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The federal government’s power to monitor the conversations of an incarcerated terrorism suspect collided with the attorney-client privilege Wednesday in the prosecution of New York defense attorney Lynne F. Stewart. Appearing in the Southern District of New York, prosecutors were unable to guarantee that the face-to-face meetings of defense attorney Kenneth Paul and his client Ahmed Abdel Sattar — a co-defendant of Stewart’s — were not being recorded as part of an ongoing criminal investigation. And Assistant U.S. Attorney Christopher Morvillo told the judge that even if the conversations were being monitored, he and fellow prosecutor Joseph Bianco might not know about it because of procedures established to separate the trial prosecution team from the people doing the monitoring. Paul had asked the prosecutors for a written statement or an oral declaration that contained an “assurance of confidentiality.” A letter he had received from the prosecutors, Paul said, was not enough. “The government can very easily rectify this by saying that, on attorney-client conferences … there will not be any interception,” Paul said. “Without that kind of assurance, it’s going to be impossible to represent him.” Sattar was indicted two weeks ago, along with Stewart, translator Mohammed Yousry, and Yassir Al-Sirri, as a result of three years of court-approved monitoring of the conversations of imprisoned Sheik Abdel Rahman. The indictment charged that the sheik, convicted in 1995 for seditious conspiracy as part of a plot to commit acts of terror in New York City, used the four to continue to pass messages and disseminate information to the Egyptian-based terror organization called Islamic Group. Stewart, who is charged with providing material support for terrorism, two counts of conspiracy and making false statements, and Yousri are out on bail. Al-Sirri is in custody in London. The case is before U.S. District Judge John G. Koeltl of the Southern District of New York. Sattar, who is accused of being a “vital link” between Sheik Rahman and his followers in the Islamic Group, is being held without bail, confined to the high-security unit on the 10th floor of the Metropolitan Correctional Center (MCC) in Manhattan. Paul said after the hearing that he was not sure under what provision the government might be monitoring conversations with his client. But he said that he and Sattar are “looking over our shoulders” in the jail and are unable to speak freely. MONITORING MEASURES One measure under which monitoring might be occurring, Paul said, is the Foreign Intelligence Surveillance Act (FISA), which, with the approval of a federal judge, allows monitoring for national security reasons. Another is monitoring and taping under a traditional “Title III” warrant, approved by a federal judge after a showing of probable cause. Paul said after the hearing that he has little faith in the “walls” that are supposed to separate the prosecution team from the information gleaned by monitoring under either an FISA or a Title III scenario. But regardless of the method by which monitoring may have been approved, he said he believes there is a real possibility that Sattar’s right to speak to his attorney in confidence will be compromised, and he wants the government on record stating that his conversations are not being recorded. Moreover, Susan V. Tipograph, who represents Stewart, and David Stern, who represents Yousri, said they would refuse to have co-defendant conferences with Sattar and Paul unless they received similar assurances. But Assistant U.S. Attorney Morvillo said that under FISA he would not be aware of any monitoring because national security personnel may not share their information with prosecutors working on an existing criminal case. With respect to a Title III warrant as part of an ongoing criminal investigation of Sattar, Morvillo said, “it would be inappropriate for the government to disclose” that it was monitoring conversations. And again, he emphasized, there are “appropriate procedures to preclude the trial team from having access to those conversations.” Judge Koeltl urged both sides to try and resolve the matter. If they cannot agree, he said, Paul should make an application and he will hear arguments. “I think the judge is troubled by this,” Paul said after the hearing.

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