Roger Franklin: Defending the indefensible

No matter where you come down on America's foreign policy, George Bush or suicidal fanatics bent on mass murder, it's hard not to have at least a little sympathy for Lynne Stewart. At 65, an age when most Americans are thinking about retirement, the New York lawyer is contemplating the distinct possibility of spending the rest of her life behind bars.

And all because, two months ago, she was found guilty of doing what she has always done - representing people whose stated goal is the destruction of America and all it stands for.

Well, it's a living - and give Stewart this much, she has pursued it with zeal. Over the past three decades, she has defended the Weather Underground, ghetto cop shooters and a virtual army of rag-tag "urban revolutionaries".

But don't go jumping to conclusions. It's not as if radical ideology is her sole standard for getting involved. She'll represent just about anyone society considers to be beyond the pale. Folks such as Sammy "The Bull" Gravano, who proudly admitted to 21 gangland hits before the feds set him free for testifying against former boss John Gotti. Stewart picked up Sammy's legal work when he was arrested for dealing drugs to high school kids while in the Witness Protection Programme.

As Stewart would be the first to admit, old habits die hard.

Which is what has landed her in so much trouble. Back in 1993, not long after Muslim terrorists with a truck bomb first tried toppling the Twin Towers, she jumped at the chance to speak for the bombers' leader, Omar Abdel-Rahman, the Egyptian imam known to New York tabloid readers as the Blind Sheik.

Given Stewart's roster of clients, there was no way she was going to reject him. As she says, with the exception of Osama bin Laden, Rahman "is the most hated, the most vilified, the most reviled person in all America". To Stewart, he was irresistible.

When Rahman went down on all counts, Stewart filed an appeal and spent long days shuttling back and forth to the prison where he is serving a life sentence.

Nothing any committed defence counsel wouldn't do, right? After all, even the most loathsome specimens are entitled to the services of a dedicated, professional advocate.

"This was my kind of case," she says. "I have acted in the best traditions of lawyering in this country by representing someone who was hated, but representing him fairly and openly and vigorously."

That's not the way the US Justice Department saw things, however.

One morning in 2002, FBI agents arrived at her home and took her away in handcuffs to face a slather of charges, all of which can be summed up in a few words: more than a terrorist's lawyer, Lynne Stewart had become a terrorist..

Stewart, a tubby, moon-faced grandma with the sort of Noo Yark accent that peels paint off walls, couldn't believe what was happening.

"My God, we were just cleaning up the coffee cups from breakfast, and when they arrived my first thought was that they had come for my husband. He's a longtime community activist, so I thought, 'What has Ralph been doing to get the day started like this?' Then I found out, hey, they want me, and the surprise just floored me. It still does, but I'm coping now, fighting back."

According to the successful case prosecutors laid before the jury, she had used her prison visits with Rahman to relay his orders for a renewed jihad in Egypt. Sometimes - and the feds backed this with tape recordings made in the prison visitors' room - she prattled empty legalisms as a distraction while her translator took down the sheik's marching orders to his supporters. On other occasions, she openly relayed Rahman's thoughts in press releases.

One of those announced that the sheik wanted the resumption of guerilla attacks in Egypt, aimed at bringing down the government of President Hosni Mubarek. His edict's impact in the Land of the Nile? Zilch.

RAHMAN'S followers already knew of the Sheik's change of heart, which had been widely reported in the Egyptian press, and they had rejected his orders as counterproductive. Massacring tourists at places such as Luxor, where 58 foreigners were slaughtered in 1997, had cost tens of thousands of tourist-industry workers their jobs and prompted an anti-insurgent backlash.

More than three years after Stewart repeated Rahman's orders, his alleged followers still haven't heeded the call to arms.

To the feds, none of that mattered. By putting her name to the press release, she had violated anti-terrorism legislation instigated by Bill Clinton and enhanced by George W. Bush, whose Patriot Act extended law enforcement agencies' ability to snoop and gag.

Defenders argue that the Patriot Act does little more than bring a clarity and coherence to a hodge-podge of laws formerly used only against the Mafia and other organised crime groups.

That's true, to an extent. Now, for example, instead of needing a new court order every time someone like Tony Soprano changes phones, investigators can switch the bug without pestering a judge to reissue a fresh warrant.

But what of Stewart's crime of terrorism by press release? Well even in plummy legal circles where she and her incendiary clients would normally prompt not a shred of sympathy, there is concern.

"The Stewart conviction is a travesty," legal pundit Andrew Neopolitano wrote in a scathing New York Times opinion column. "She faces up to 30 years in prison for speaking gibberish to her client and the truth to the press. Shouldn't the Justice Department be defending our constitutional freedoms rather than assaulting them?"

Tellingly, the former judge works not for some scruffy revolutionary rag but Rupert Murdoch's right-wing Fox News, where he is the resident courtroom analyst. The National Lawyers Guild is also backing Stewart, as is a slate of law professors, legal analysts and civil libertarians.

Some argue that she violated prison rules by repeating conversations she agreed to keep to herself. Others say those same rules are themselves unconstitutional, hence she was under no obligation to honour them. All her supporters agree, however, that while Lynne Stewart may be a gadfly with a grating affection for all things radical, she is no terrorist.

"Would I take the Rahman case again, knowing what I know now?" Stewart said last week. "Well, I'd like to think I would. First, because everyone is entitled to a lawyer - and I say that as a lifelong New Yorker who watched the towers go up and saw them destroyed, not believing what I was seeing. And second, because what has happened to me proves that the laws I was found guilty of violating can now make it virtually impossible to defend unpopular, hated clients.

"Many people detest me for the sort of law I practise and the clients I represent," she said. "What should matter most is the chilling effect my prosecution and conviction could have, if allowed to stand, on everyone's freedom - even people who can't stand me, who think freedom is an abstract thing."

Come September, when her bail ends and Stewart returns to court, she could be sentenced to remain in prison until she is 97.

"For me," she said, "that makes freedom a very concrete concept."