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The government’s indictment of defense lawyer Lynne Stewart for providing material assistance to a terror group will be put to the test this morning when Southern District of New York Judge John G. Koeltl hears motions to dismiss charges in the case. In papers filed with the court, Stewart’s lawyer, Michael Tigar, attacks her indictment on charges of helping imprisoned Sheikh Abdel Rahman communicate with his followers in the Islamic Group, one of several organizations designated a terror group by the Secretary of State under 8 U.S.C. � 1189. Tigar argues that the indictment and the laws supporting it are vague, and that the government is penalizing her for acting as a lawyer and improperly restricting her First Amendment rights. Prosecutors, on the other hand, claim Stewart acted not as the sheikh’s lawyer but as a member of the terrorist group when she helped him get his message out. In an indictment announced by Attorney General John Ashcroft and Southern District of New York U.S. Attorney James B. Comey last year, the government leveled four charges against Stewart: providing material support or resources to a terror group, conspiracy to provide material support, conspiring to defraud the United States, and making false statements. Among the allegations, she is accused of breaking the law when she publicized that the sheikh no longer supported the Islamic Group’s self-imposed cease fire directed at the Egyptian government. Stewart, the government said, also violated Special Administrative Measures (SAMs) imposed by the Bureau of Prisons that restricted the ability of the sheikh to communicate outside of a Minnesota prison. The violation of the SAMs, prosecutors said, was in contradiction of an “Attorney Affirmation” Stewart signed after being warned about her actions by Patrick Fitzgerald, then-Southern District Assistant U.S. Attorney and terrorism prosecutor. Stewart was accused of misrepresenting that the sheikh was being denied medical care by prison staff and allegedly made extraneous comments in English during a prison visit to cover up conversations about the Islamic Group between the sheikh and interpreter Mohammed Yousry, who was also charged in the indictment. Co-defendant Ahmed Abdel Sattar, who is represented by Kenneth Paul, is also charged with soliciting crimes of violence, as is a fourth defendant Yassi Al-Sirri, who is currently in custody in England. Representing Stewart, Tigar challenges the indictment on all fronts. He claims there should be judicial review of the designation of the Islamic Group as a terror organization, and charges that his client’s conduct falls far short of the standard for providing material assistance to terrorism under 18 U.S.C. � 2339, a statute he argues is “vague and overbroad.” Tigar also claims the government’s own procedures were violated when it taped conversations pursuant to the Foreign Intelligence Surveillance Act. The heart of the motion to dismiss is what Tigar calls an unprecedented attack on Stewart’s role as a lawyer and her right of free speech and free association under the First Amendment. He accuses the government of “criminalizing” speech and imposing such an overbroad definition of “‘material aid’ that sweeps in rendering legal services.” On the attorney affirmation signed by Stewart, in which she pledges to abide by the SAMs, a pledge the government claims she broke, Tigar writes that “absent statutory or regulatory authority to do so, the United States Attorney’s issuance of an ‘Attorney Affirmation’ as a de facto regulation of attorney conduct is an impermissible and a stunning abrogation of power.” Criticizing the indictment itself as vague, Tigar asks the judge, in the alternative, to grant a motion for a bill of particulars on several questions, including “the date on which Ms. Stewart became a member of the conspiracy.” And should Judge Koeltl refuse to dismiss, Tigar asks that Stewart’s trial be severed from that of her co-defendants. “In a joint trial with weeks of testimony focused on the acts of her client and an alleged surrogate … she will not be able to make her defense,” he said. The government’s response to the motion to dismiss asserts that only the designated organization, and not a criminal defendant, has a due process right to challenge the designation of a foreign terrorist organization. Its memorandum, filed by Assistant U.S. Attorneys Robin Baker, Christopher Morvillo and Jennifer Rodgers of the office’s Organized Crime and Terrorism Unit, defends the constitutionality of both � 1189 and � 2339B on their face and as applied. The prosecutors assert that “Stewart was not engaged in acts of legal representation” when she helped transmit the sheikh’s directive on the cease-fire. That directive, the prosecutors state, essentially urged the Islamic Group “to resume terrorist attacks,” and had “no conceivable connection to the representation of Rahman.” “Instead, by these acts, Stewart wholly abandoned her role as a lawyer and became an integral cog in the IG communications machine,” they state. The prosecutors also assert that the First Amendment rights of Stewart were not implicated in the case and the “fact that Stewart committed her crimes in part by speaking has no relevance.” Stewart’s “mere status as a lawyer does not confer First Amendment protection to a lawyer engaged in criminal activity,” they added. The hearing before Judge Koeltl, set for 9:30 a.m. today in New York, is scheduled to take three hours.

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