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The government is under no obligation to disclose whether court-ordered monitoring of attorney-client conversations is ongoing in the aiding terrorism case against defense lawyer Lynne Stewart, prosecutors argued in court papers. Rejecting claims by Stewart and two co-defendants that the specter of government wiretaps makes an effective defense impossible, Assistant U.S. Attorneys Joseph F. Bianco and Christopher J. Morvillo said that “no statutory or case authority” supports the defendants’ claim that they should be notified if their conversations are being monitored. The papers were filed with Southern District of New York Judge John G. Koeltl on Friday in response to a motion to dismiss an April 8 indictment charging Stewart, the lawyer for imprisoned Sheik Omar Abdel Rahman, interpreter Mohammed Yousry and Ahmed Abdel Sattar, with providing material support for terrorism. Along with defendant Yassi Al-Sirri, the three are accused of helping Sheik Abdel-Rahman communicate with his followers in the terrorist organization called Islamic Group. The indictment was based in part on years of court-approved monitoring of phone conversations, as well as meetings between Stewart and Abdel-Rahman in prison, pursuant to the Foreign Intelligence Surveillance Act (FISA). On April 24, Sattar’s lawyer, Kenneth A. Paul, asked for, but did not receive, assurances from the government that his conversations with Sattar at the Metropolitan Correctional Center were not being taped under FISA or under a conventional “Title III” warrant. Stewart’s lawyer, Susan Tipograph, asked for similar assurances as to Stewart’s law offices on lower Broadway. Tipograph had already informed Judge Koeltl that she would be unable to meet with Paul to discuss a joint defense without a no-monitoring guarantee. Paul filed his motion to dismiss the indictment on June 3. Tipograph and counsel for Yousry later joined the motion, which was based in large measure on the Sixth Amendment right to effective assistance of counsel. But in their response Friday, Bianco and Morvillo said that the “Sixth Amendment case cited by defendants Sattar and Stewart are inapposite.” “A criminal defendant has no Sixth Amendment right to use the attorney-client relationship as a shield to facilitate ongoing criminal activity,” they said. “Therefore, if the government is able to make such a showing and obtain court authorization to monitor conversations between a defendant and his attorney (or make the requisite showing under FISA), the government is entitled to conduct such monitoring without notice to that defendant even during the pendency of a criminal case.” And to sanction the government by dismissing the indictment based on the “sheer speculation” that the government would use a “lawful tool at some future time in an improper manner” would be wrong, they said, particularly in light of procedural safeguards designed to segregate the fruit of the wiretaps from the team handling the Stewart prosecution. Bianco and Morvillo said that the defendants “are seeking special assurances relating to the absence of court-authorized monitoring that no other criminal defendants (or members of the public at large) are ever provided.” The only monitoring the government is obligated to disclose, they said, is “unlawful” monitoring, and that disclosure obligation is only “triggered by the proposed use of evidence in a proceeding,” neither of which is involved in this case. The prosecutors go on to argue that Sattar’s reliance on cases stressing that private communications between lawyer and client are essential to effective assistance of counsel is “simply misplaced.” “It is axiomatic that communications between an attorney and his or her client are not entitled to absolute protection; rather, if an individual is using the attorney-client privilege to facilitate criminal or fraudulent activity, the government is entitled to pierce that relationship,” they said. SAFE HAVEN? The prosecutors said the assurance sought by Paul, if given, would guarantee a “safe haven” for Sattar to use prison visits or phone conversations “to facilitate criminal activity through that relationship, either wittingly or unwittingly” without detection by the government. In fact, they state, the kind of notice sought by Paul, if applied to the monitoring of Stewart’s conversations with Abdel Rahman, would have prevented the government from obtaining the evidence needed to obtain the Stewart indictment. Paul said Friday that fighting the prosecutors’ arguments on this issue is like “catching water.” “That’s what is so unique about this case,” Paul said. “Obviously what led us to this point, given how the investigation was conducted and how the indictment was obtained against Stewart, is that the very tool the government used to obtain the indictment, they might very well use to go and get a warrant and intercept my conversations.” Paul said he remains unpersuaded by government assurances that the prosecution team will be “walled off” from those doing the monitoring. “That doesn’t assure me,” he said. “It doesn’t allow one to be able to effectively communicate with one’s client and have the client feel he can openly and honestly communicate with his attorney.” “This has to be resolved for this case to go to trial,” he said.

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