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The latest charges accusing attorney Lynne Stewart of providing material support and resources to a foreign terrorist group should be dismissed because she could not have known her actions were illegal, according to her defense lawyer, Michael Tigar. In oral arguments on Friday before Southern District of New York Judge John G. Koeltl, Tigar said Stewart’s prison communications with her client, Islamic Group spiritual leader Sheikh Omar Abdel Rahman, could not be penalized because she lacked proper notice that her actions would violate the material support law. For the government, prosecutor Robin Baker expressed confidence that the statute as applied to Stewart was not unconstitutionally vague. A similar case against Stewart was dismissed in July on grounds of vagueness. Now the government has brought new charges — based on exactly the same actions — that by nature are harder to prove. To win a conviction the prosecution must show that Stewart intended to give assistance to members of a terrorist conspiracy. She is not charged with conspiracy herself. The charges stem from her contacts with Sheikh Abdel Rahman. Stewart was first indicted in 2002 for providing material support for terrorism. That charge was based on her actions both inside the federal prison where the sheikh is serving a life sentence for seditious conspiracy against the United States, and outside the prison in statements to the media. The indictment alleged that Stewart assisted terrorists by helping the sheikh communicate with his followers in Islamic Group, and she did so by violating a promise to abide by so-called special administrative measures, which isolated the sheikh from the outside world. Stewart was accused of two specific kinds of acts. One was telling the sheikh’s followers — in a public announcement on the courthouse steps — that he was withdrawing his support for a moratorium on acts of terror by the group against the Egyptian government. The other involved her behavior in visits to the sheikh in prison. She was accused of making noise to conceal the fact that he was exchanging information with an interpreter. The interpreter, Mohammed Yousry, is a co-defendant of Stewart. A third defendant, Ahmed Abdel Sattar, who sent and received messages from the sheikh, was charged with two counts of providing material support to a terror group. In July, Judge Koeltl found unconstitutionally vague charges that Stewart assisted Islamic Group by providing communications equipment and “personnel.” The “personnel” were the three defendants, which Koeltl said she could not have known. Those charges were dismissed on the ground that the statute, 18 U.S.C. 2339(B), was unconstitutionally vague as applied. The government responded with a superseding indictment under a different section, 18 U.S.C. 2339(A), based on exactly the same acts. Stewart was again accused of conspiring to provide material support and providing material support to Islamic Group. She was again accused of providing “personnel” to the outlaw group. This time, the sheikh himself was the “personnel.” In the new indictment, Sattar was not charged with providing material support. He was, however, charged with conspiracy to kill and kidnap persons in a foreign country. That charge is key to the reconfigured accusations against Stewart because of the differences between the two statutes. The one being used now, � 2339(A), was passed in 1994 after the 1993 bombing of the World Trade Center. It defines a violation as giving material support to anyone while intending or knowing that the support will be used in connection with any one of a list of violent crimes. The violent crime alleged to have been furthered by Stewart’s support is one that Sattar is alleged to have been planning. The first indictment was under a law passed in 1996 aimed at making it easier to obtain a conviction. That law, � 2339(B), does not require intent. It requires only that the defendant give aid or support to a group that has been designated as a terrorist organization by the secretary of state. “It was intentionally drafted so there is no defense along the lines of ‘I gave money to Hamas, but I didn’t want them to use the money for guns, I wanted them to use the money for an orphanage,’” said professor Robert M. Chesney of Wake Forest University Law School. “Congress wrote the statute with the idea that these organizations are so tainted by political acts of violence against civilians that any act that boosts the organization is harmful.” The statute the government is now using against Stewart is “a more narrow crime, a more difficult crime to prove,” Chesney said. “The new charges against Ms. Stewart will be harder to prove,” he said. “It’s a traditional conspiracy or aiding and abetting case.” For Tigar, the new charges still fail for vagueness and overbreadth. THE JUDGE’S ATTITUDE But as he continued to press this argument on Friday, Judge Koeltl seemed to agree with the government that the addition of the element of knowledge of the outcome may spare the government the problem of vagueness that doomed the material support charges last year. The judge focused on the “much higher specific intent” required by � 2339(A). He disagreed when Tigar framed the charges under that section as requiring little more than “the knowledge of the existence of a conspiracy.” “No, it is not simply knowledge of a conspiracy to kill,” the judge said. “It is knowing that resources are to be used in carrying out specific violations — and under (2339)B, all you have to do is knowingly provide something.” Baker relied on the government’s memorandum and offered no oral argument on the issue of intent Friday, save to say that she agreed with the court that the current prosecution sets a “rigorous” standard for the government. The government’s memorandum says, “It is ironic that Stewart, by making her as-applied vagueness challenge, professes to have lacked notice that the conduct at issue in Counts Four and Five — enabling an otherwise-isolated terrorist leader to resume such activities — could constitute the provision, concealment, and disguisement of material support and resources to terrorist activity. “The SAMs expressly put Stewart on notice,” it says, referring to the special administrative measures. The new charges also prompted the defendants to accuse the government of vindictive prosecution. Barry Fallick, representing Sattar, said that, under the old indictment, Sattar faced a sentence of 30 years in prison. Now he faces a potential life sentence for conspiracy. “The ante has been upped,” Fallick told Judge Koeltl, adding that prosecutors offered no new discovery in regards to the new charges and do not claim that additional time gave them the opportunity to review the facts more thoroughly. Judge Koeltl said the 2nd U.S. Circuit Court of Appeals has “rejected the view that prosecutors must bring all the charges possible in the first indictment.” He again noted that the “level of proof the government has taken on the second time is much greater” than under the charges in the first indictment. Fallick answered that the higher burden on the new charges “can not be used as an escape hatch” by the government because the government had created “a presumption of vindictiveness” in bringing the superseding indictment. The second indictment was also different, Tigar argued in his memorandum. “Unlike the first indictment, the superceding indictment represents a wide-ranging attack on all aspects of the professional legal services that Lynne Stewart provided during the course of representing Sheikh Abdel Rahman,” Tigar wrote. He asked the court how a lawyer such as Stewart could conscientiously provide legal services to the sheikh without knowing what is actually forbidden by the statute. Baker responded on Friday that Stewart’s role as a lawyer was irrelevant to the charges. In their memorandum, Baker and her colleagues insisted, “This case does not involve federal imposition of rules of conduct for lawyers, but federal enforcement of generally-applicable anti-terrorism laws.” “This case does not involve infringement upon lawyer autonomy and democratic rights, but the infringement upon the safety of people around the world by a person who happens to practice law, and her co-conspirators,” they state.

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