www.LynneStewart.org

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1    (Jury not present)
2    MR. TIGAR: Your Honor, we have agreed on an order and
3 at this time I move under Federal Rule of Criminal Procedure
4 Rule 29(a) for a judgment of acquittal. I would like to serve
5 on the government, and hand it to your Honor, a brief letter
6 that contains the authorities, cases that I will be discussing
7 during my presentation to the Court.
8    May I stand at the lecturn, your Honor?
9    THE COURT: Sure.
   10    MR. TIGAR: I would like to begin, your Honor, by
   11 talking about some elements of offense issues and then go on to
   12 some of the more general questions that we believe are raised
   13 by this motion for judgment of acquittal. Talking about the
   14 role of the lawyer as the proof has now come in and the role of
   15 free expression.
   16    I want to begin by talking about Count 2 because as we
   17 have repeatedly heard, if there were not Count 2 there could
   18 not be a Count 4 and 5. And Count 2 is drawn under section
   19 956(a) of Title 18. It alleges a conspiracy to kill or kidnap.
   20    THE COURT: Could you hold on just one moment?
   21    MR. TIGAR: Of course, your Honor.
   22    THE COURT: All right.
   23    MR. TIGAR: Thank you, your Honor.
   24    Actually, it charges a conspiracy to murder and kidnap
   25 persons in "a foreign country." When I mentioned what I was
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1 going to do on Rule 29, I mentioned that we had hoped that the
2 government would tell us what foreign country was involved.
3 And if you will recall, counsel for the government said that
4 the Court had not required that specificity in the indictment,
5 which is true if we look at your Honor's opinion on the
6 pretrial motions at page 303 and 304. The Court said no, you
7 didn't have to say. And I suggest that now is the procedural
8 hour when the government does have to say what foreign country.
9 The indictment alleges a foreign country.
   10    And then so the next question is, what is a foreign
   11 country? The West Bank is not a foreign country because it is
   12 not a country. The struggle was said to have taken place in
   13 Palestine. We heard a number of great many exhibits introduced
   14 today, including Government Exhibit 542, talking about freeing
   15 Palestine and resistance inside Palestine. Jerusalem, another
   16 area referred to, either is or is not in a country, depending
   17 on whether one takes the view of the government of Israel that
   18 it is a part of Israel, or that one takes the majority view
   19 under international law that it is not.
   20    Now, the Court may pause to ask the question, well, of
   21 course, everybody knows what a country is. But everybody
   22 doesn't know what a country is. The pleader has charged that
   23 it took place in a foreign country. That means that the
   24 government has to prove beyond a reasonable doubt that wherever
   25 this was to take place was foreign and that it was a country.
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1    The Second Circuit addressed this issue in a case
2 called Cheung v. United States 213 F.3d 82. In that case,
3 there are a number of authorities of which the federal courts
4 have decided what is a country, what is a sovereign and so on.
5 And the holding of Cheung or the discussion of Cheung makes
6 clear that, first, foreign country, like foreign government, is
7 something as to which the executive branch has the first say by
8 virtue of recognizing an entity; and, second, however, where
9 the matter comes up in a decided case, it is not subject to the
   10 political question doctrine because a court must examine the
   11 resulting status and decide independently. Cheung is good, in
   12 our view, because it cites Chief Justice Marshall's opinion to
   13 the Court in the Charming Betsy case in 1804, which is the
   14 fountainhead of this doctrine that no federal statute can be
   15 interpreted save in accordance with the rules of international
   16 law.
   17    And the rules of international law are quite clear
   18 that whether or not a place in a foreign area is a country or
   19 not is a matter that can be attended with some difficulty. The
   20 government has not produced any evidence whatever that the
   21 murder or kidnap was to take place in something that is a
   22 foreign country.
   23    When examining this question and to illustrates its
   24 nontrivial character, one should look at the statutes as to
   25 which 956 is a part. Section 956 is in a chapter of Title 18
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1 called foreign relations. And many of the statutes in that
2 chapter date back to the dawn of the republic.
3    And indeed provisions that are contained in these
4 statutes are the provisions that Chief Justice Marshall was
5 referring to in construing provisions about arming ships and
6 what was neutral and what was not in the Charming Betsy. For
7 example, Section 961 does not refer to a foreign country. It
8 says: Foreign prince or state, or of any colony, district, or
9 people, or belonging to the subjects or citizens of any such
   10 prince or state; that is to say, a much broader term than the
   11 term the pleader in the grand jury has chosen here, which is
   12 country.
   13    And in Cheung itself the issue there was whether Hong
   14 Kong possessed sufficient attributes of sovereignty to be a
   15 foreign government within the meaning of the Extradition Act.
   16 And within the meaning of that act, which is not a criminal
   17 statute, of course, subject to the canon of lenity, the court
   18 said that Hong Kong did, in part, because the president of the
   19 United States had sent to the Senate a treaty of extradition
   20 with Hong Kong which the Senate ratified, recognizing that at
   21 least for the 50-year period under which China vows not to
   22 change the economic system of the former crown colony that Hong
   23 Kong would possess that attribute of sovereignty. As I say,
   24 this is a matter that has occupied the attention of scholars
   25 and it is nontrivial. It occupied the attention of the
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1 drafters of the South African Constitution, of President Nixon
2 in recognizing Taiwan, and so on.
3    Let's assume that a country is not something that the
4 government had to prove. Let's assume that the pleader pleaded
5 it, but for some reason the government is excused from proving
6 it by presenting evidence. The question of what is alleged to
7 be the foreign country is a vital concern here because other
8 principles of international law, which, as I say, ever since
9 1804, the federal courts are bound to apply in construing
   10 statutes, become relevant to the construction of this one.
   11 Murder, kidnapping, says the indictment. And the statute,
   12 Section 956, speaks of murder, kidnapping or maiming. Murder,
   13 kidnapping, or maiming are legal terms of art that refer to
   14 homicide detention and wounding. Homicide detention and
   15 wounding would be the neutral terms.
   16    If you look at the statutes of chapter 45 we see that
   17 there are many, many instances in which people can agree to
   18 kill, wound, and detain people in a foreign country. And
   19 whether or not someone is empowered to kill, detain or wound
   20 people in a foreign country depends on where that place is.
   21 For instance, there is a recognized canon of international law
   22 that a state, as a matter of customary international law,
   23 cannot interfere in a civil war in another country. By not
   24 interfering in a civil war in another country, one might well
   25 say that that would include not choosing to prosecute one group
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1 of people who are planning to go abroad and do something, but
2 not prosecute others.
3    And I think everybody in the courtroom is well aware
4 that there are groups of people in the United States today who
5 are preparing, who are training, who are doing things with the
6 benign neglect of the United States to do things in various
7 other countries. And the justification on international law,
8 for example, for not interfering with the planning of Cuban
9 emigrates to reenter their country could only come about if we
   10 consider it to be lawful under international law because the
   11 United States says that there are certain kinds of killing,
   12 wounding, and detaining in other countries that as to which our
   13 government simply has to kind of take a hands-off position.
   14    This is an unusual concept to talk about because when
   15 one reflects that the United States now, and London in the 19th
   16 century, were places where all men were emigrates used to get
   17 together and talk, it isn't so surprising after all. Unless we
   18 are told what country, we can't make a defense as to which we
   19 would be entitled under international law, which is well in
   20 that country. There is a civil war exception or perhaps one
   21 would say that it is not a foreign country because it is a
   22 failed state. Is a failed state, a foreign country possessing
   23 sufficient attributes of sovereignty to be covered under 956.
   24 What is a failed state? United States considered naming Iraq
   25 as a failed state simply to deprive it of juridical personality
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1 and thus to be able to repudiate its debts.
2    There are other cases that one can imagine, not
3 particularly relevant here, but that it seems to us go vitally
4 to the interpretation of this statute, including the Article II
5 power of Congress to grant others of mark and reprisal. But
6 all of that is discussed in the Charming Betsy case.
7    In looking up this issue, I looked at Judge Brinkema's
8 decision, which was not before the Court. She decided it, but
9 for some reason we didn't have it, back in March of 2004 in
   10 United States v. Kahn, which is cited in the letter that I've
   11 handed up to the Court. And in Kahn the government did charge
   12 that those defendants were involved in violating 2339 -- I
   13 can't remember if it was (a) or (b) because they went and they
   14 were going to do something in India, a country with which the
   15 United States was at peace. And that was a part of the statute
   16 there charged and Judge Brinkema made the charge that indeed
   17 India was the place and United States was at peace with India.
   18    Now, let's assume that it is not something that the
   19 government has to prove. Let's assume that it is not something
   20 the government has to name because it might give rise to a
   21 defense under international law. Why else? Why should we do
   22 it?
   23    This is a segue to some of the broader considerations
   24 that are here. The last group of exhibits that we had here
   25 reflects the terrible danger that all of these defendants face,
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1 a danger which from time to time we have said that no limiting
2 instruction can save them from. And that is the danger, that
3 this case will, in the juror's minds, be a case about them
4 versus us, a case that somehow there is a Muslim conspiracy out
5 there to kill all the Christians and the Jews, that Osama Bin
6 Laden is a part of it and that anybody connected in any way
7 with it must be involved. It is the same kind of error that we
8 had to struggle so hard to liberate ourselves from in the 1950s
9 when the rubric was the worldwide communist conspiracy.
   10    And the concepts then were tried to be directed to
   11 individual defendants like Mr. Noto and Mr. Scales and the
   12 defendants in Yates, all of those cases we have talked about
   13 with your Honor. This is -- the risk here is that the jurors
   14 will see this international conspiracy to fight the enemies of
   15 God or somebody's version of enemies of God, and will think or
   16 believe that that's the conspiracy, that it is a worldwide
   17 amorphous, vague conspiracy.
   18    And, of course, the next step is that since we read
   19 about it every day and since all the candidates for major
   20 public office speak in terms as though it existed, how can
   21 Ms. Stewart not know that it exists? We can argue that she
   22 certainly can't know that it exists because she reads the New
   23 York Times. After all, the Times and the other papers are not
   24 admitted for the truth of what is in there. They are admitted
   25 only for her knowledge, intent, and state of mind.
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1    But she is not on trial just for her knowledge,
2 intent, and state of mind, although that is relevant to the
3 case. She is on trial and can be convicted, if at all, because
4 an act was committed. The act in a conspiracy case, whether it
5 be Count 1, Count 2, or Count 4, is the act of agreement. And
6 Judge Friendly wrote in Borelli of this terrible risk that
7 people are likely to confuse the group of people doing things
8 with this understanding if the agreement is the essence of the
9 offense.
   10    So the vagueness that is attended by excusing the
   11 government from standing up and saying we said a foreign
   12 country, that's what the grand jury said, we have proved it,
   13 and, lo and behold, this is what we claim it is, makes it
   14 impossible for Ms. Stewart to defend on Count 4, either
   15 actually or as a practical matter because she can't figure out,
   16 and we can't talk to this jury about what she was and was not
   17 aware of if the government hasn't told us this is what you're
   18 supposed to be aware of, this is what you are charged with
   19 being aware of, this is the place where it occurred, and these
   20 were the people that are doing it.
   21    Now, that is to say, in order for her to desire that
   22 any of the charged conspiracies succeed -- and I'm talking
   23 particularly about the Count 4 one, although it goes to all of
   24 them, she has to know what it is. This leads me then to this
   25 somewhat broader view of conspiracy and what this case, from
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1 our perspective, is about.
2    It is two and a half years since I first -- almost two
3 and a half years since I first appeared before your Honor in
4 this case, two and a half years since I met Ms. Stewart for the
5 first time. Throughout the case the government has worn the
6 mantle of antiterrorism, and I trust that this Court doesn't
7 accord that any more weight than simply an identification of
8 these prosecutors as engaged in an important public function.
9    And the Court has consistently respected the fact that
   10 we on our side are as much charged with fighting terrorism,
   11 fighting invasion of rights, fighting the unlawful exercise of
   12 power as are the government lawyers, and we, too, recognize --
   13 and I certainly do personally, based on my own experience --
   14 that Luxor, with which we are not charged, but it was
   15 unequivocally a violation of secular and biblical law.
   16    And as I've said to the Court, for 30 years I've been
   17 representing the victims of terrorism. I think there is a
   18 fundamental difference of view here. There are groups in the
   19 world who seek to change the policies of their government and
   20 of adjacent governments by resorting to violence. That is
   21 true. And some of that violence violates the laws of their own
   22 country or the country in which they seek to do their conduct.
   23 And nation's states acquire the obligation to render to the
   24 appropriate sovereign fugitives who are said to have violated
   25 those laws.
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1    But there are equally provisions of law that say that
2 those who have planned and who execute violence are excused
3 from criminal liability. I have mentioned some of those
4 provisions, Civil War. I filed with the Court previously
5 evidence that CIA agents routinely kidnap people. We have had
6 Judge Livingston's decision that there is torture and nobody is
7 punished for it under the laws of Egypt. I cite in the papers
8 Chief Justice Story's opinion in the Amistad, which is very
9 interesting, but the Amistad took place in the context of an
   10 international incident involving Spain, Portugal, and the
   11 United States, and he said that as a matter of the law of
   12 nations, those defendants, those Africans could not be punished
   13 for piracy.
   14    These people, who are these people that are going to
   15 do violence, they have the right to counsel. They have the
   16 right to counsel not only to defend them when they are charged,
   17 but inevitably people who discuss the prospect of activity that
   18 may hurt others, often consult lawyers. And I am not going to
   19 repeat all of the examples we gave in our papers about the
   20 autonomy to which lawyers are entitled.
   21    But there is a chasm here between our position and the
   22 government's about this. The Court may recall the debate over
   23 the Cutack Commission report in 1982. And it was the position,
   24 for example, of the business round table in Weil Gotshal
   25 representing them that lawyers should be able to meet with the
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1 corporate client, for example, planning the issuance of a new
2 drug to treat arthritis. That was their favorite example. And
3 the container was either going to be child proof or not. And
4 if it was child proof, the arthritis sufferers couldn't open
5 it. But if it wasn't, children might open it and might be sick
6 or die.
7    And the question of what the company's liability would
8 be in that instance was something that was regarded as within
9 the lawyer's function, and the reporter's recommendation to the
   10 contrary was rejected; that is to say, people meet with lawyers
   11 under circumstances where they discuss harm. The president of
   12 the United States has lawyers who say, well, you can do
   13 torture, but you can't have people stand up for more than a
   14 certain number of hours per day.
   15    With specific reference to this case, I have never
   16 been in a case regarding a public figure, your Honor, in which
   17 you didn't read the newspapers or provide the newspapers or see
   18 that the newspapers were provided to the client so the client
   19 could make intelligent determinations. And yet the government
   20 is saying that's a violation of the SAMs. I have never been in
   21 a case where an incarcerated client, or isolated, where we
   22 didn't provide information about the client's supporters and
   23 people who were outside who might have something to do with
   24 providing professional legal services; in this case, getting
   25 the Sheikh to a prison in another country.
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1    And to read the SAMs as prohibited, the provision of
2 legal services in these ways is at war with the autonomy of
3 lawyers in the sense that I have described it as the matter of
4 the proof in this case. It is also at war with basic
5 principles of federalism as I have pointed out in my memorandum
6 in support of the motions to dismiss.
7    An illustration of how far the government is willing
8 to go to catch Lynne Stewart is, we found out that some of
9 these newspaper articles, which had to did with Sheikh Abdel
   10 Rahman's situation, people in Egypt, in an ongoing situation
   11 where there really was discussion about getting him out of the
   12 United States and into an Egyptian prison, they had to stand up
   13 and say or they had to claim that because Ramsey Clark, the
   14 former Attorney General of the United States, said you can do
   15 that and that's okay and I signed the SAM and I say you can do
   16 it, he must be a conspirator, too.
   17    And Abdeen Jabara, founder of the American
   18 Antidiscrimination Committee, he said you could do it and he
   19 surely understood and he has got to be a coconspirator, too. A
   20 theory that criminalizes lawyer conduct in that way that
   21 broadly simply has to be wrong because it is fraught not simply
   22 with the peril that the lawyers have shown, but with the idea
   23 that a group of Assistant United States Attorneys can now
   24 redefine what it means to practice law. It is interesting.
   25    In this town it used to be the terrorists were the
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1 IRA. There were these trials and there were these people that
2 Mr. Doherty, who was there, Judge Sprizzo says he couldn't be
3 extradited. One of the great lawyers that represented all
4 these alleged terrorists and who stood up and spoke to the
5 Northern Irish Aide was Paul O'Dwyer. The reason I thought of
6 this, I was having coffee yesterday morning and I looked across
7 the street and they named the street in front of the courthouse
8 after him. And then Mayor Dinkins named the street over by the
9 MDC Joe Doherty Way until Mayor Giuliani took the sign down. I
   10 don't say that lightly or make a pleasantry. It is to talk
   11 about context and talk about the risks we feel we face.
   12    Now, that brings me to the other part. Your Honor
   13 held conformably to Dennis and Bryson that we would not be able
   14 to make a frontal challenge to the validity of the SAMs, just
   15 that the Dennis defendants were not able to challenge in their
   16 371 conspiracy to defraud prosecution, the constitutionality of
   17 section 9(h) of the Taft-Hartley act, and that's the law of the
   18 case.
   19    But there is no case under Section 371 that deprives a
   20 defendant of the right at motion for judgment of acquittal time
   21 of the ability to make and have interpreted a First Amendment
   22 argument about the content of particular expression, especially
   23 when that particular expression consists of speech that relates
   24 to core concerns. Speech that relates to core concerns may at
   25 times be very, very violent indeed, it being recognized that
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1 people who are the victims of torture, summary execution,
2 hostage taking, all of the things that have been laid at the
3 feet of the Egyptian government and in a judgment to which the
4 United States was a party and did not appeal and is therefore
5 bound by, in some sense of the word, that they may react in
6 certain ways. That's just a reality, your Honor, and we have
7 cited Hess v. Indiana, kill the pigs, kill the pigs. We have
8 cited Yates. We have cited Watts. If you give me a gun, I
9 want to kill the president. There are a lot of not pretty
   10 things that are said by people who are engaged in this kind of
   11 struggle.
   12    We recognize that in the very case in the Second
   13 Circuit, the Rahman case, the court said, well, no, not
   14 standing in the kitchen with Mr. Salem and saying blow things
   15 up. That's not what that is about. Once we get all this
   16 newspaper reading and so on out of the way -- again, I say -- I
   17 represented, your Honor, the only city member of the United
   18 States Senate ever to have been acquitted by a jury, and the
   19 idea that in the course of preparing that case we couldn't read
   20 the newspapers every day would be surprising.
   21    What did Ms. Stewart do? Let's look at the statement.
   22 Let's look at that. She goes to the prison. She has a
   23 discussion. Mr. Yousry translates before what he is going to
   24 read. That is what the approved by means. Ms. Stewart and
   25 Mr. Yousry don't want the guards to interrupt them. So the
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1 fact that he is doing a lot of talking and she is not, she does
2 engage in some behavior that make sure the guards don't listen
3 in. She remarks there seems to be a lot of guards around
4 today.
5    I hope the government doesn't continue to persist on
6 that point, because I might have to turn myself in. Because
7 every time I have ever gone to a prison in a high-profile case,
8 I have tried to do things to keep the guards from hearing what
9 we talk about. I regard that as normal, whether it is to take
   10 a radio in or write things or not say things or even say things
   11 that divert. We take that and put it to one side.
   12    Let's see what happens at that visit. This is a
   13 conversation in Government Exhibit 1711, your Honor, at page 31
   14 of the transcript provided to us. And that's the May 20
   15 conversation. And that's at a point where they are discussing
   16 what Abu Yasir wants. And at page 31, line 3 Mr. Yousry says:
   17 Abu Yassir is asking unintelligible, wants your approval that
   18 he can escalate with the media and try to rearrange the
   19 thinking of. Escalate with the media. Concerning what? The
   20 initiative completely.
   21    Line 9: Tell him, yes, I agree, but not to cancel it.
   22 He should not cancel it all together, not to void it. He can
   23 go ahead and escalate, referring to escalating with the media.
   24    Then Ms. Stewart on the 14th of June 2000 talks to
   25 Mr. Salaheddin and says that the Sheikh withdraws his support
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1 for the initiative or cease fire or whatever, withdraws his
2 support.
3    Let's take it that indeed those are the exact words
4 that she said. Let's understand the context in which the
5 Sheikh is told in prison that the government has once again
6 started killing people and summarily executing them and taking
7 hostages, and minors are being tried by military courts and so
8 on.
9    What does that lead to, your Honor? The government
   10 promised us that we were going to get a command to pick up the
   11 guns. Nobody in Egypt interpreted it as a command to pick up a
   12 gun in the sense that nobody picked one up. The first thing
   13 that happened was that Montasser al-Zayyat and the brother in
   14 prison said that can't be impossible. Six days later there is
   15 a clarification where the Sheikh says, I'm not supporting this
   16 thing anymore, but I certainly didn't cancel it.
   17    And then in one of these wonderful vindications of
   18 John Stewart Mills, a theory of freedom of expression, more
   19 speech does the job. Because in fact the questions that Sheikh
   20 Omar Abdel Rahman was quoted by Ms. Stewart as raising leads to
   21 a reaffirmation of the initiative. That's the First Amendment.
   22    As far as the fake fatwah is concerned, she didn't
   23 have anything to do with it. When she heard about it, she was
   24 surprised. If he is for it, well, that's it; I'm for it, is
   25 the language that's quoted.
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1    The idea that you stick people with particular words
2 in casual conversation is a strange one. The likely meaning is
3 if she did it she would have to defend it. She never did
4 anything about it or spread it or anything else. That doesn't
5 quite seem fair.
6    Then, of course, there is the statement about insulin,
7 your Honor, which the government is also relying. Wow. The
8 son and the wife of the Sheikh get concern about his medical
9 treatment. A guard at the prison says he is not taking his
   10 insulin. Ms. Stewart is barred from seeing her client. She
   11 has no idea what's happening except that she does know from her
   12 experience that a number of things have happened in that prison
   13 that are very disturbing, that the Sheikh, they approach him
   14 when he is naked, they look at his body. They do things that
   15 are insulting to a Muslim.
   16    Dr. Edward, he doesn't even know what Hallal food is.
   17 I am not going to go into all of the details. There is some
   18 failure of communication. Dr. Edward, he did say that. As far
   19 as Ms. Stewart is concerned, she doesn't know anything.
   20 Mr. Sattar is calling her. What does she say? Nobody on the
   21 outside knows. What is she supposed to do? Tell us what is
   22 her legal duty when she hears third-hand hearsay about
   23 something that is attributed to her client?
   24    Can it really be said she has an enforceable legal
   25 duty to intercede in a matter where she is prohibited from
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1 seeing her client to make sure that no false reports get to the
2 press? Is it now a federal crime to say things in public that
3 arguably might cause danger? We can all think about that for a
4 minute. In a day and time when there are so many revelations
5 about so many things that were said to the press that have
6 caused the deaths of so many and turned out to be false, it
7 does not lie with this executive branch, your Honor, to give us
8 lessons on telling falsehoods to the media.
9    In short, your Honor, nothing in the history of 371,
   10 not the Klein case, not Professor Goldstein's wonderful article
   11 about the Klein case, or any of the other cases says that we
   12 can't look at the First Amendment here. And if we can't, we
   13 suggest that we must. I note this, your Honor. In the Cosa
   14 Nostra cases the government usually had an expert that would
   15 say, you know, this is the Cosa Nostra. This is how they are
   16 organized. These are the dangers they create.
   17    THE COURT: The government knows I have not been a fan
   18 of experts such as that subject. There was no effort to
   19 introduce such an expert and it is simply not in a case.
   20    MR. TIGAR: Your Honor, I take seriously what your
   21 Honor says. Had there been one, I would have been the first
   22 one to say, under the Second Circuit's recent decisions, the
   23 expert can't testify. Then we ask ourselves, what is the
   24 evidence, what is the evidence about conditions in Egypt that
   25 the government did introduce? Well, there is Judge
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1 Livingston's opinion about the torture. There is Judge
2 Livingston's opinion that the FBI overvalues its intelligence
3 sources. There are human rights country conditions reports.
4 There is the State Department's own report. The government
5 introduced two State Department reports in evidence but didn't
6 read them to the jury. You know what those reports say, your
7 Honor? The Egyptian people have no meaningful opportunity to
8 change their government by peaceful means. Two government
9 exhibits.
   10    I represented people. I sat in rooms in South Africa
   11 with people that I knew also were engaged in some way,
   12 connected in some way to the arms struggle. That was what
   13 lawyers are supposed to do, your Honor.
   14    Finally, I'd like to talk a little bit about these

   15 1001 counts. That's a technical thing.
   16    Excuse me, your Honor, one more thing. Judge
   17 Brinkema's opinion in the Kahn case is very, very interesting
   18 to me because those defendants were charged with providing
   19 personnel in the same way that we are. And Judge Brinkema
   20 discusses humanitarian law, that case. In that case she
   21 defines the provision of personnel in her discussion of 956 and
   22 the 2239 in terms of these people going to a training camp and
   23 learning how to fire rifles and picking up guns, training in
   24 the United States using paintball instead of real weapons.
   25    I suggest to the Court that Judge Brinkema's analysis
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1 of the providing personnel part of this offense is worthy of
2 study. And I suggest also that in the context of my discussion
3 of the issues the government has failed to prove that
4 Ms. Stewart provided the Sheikh to a conspiracy. That's an
5 offshoot of my argument about vagueness, provided the Sheikh to
6 a conspiracy. By issuing the statement on June the 14th, 2000?
7 I have talked about that. Thereafter, she was barred for that
8 whole time from August to the following July when she sees him
9 again, so there couldn't be any providing about that. In
   10 short, your Honor, we submit the government has failed the
   11 proof.
   12    The 1001s. The interesting thing, your Honor, about
   13 the May 19 and 20 prison visit is that during one of those
   14 tapes your Honor can see a document on the table, on the white
   15 table cloth and, lo and behold, if you zoom in on it, as I saw
   16 it go by, it is the SAM affirmation that Ms. Stewart has
   17 already signed. If that's what that evidence shows, and we say
   18 that it is, she arrived at the prison in Rochester having
   19 signed the SAM. On or about May 16, the SAM affirmation was
   20 signed.
   21    Now, it is at page 31 of 1711 that we have Sheikh
   22 Abdel Rahman saying, well, I want to do this, I want to tell
   23 this to Abu Yassir, this, that, and the other thing. So if we
   24 discard this idea of making everybody a conspirator about
   25 reading newspaper articles, and if that's the SAM that she
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1 allegedly -- that's the false statement, that SAM is the false
2 statement. The SAM affirmation, first of all, it refers to an
3 invalid SAM. The SAM that came attached to the affirmation was
4 the December '99 SAM which only lasted 120 days, and so that
5 couldn't be violated. It then has the typo and everyone says
6 well, that's just a typo.
7    We still insist on those points, but fine. The
8 affirmation is in three parts: One, the past tense; two, the
9 present tense; and, three, the future tense. And the Court
   10 dealt with this issue in the Shah discussion, in the Shah case.
   11 You said they had to prove the times she signed it she intended
   12 to violate it. That simply is an inference that doesn't hold
   13 water. She had the signed SAM with her at the visit. She had
   14 signed it before. And there simply is not a line, not a word
   15 of evidence that she pondered the idea of issuing any media
   16 statement until after she left the prison and indeed until
   17 after she had a meeting with Mr. Jabara and Mr. Clark until
   18 after she talked about it, until somebody came to her office.
   19 They called Mr. Salaheddin on the 14th. The same thing could
   20 be said about Count 7.
   21    THE COURT: I'm sorry? The reporter didn't get it.
   22    MR. TIGAR: The same thing could be said about Count
   23 7, your Honor. We have cited cases and I have spoken longer,
   24 perhaps, than people do in Rule 29(a) motions, being thought in
   25 some places as kind of a vestigial rambling, and I never
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1 thought of them as such, and I know the Court does not.
2    From the outset I appreciated the opportunity to serve
3 in this case because I saw it as a test of the most important
4 values that have surrounded not just political society, but my
5 profession. And that's why I appreciate the opportunity,
6 regardless of the outcome today, to address the Court again on
7 these issues. Thank you.