Lynne Stewart: Bainbridge Has Fleas

Professor Bainbridge, who comes by his conservative politics honestly, has some unpleasant things to say about Lynne Stewart.  What support does he have for his views?  None other than the renown expert on Lynne Stewart, Walter Olson.

At the very least, if you lie down with fleas, you get up with fleas. Yet, Walter Olson observes that Stewart is more than just a lawyer representing a client:

Secret prison wiretaps leave no doubt that Stewart broke the law in the manner alleged. And she has forthrightly acknowledged her ideological solidarity with Abdul Rahman as a foe of American imperialism, and her support for “directed violence” against “the institutions which perpetuate capitalism, racism, sexism, and at the people who are the appointed guardians of those institutions.”


I really don’t mean to pick on Walter, who has lately made a cottage industry of being the Lynne Stewart expert.  But his conclusory observations are, well, mistaken?

Lynne wasn’t convicted because of her views on American Imperialism, or her admiration for the blind Sheik’s sincerity of belief.  There are certainly plenty of red-blooded Americans who stand firm in support of Palestinians who like to bomb busloads of Israeli children.  Does it matter that these aren’t American children?  Maybe to them.

Walter also raises the specter of the first World Trade Center bombing in 1993.  This one failed, but not because of desire.  Walter blames Lynne for this.  But this was what Lynne’s client, the blind Sheik, was charged with, not Lynne.  She was defending him for it, not participating in it. 

Lynne violated the SAMS.  Walter never talks about the SAMS.  Neither does Bainbridge.  The detail is lost in such hyperbole as “She gave material aid and assistance to a convicted terrorist.”  Sounds horrible, but not much detail.  Let’s try to put some flesh on these bones.

The SAMS are Special Administrative Measures that the government unilaterally imposed on prisoners  when the government believes “that there is a substantial risk that a prisoner’s communications or contacts with persons could result in death or serious bodily injury to persons, or substantial damage to property that would entail the risk of death or serious bodily injury to persons.”

When a lawyer represents such a prisoner, the lawyer is required to agree to the SAMS or is denied access to the client.  No negotiation.  No discussion.  If you don’t sign, you can’t see your client. 

Now, unbeknownst to Walter, the SAMS were there but universally viewed as one of those bizarre excesses of a certain right-wing Attorney General and Administration.  Ironically (and unmentioned by Lynne’s detractors), former Attorney General Ramsey Clark was Lynne’s co-counsel in the case.  He too signed the SAMS.  He too violated the SAMS.  He wasn’t prosecuted.

The government’s prosecution was based upon the allegation that Lynne Stewart signed the SAMS but never intended to abide by them.  How would they know?  They secretly tapped her attorney-client communications with the blind Sheik under the  1994 Foreign Intelligence Surveillance Act warrant targeting her client.

On October 31, 2001, Attorney General John Ashcroft, secretly amended the SAM regulations – without notice to the public. As amended, the regulations allow the Bureau of Prisons to conduct videotape and audiotape surveillance with respect to attorneys’ communications with people in federal custody.


Included in this secret amendment was the authority to include attorney client conversations in the warrantless taps. 

From this, the government learned that Lynne was present when Mohammed Yousry, an interpreter, and Ahmed Abdel Sattar, who was acting as a law clerk, served as a conduit for the blind Sheik to communicate with the outside world, including composing a letter in arabic that was alleged to be a message to his followers.  In 2000, Lynne released a statement from her client that “withdrawing his support for a ceasefire that currently exists,” encouraging, according to the government, the Sheik’s supporters in Egypt to engage in violence.   Not a single act of violence was shown to have resulted from any of this. 

There you have it.  SAMS and eavesdropping on attorneys via secret amendments.  Did Lynne provide “material support” to terrorists?  If guys like Walter were to work with the facts rather than the overarching hyperbolic conclusory assertions, my guess is that this wouldn’t get him on cable TV news.  The real story is far less damning, and far less interesting. 

Also, it really doesn’t make the government look all that good, and there are plenty of red-blooded Americans who might not be so thrilled with the idea that defendants are denied their right to counsel if counsel won’t sign the SAMS, or that we have secret rules here that allow the warrantless eavesdropping on attorney client communications.  But mostly, a lot of Americans just wouldn’t get all that worked up if they knew what was meant by such screaming attacks against Lynne Stewart.

So Bainbridge is right on target when he says “if you lie down with fleas, you get up with fleas.” (Note to self, check this quote, because I always thought it was “if you lie down with dogs, you get up with fleas.”  But who am I to question Professor Bainbridge?)  I wonder who’s scratching themselves more these days, Walter or the good Professor?

Thanks to Elaine Cassel for her post at Findlaw for so many of the links used in this post.