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Defense attorneys for indicted lawyer Lynne Stewart asked a federal judge Friday to dismiss charges that she aided terrorists by passing messages for her imprisoned client, Sheik Omar Abdel-Rahman. Alleging Stewart is being prosecuted in violation of her First Amendment right to free speech, lead counsel Michael Tigar and co-counsel filed papers asking Southern District of New York Judge John G. Koeltl to rule that the statute criminalizing material aid to terror groups is unconstitutional because it is vague and overbroad. The 122-page memorandum is the latest salvo in what promises to be a long fight over the government’s decision to charge a lawyer who made her reputation defending radical clients. Stewart represented the sheik at his 1995 trial for seditious conspiracy to blow up New York City landmarks, and she continued to visit him in prison following his conviction. The indictment accused Stewart of joining a conspiracy beginning in May 2000 to provide support for the Islamic Group, a terrorist organization. She is accused of violating a prison ban on communication between the sheik and the outside world. The ban is part of special administrative measures imposed because the federal government feared the sheik would continue to send messages to his followers in the Islamic Group. Part of the April 8, 2002, indictment states that Stewart allowed an interpreter, one of her co-defendants, to speak privately with the sheik while she made extraneous comments to disguise their private conversation. Stewart was also charged with helping communicate a message from the sheik to the Islamic Group indicating that he no longer supported a “cease fire” on terrorist activities. The papers filed Friday state that “Lynne Stewart is a lawyer. She is not alleged to have given money, arms, or any similar thing to a terrorist organization.” They state further that “The government attempts to impose an overbroad definition of ‘material aid’ that sweeps into rendering legal services.” Defense lawyers argue that “this puts the lawyer/defendant and her colleagues to the difficult task of defending herself by seeking to invade the attorney-client privilege of her client.” The memorandum places strong emphasis not just on the close scrutiny courts have given to “speech crime,” but also the line of U.S. Supreme Court cases concerning incitement to violence and the hurdles a prosecutor must overcome in imputing the acts or goals of a violent organization to an individual who advocates on its behalf. “In sum, for the government to prosecute speech acts alleged to create a danger contemplated by Congress, individual intent to cause the danger contemplated, as well as a reasonable likelihood of success, must be alleged and proved with respect to each defendant,” the memorandum states. Charging that the indictment was based on “shotgun conspiracy doctrine,” the memorandum also emphasizes the circumstances of the case given Stewart’s role as a lawyer. “[T]he government may (arguably) have the right to limit the speech rights of a prisoner such as Sheik Abdel Rahman,” the memo states. “Matters are quite different, however, when a lawyer such as Ms. Stewart — or a newspaper reporter or anyone else — finds out a client’s political views on any given subject and truthfully reports those views to the world.” The memo states that the problem with the “mental element,” or the need for the government to show that Stewart intentionally aided a terror group, was illustrated by the fact that “there is no allegation that in ‘assisting’ Sheik Abdel Rahman she intended that the statement support the illegal goals of the Sheik’s organization.” “The act of assisting in releasing the Sheik’s statement, even if Lynne Stewart knew of its contents, cannot constitutionally be punished without a showing that Ms. Stewart herself sought to advance whatever illegal goal may have been furthered by such a statement,” it states. The memorandum also states that the taping of conversations between Stewart and the sheik or her co-defendants under the Foreign Intelligence Surveillance Act was illegal. Should Judge Koeltl decline to grant the relief sought by Stewart, Tigar and his legal team ask in court papers that her trial be severed from that of her three co-defendants. The prosecution is expected to file court papers answering Stewart’s motion to dismiss. A trial is tentatively set to begin in October.

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