Counter-intelligent: the surveillance and indictment of Lynne Stewart

Monthly Review, Nov, 2002 by Lynne Stewart, Susie Day

One of the things we can definitely say is that the case is full of legalistic issues--issues not to be decided by a jury, that only the judge will decide. For that reason, we're probably going to first focus on the purely legal issues. Do they make out a case? Is the law unconstitutional? Is the law unfair? Is the law an intrusion on attorney/client relationships? Are the things they've charged me with chargeable? Can they give us the particulars as to how they can do that?

One of the most interesting questions is that they've definitely wiretapped and surveilled the meetings in the jail. We're not just talking about telephones; we're talking about attorney-client meetings in the jail, which everybody always thought were sacred, absolutely confidential and private. They have videotaped and supposedly bugged these meetings.

They did it under FISA to begin with, based on the earlier press release I gave for the Sheikh, which may or may not be protected by the First Amendment. Now, they don't even have to go to a FISA judge, who is anonymous, to get him to sign the Foreign Intelligence wiretap. Under the PATRIOT Act, only John Ashcroft--the prosecution itself--has to sign. They don't need any third party whatsoever to authorize this kind of wiretap.

SD: When will your trial start?

LS: We're thinking there won't be any trial for probably at least two years, while we go through these mountains and mountains of material that they've amassed. We have to go through all this FISA wiretap material, both on Sattar's phone and on Yousry's phone. Plus, I'm sure there's tons of [visual] surveillance.

They still have not answered us about whether my home phone was wiretapped. We don't know those answers yet.

SD: I heard on the news that the government has told you it is not monitoring Sattar's legal visits in prison. Is that true?

LS: No. They said he was not being listened to pursuant to the SAMs, because the SAMs require that he be notified if he were listened to. This does not mean that there is no FISA wiretap or regular, court-ordered wiretap. Taken at face value, it means they're not listening to him on a SAMs tap.

At this point, because Sattar is in jail, the only way to meet with him is in jail. As is common in all cases, particularly in political cases like this, the defendants meet, sometimes endlessly, to decide what strategy works for everybody, and tell each other what their thinking is, or remind each other how things happened.

So we can't meet. We're not able to plan a strategy with our lawyers. We can't even sit down and say, "Hey, the indictment says you did this with me. I don't remember that. Did we or didn't we do that together?" We may not want the government to know the answer. It makes it virtually impossible to construct a defense.

SD: Is it true that the government will not tell you if you and your attorney, Michael Tigar, are being monitored?

LS: That's correct. They will not divulge.

SD: How does this affect your defense preparations?

LS: Well, it puts a crimp, but those of us who are not incarcerated at least have some alternatives. If we want to go to some small restaurant they don't know of, and choose it five minutes ahead of time, we can do that. Whereas, Sattar has no choice, being in jail.