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A 2d U.S. Circuit Court of Appeals panel heard arguments last week about the knowledge and intent of disbarred defense attorney Lynne Stewart when she passed messages from her imprisoned client to a terrorist group in Egypt. Defense attorney Joshua L. Dratel, a solo practitioner, sought to win a reversal of Stewart’s 2005 conviction for providing material support to a terrorist conspiracy, in violation of 18 U.S.C. 2339(a). He claimed Stewart’s release of a statement by imprisoned Sheik Omar Abdel Rahman to his followers in the Islamic Group was protected by the First Amendment. However, Anthony Barkow, an assistant U.S. attorney in the Southern District of New York who was part of the government’s team in the trial before Judge John Koeltl, told the panel there was “abundantly overwhelming evidence” that Stewart and interpreter Mohamed Yousry “knew that what they were doing was wrong” when they passed messages between Islamic Group and the sheik. The sheik is serving a life sentence for seditious conspiracy against the United States and was forbidden to communicate with the outside world from his prison cell. Dratel attacked Section 2339(a), within the context of the First Amendment. He also said Koeltl applied the statute in an unconstitutional manner because he “failed to abide by his promise to impose a specific intent requirement” when he charged the jury. Dratel said the evidence against Stewart amounted to no more than three meetings with her imprisoned client during a two-year period. He said she was charged for involvement in an alleged plot in which no “violent acts were planned or occurred.” Judge John M. Walker Jr. pressed Dratel to explain Stewart’s motive for issuing a May 2000 press release, in which she allegedly said the sheik was withdrawing his support for a ceasefire. Dratel insisted the “ceasefire was not abrogated � it remained in effect.” The sheik said nothing more than that it was time to “re-evaluate” the ceasefire because of the oppression and recalcitrance of the Egyptian government, Dratel said. With no intent to “incite imminent unlawful conduct or violence,” the First Amendment protected Stewart’s statements. However, Barkow said Stewart had communicated a “clear repudiation of the ceasefire.” Her following up the initial press release with a public statement saying she was speaking for the sheik, was “extremely powerful evidence” that she and Yousry had the requisite state of mind for conviction under the statute. Judge Guido Calabresi wondered whether a journalist who reported a similar message about termination of the ceasefire, following a secret visit with the sheik, could be charged criminally. Yes, Barkow answered. “If that raises First Amendment problems I want to know where the line is,” Calabresi said. “I want to know whether, if that is indeed a crime, whether we can let a statute of this sort stand under the First Amendment.” Judge Robert Sack tried to pin down Dratel, who repeatedly cited the U.S. Supreme Court’s Brandenburg v. Ohio decision, 399 U.S. 444 (1969), in which the justices found that Ohio’s criminal syndicalism law, which barred speech that advocated illegal activities, including violence, violated the petitioner’s right to free speech. “I assume that if your client flew to Egypt and said ‘Hey, the ceasefire is off,’ you wouldn’t be arguing that wasn’t a crime?” Sack asked. “I don’t think that meets the Brandenburg” standard, Dratel replied. “Are you telling me you don’t think it would be a crime to leave Minnesota [where Abdel Rahman was imprisoned] and fly there and say ‘You are ordered to stop the ceasefire’?” Sack asked again, adding later, “That’s not advocacy, is it?” Dratel insisted the “material support provided cannot be speech.”

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