scheduled to be sentenced in Manhattan today on her 2005 conviction, after a lengthy trial, for providing material support to terrorism. 

As previously discussed here, Stewart was lead defense counsel in the 1995 prosecution against Sheikh Omar Abdel Rahman, which I had the privilege of leading. A decade later, with the blind sheikh serving a life sentence, Stewart was found guilty of helping him continue to communicate from federal prison with his savage Egyptian terrorist organization, the Islamic Group (Gama'at al Islamia).  Stewart, now 67 and recovering from breast cancer, faces as many as thirty years in prison.

The New York Times preview this morning is interesting.  I spent a long time on the phone Friday with the reporter, Julia Preston, explaining why, regardless of my personal fondness for Stewart, I think a stiff sentence is warranted.  Obviously, that view does not fit the Times' template of opinion in the legal community.  Though Ms. Preston opted not to quote me, she writes: “[M]ore than 400 letters [Stewart] submitted to Judge Koeltl about her sentence include many from law professors and criminal defense lawyers who said that her actions never caused actual harm and warned of a chilling effect on lawyers who defend terrorists if she receives a long sentence.”

These points are meritless.  Our national counterterrorism strategy now is to prevent terror attacks from happening, not to prosecute them after people have been killed.  Under the circumstances, it is no defense for those who knowingly assist organizations that practice indiscriminate murder to claim that no one ended up getting hurt — the whole point of the strategy is to disable the accomplices so no one does get hurt. 

Moreover, as I tried to point out (in obvious futility) to Ms. Preston, Stewart's conviction does not pertain to what she did while she was actually defending the blind sheikh.  The government has always been extremely deferential to the needs of attorneys representing accused terrorists as they prepare for trial, conduct trial, prepare for sentencing, and draft any appeals.  The acts on which Stewart's convictions were based took place long after Abdel Rahman's trial and sentencing, long after his appeals were rejected, and well beyond the time allotted for filing habeas corpus petitions to attack his convictions.  When she was indicted, Stewart was not performing the function of a lawyer defending a terrorist; her prosecution thus portends no interference with lawyers engaged in the zealous representation of criminal defendants.

Interestingly, the Times did opt to quote from a letter submitted to the sentencing judge on Stewart's behalf from Jo Ann Harris, the Clinton Justice Department's Criminal Division chief at the time the blind sheikh was indicted. (The indictment, by the way, came in 1993, not, as the Times reports, 1994; nor, despite the Times' claim, did Ms. Harris “authorize[]” the indictment; though Harris was consulted, the indictment was actually authorized by Attorney General Janet Reno and Manhattan U.S. Attorney Mary Jo White.)

According to Preston's article, Harris has told the judge that the terrorism counts against Ms. Stewart were “unwarranted overkill.”  Harris reportedly elaborated that Stewart “didn't have a clue that the stick she was poking in the government's eye was going to have consequences beyond her imagination.”

Counterterrorism, of course, remains the central national security issue as we head into the 2006 elections, with 2008 choices hard upon us after that.  Thus, it is very much worth noting the stark contrasts here.  The Bush Justice Department strongly believed that Stewart's behavior warranted the strongest condemnation.  A jury of twelve New Yorkers — not exactly the Red State heartland — unanimously agreed after hearing all the evidence.  Still, one of the highest Clinton Justice Department officials evidently thinks the whole thing was “overkill.”

The contrast is starker still.  Recall that President Bush, through Attorney General John Ashcroft (and no small amount of teeth-gnashing from the Times and the Left), adopted a “spit on the street” approach to terrorism — authorizing suspects to be locked up on any available, legally valid charge, in order to disable them and convey to terrorist groups that we were pursuing them aggressively.

Compare President Clinton, who has spent a lot of time lately defending his national security record.  (See here, here and here.)  In 1999, he pardoned 16 members of the FALN terrorist organization which, as Investors Business Daily editorialized last month, “carried out more than 150 bombings in the U.S., including the lunchtime bombing of Fraunces Tavern in New York on Jan. 24, 1975, that killed four.”  (Former Clinton advisor Dick Morris has indicated that this was done to help then-First Lady Hillary Clinton win the votes of Puerto Ricans in the anticipated New York Senate race.) 

On January 20, 2001, moreover, Clinton's very last acts in power included pardons for two convicted Weather Underground terrorists, Susan Rosenberg and Laura Sue Whitehorn.

Lynne Stewart is a figure who straddles the September 10 and September 11 worlds — the divergent Clinton and Bush counterterrorism models.  As the lead-up to her sentencing shows, it matters a great deal which model we choose.

 — Andrew C. McCarthy is a senior fellow at the Foundation for the Defense of Democracies.