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A federal prosecutor said Monday he backed off a criminal investigation of defense attorney Lynne Stewart to avoid disclosing that her client, Sheikh Omar Abdel Rahman, was being probed by intelligence officials for promoting terrorism from behind bars. Patrick Fitzgerald, now U.S. Attorney for the Northern District of Illinois, said that conducting a criminal investigation of Stewart and the sheikh, and then telling Stewart about it, would have undermined ongoing efforts to “keep people from being killed.” Stewart was ultimately indicted last year for helping the sheikh communicate with his followers in the government-designated terror organization Islamic Group. Fitzgerald’s comments came Monday in an unusual hearing held to determine whether warnings he gave Stewart in 2000 about her past meetings with the imprisoned sheikh — and negotiations over conditions for renewed meetings — amounted to a non-prosecution agreement for Stewart. Fitzgerald, who was one of the Southern District’s lead terrorism prosecutors at the time, strongly denied Monday that such an agreement was even implied. Charges against Stewart for providing material support for terrorism were ultimately dismissed by federal Judge John Koeltl of the Southern District of New York, but she still faces trial on allegations she made false statements and conspired to defraud the United States. The hearing Monday before Judge Koeltl was sought by Stewart’s defense lawyer, Michael Tigar, in an attempt to clear her of the remaining charges. At the heart of the case are Special Administrative Measures (SAMs), imposed on the sheikh by the Bureau of Prisons, which limited, and continues to limit, his contact with the outside world. In 2000, Fitzgerald was alarmed to learn Stewart, who had agreed to abide by the SAMs, was violating their conditions by communicating the sheikh’s withdrawal for a terror cease-fire and helping him disguise exchanges between the sheikh and an interpreter while in prison. The interpreter, Mohammed Yousry, was also charged in the indictment along with two others. Fitzgerald contacted Stewart and warned her to abide by the SAMs, saying in the strongest of terms that her actions might contribute to further terror attacks. After negotiations between Fitzgerald and lawyer Stanley Cohen, who was representing Stewart and the sheikh on issues of prison access and the SAMs, Stewart signed an attorney affirmation in which she agreed to abide by the SAMs. When Stewart was charged last year with helping the sheikh, her current lawyer, Tigar, said the exchange of letters between Cohen and Fitzgerald, as well as other prosecutors, amounted to an agreement not to prosecute Stewart. Monday, Tigar questioned Fitzgerald repeatedly over whether it was unethical to arrange conditions for Stewart to continue to see the sheikh while he was aware her conversations with her client were being monitored pursuant to a warrant issued under the Foreign Intelligence Surveillance Act. Tigar criticized Fitzgerald’s explanation as ironic given that Stewart was eventually charged with a crime on the basis of wiretaps under the act. He said Fitzgerald led Stewart and Cohen “down the garden path,” and tried to “lull them into believing that their problems were over.” Tigar asked Fitzgerald, “Did you tell Mr. Cohen you intended to listen in on Ms. Stewart’s conversations with the sheikh?” “I can’t imagine we discussed it,” Fitzgerald said. “It was classified.” And when Tigar asked whether Fitzgerald meant it when he told Cohen in a letter the government “has no intention of intruding on the attorney-client privilege,” Fitzgerald responded that was true, except where “the lawyer is involved in a crime” or fraud. “Let’s cut to the chase, sir, you don’t think you had a non-prosecution agreement with Mr. Cohen ?” Tigar asked. “I know I didn’t,” Fitzgerald answered. Cohen, who also testified Monday, said his exchanges with Fitzgerald were disconcerting because the prosecutor used vivid language when he spoke about the implications of Stewart’s meetings with the sheikh. Cohen said he did not believe the government would charge Stewart criminally, but added that he did not want to give them “any ideas” by asking whether she was the target of a criminal probe. PRIVILEGE ARGUED In his discussions with Cohen, Fitzgerald argued that the attorney-client privilege did not apply because the sheikh had already been convicted of seditious conspiracy and his appeals had failed. But Cohen insisted that Stewart continue to have access to her client, if only for the purposes of consultations over a possible civil rights lawsuit on the terms and conditions of his confinement, including a potential challenge to the SAMs. Cohen ultimately negotiated Stewart’s “one-time” return to the prison in Minnesota where the sheikh was held, but only after she signed another attorney affirmation. “Did you believe you had executed a formal non-prosecution agreement?” Assistant U.S. Attorney Andrew Dember asked. “In the formal sense? No,” Cohen answered. Twice during the hearing, Assistant U.S. Attorney Christopher Morvillo asked Judge Koeltl to rule against Stewart on the spot, calling her request for a finding of a non-prosecution agreement “completely frivolous” and a “fishing expedition.” But Koeltl took the issue under advisement and asked the parties to brief the matter.

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