12136 51BMSAT1 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 -------------------------------------x 2 UNITED STATES OF AMERICA, 3 3 v. S1 02 Cr. 395 (JGK) 4 4 AHMED ABDEL SATTAR, a/k/a "Abu Omar," 5 a/k/a "Dr. Ahmed," LYNNE STEWART, 5 and MOHAMMED YOUSRY, 6 6 Defendants. 7 -------------------------------------x 7 8 January 11, 2005 8 9:35 a.m. 9 9 10 10 Before: 11 HON. JOHN G. KOELTL 11 12 District Judge 12 13 13 APPEARANCES 14 14 DAVID N. KELLEY 15 United States Attorney for the 15 Southern District of New York 16 ROBIN BAKER 16 CHRISTOPHER MORVILLO 17 ANTHONY BARKOW 17 ANDREW DEMBER 18 Assistant United States Attorneys 18 19 KENNETH A. PAUL 19 BARRY M. FALLICK 20 Attorneys for Defendant Sattar 20 21 MICHAEL TIGAR 21 JILL R. SHELLOW-LAVINE 22 Attorneys for Defendant Stewart 22 23 DAVID STERN 23 DAVID A. RUHNKE 24 Attorneys for Defendant Yousry 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12137 51BMSAT1 1 (Trial resumed) 2 (In open court; jury not present) 3 THE COURT: By the way, while we are waiting for the 4 jury, I asked Mr. Fletcher to schedule the lunch late today to 5 give maximum flexibility in case I can charge before lunch. Or 6 if it goes too long that the lunch could be cancelled and I 7 could send the jury home for the day. 8 On another matter, while we are waiting, the 9 government should have a copy of the superseding indictment to 10 go to the jury and show it to all of the defendants to make 11 sure that the copy of the indictment with all of the redactions 12 is agreed to, so everyone knows what's going to the jury. 13 MS. BAKER: Your Honor, we had previously circulated 14 such a revised copy of the indictment, and I did not receive 15 any comment from the defense, so I would ask that if they do 16 have any comment, let me know. 17 MR. RUHNKE: Does your Honor intend to send exhibit 18 lists to the jury? 19 THE COURT: No. 20 (Jury present) 21 THE COURT: Good morning, ladies and gentlemen. It is 22 good to see you all. 23 Ladies and gentlemen, we are continuing with the final 24 rebuttal summation. Please remember all of my continuing 25 instructions with respect to summations and continue to apply SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12138 51BMSAT1 1 them. Remember that nothing the lawyers say is evidence. They 2 are submitting to you what they submit the evidence shows or 3 does not show. Remember that I will instruct you on the law 4 and that if any lawyer says any principle of law different from 5 what I tell you the law is, of course it is my instructions on 6 the law that you must follow. 7 With that, Mr. Barkow. 8 MR. BARKOW: Thank you, your Honor. 9 I started my argument yesterday about Lynne Stewart 10 with -- by playing and reading a quote by Lynne Stewart, if we 11 could put it on the screen. Lynne Stewart said this on October 12 10 -- October 11 of 2000, after she was told by Mohammed Yousry 13 about Ahmed Sattar's fatwah that was written in Abdel Rahman's 14 name. October 11 of 2000 and that's Government Exhibit 1193X. 15 And I want to repeat to you what I said when I was talking 16 about Mohammed Yousry and what Mr. Dember said to you in his 17 summation. And that is that Lynne Stewart is not accused of 18 smuggling this fatwah in violation of the SAMs. She is not 19 accused of that. Ahmed Sattar wrote this fatwah, as I argued 20 yesterday, and not Abdel Rahman even. Ahmed Sattar. And Lynne 21 Stewart didn't play any role in its dissemination. I made that 22 clear yesterday and Mr. Dember made that clear as well. The 23 message that Lynne Stewart smuggled was the withdrawal of 24 support for the ceasefire in May and June of 2000. That's what 25 I'm talking about with her. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12139 51BMSAT1 Rebuttal 1 But the reason that I started as I did and the point 2 that I was making and the point that I am going to continue to 3 make by reference to this quote is about Lynne Stewart's intent 4 and her state of mind. Because this quote, I submit to you, 5 speaks volumes about her state of mind and her intent. Because 6 when Lynne Stewart heard about this fatwah, she didn't know 7 whether Abdel Rahman had actually said it or not. In fact, at 8 page 3 of 1193X she said that she thought it was possibly a 9 friendly guard who might have gotten it out. That was one of 10 the possibilities. And she said, upon hearing about the 11 fatwah, he is going to get his message out, no matter what. 12 And I submit to you that what she said on October 11 13 of 2000 proves her intent throughout the entire case, including 14 when she relayed Taha's message into Abdel Rahman, and when she 15 brought back out Abdel Rahman's withdrawal of support and 16 announced it to Esmat Salaheddin. I submit to you that she 17 thought Abdel Rahman was going to get his message out, no 18 matter what, and she was going to do what she needed to do to 19 make that happen. 20 I also need to refine slightly what I said yesterday 21 because I might have spoken a little too broadly. I said that 22 Lynne Stewart and Mohammed Yousry are charged with smuggling 23 out the fatwah as part of the conspiracy to defraud. That 24 fatwah is relevant conduct as to the conspiracy to defraud and 25 to violate the SAMs because Ahmed Sattar, having drafted it, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12140 51BMSAT1 Rebuttal 1 caused Mohammed Yousry to bring it to Abdel Rahman's attention. 2 So Sattar could try to get Abdel Rahman to adopt it after the 3 fact, and Abdel Rahman in fact did endorse it. That's at 4 Government Exhibit 1733T, page 20. And Abdel Rahman said, when 5 he was told about the fatwah, "It was a good thing, what was 6 said. It is true that I did not say it, but it is good. What 7 was said is good." 8 Now, before I go too much further I want to make a 9 point. This case is not about lawyers or lawyering. This is a 10 case against someone and involving a person who happens to be a 11 lawyer. And this isn't an attack on lawyering or a referendum 12 about whether defense counsel is a good thing or serves a good 13 function. Defense counsel is a good thing and serves a vital 14 function. This trial, this court, the United States would not 15 function without defense lawyers and what they do, and we 16 should all commend the lawyers who represent these defendants. 17 It is a hard job and they did a fine job here. 18 And Lynne Stewart herself deserves credit for taking 19 on the challenge of representing Omar Abdel Rahman at trial, as 20 does Ramsey Clark and Abdeen Jabara, and the lawyers for Abdel 21 Rahman's codefendants. It is a difficult job. And it is a 22 good thing when a lawyer establishes a relationship with a 23 client and it is a good thing when a lawyer pays attention to a 24 client. 25 So Mr. Tigar is just plain wrong when he says "that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12141 51BMSAT1 Rebuttal 1 complaining about lawyers paying attention to a sick old man 2 represents the government point of view about how to practice 3 law." Because if Lynne Stewart had just visited Abdel Rahman 4 or called him up and talked to him and kept him company and 5 paid attention to him, it would have been a close call and 6 debateable whether that was legal business, but it wouldn't 7 have been a big deal. 8 The government salutes lawyering, but Lynne Stewart 9 crossed the line that separates lawyering from crime. No. 10 Lynne Stewart obliterated that line. 11 What defense lawyers do every day in courtrooms is one 12 of the things that makes this country great. But another thing 13 that makes this country great is the rule of law. And you 14 can't have individuals running around and deciding which rules 15 apply to them and which rules don't apply to them, what's safe 16 or not safe enough, which laws they disagree with and will 17 follow, and which ones they don't and won't, what risk of death 18 to others is worth taking, and which ones aren't. 19 Lawyers are not above the law, just like painters, 20 plumbers, and presidents, because of imaginary bubbles or 21 spaces that they make up only after they get caught. You've 22 seen lawyering in this courtroom. All three defendants have 23 lawyers. They have asked questions of witnesses, they have 24 made arguments to you. That's lawyering. That's what they did 25 and that's what Lynne Stewart did in the Abdel Rahman trial. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12142 51BMSAT1 Rebuttal 1 What this case is about is that Lynne Stewart lied. 2 Lynne Stewart issued the blessing of a return to violence from 3 a terrorist leader. That's what this case is about and that is 4 not lawyering. That has nothing to do with lawyering. 5 And it doesn't matter that Lynne Stewart was a lawyer 6 other than to give her a cover to commit her crimes and to help 7 her mislead and defraud the United States. Did she engage in 8 lawyering at some point after the trial? Certainly in the 9 appeal and maybe more afterwards. And no one is saying and no 10 one from the government has ever said to you or asked you to 11 conclude, and you don't have to conclude, that every action 12 that Lynne Stewart took was illegal. 13 Let me give you an analogy or an example here. Let's 14 imagine a man walks down the street every day and he walks by a 15 bank as he goes to work. And sometimes he stops at the bank 16 and he makes a deposit, and another day he stops and he pulls 17 out some money. And he does that day in, day out over the 18 course of weeks. Walks by the bank, goes into the bank, takes 19 some money out, puts some money in. When he does that, he is a 20 customer. But come one day if goes into that bank and he robs 21 it, he is a bank robber, and he should be charged and convicted 22 of it. It doesn't matter that he just walked by the bank on 23 all those other days and went in and put money in and took 24 money out. 25 In fact, Judge Koeltl will instruct you that a single SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12143 51BMSAT1 Rebuttal 1 fact can be enough to make someone guilty of participating in a 2 conspiracy. Lynne Stewart is an attorney. She acted as an 3 attorney for Abdel Rahman in his trial and she may have done 4 some semblance of lawyering after the appeal as well. But it 5 doesn't matter. It does not matter. Because if you break the 6 law you only have to do it once to commit a crime. When you 7 break the law you don't get out of it by saying, well, last 8 year I didn't break the law or, as Mr. Tigar said, 99 percent 9 of my life I didn't break the law. Just 1 percent. Or I'm a 10 lawyer. Because no one is above the law. 11 Let's get straight to the heart of how Lynne Stewart 12 wasn't acting as a lawyer but how Lynne Stewart obliterated the 13 line between lawyering and crime by issuing the withdrawal of 14 support for the ceasefire. Mr. Tigar claims to you that this 15 is -- was not a pro violence statement. At this trial all the 16 lawyers for the defenses called it a peace initiative. But you 17 don't take the violence out of something by changing its label 18 and that's not what Lynne Stewart called it when she spoke to 19 Esmat Salaheddin. She called it a ceasefire. 20 Let's look at the plain words of what she said, the 21 kind of thing that she likes to interpret through bubbles and 22 spaces. Let's look at what she actually said. Omar Abdel 23 Rahman withdraws his support for the ceasefire. These were her 24 words. And ceasefire means don't fire. This is a terrorist 25 group that has killed people. Ceasefire. And withdrawal of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12144 51BMSAT1 Rebuttal 1 support for it has only one meaning. It means that you don't 2 support the idea of not firing. They are trying to make it 3 complicated, but it is not. It is simple. Lynne Stewart calls 4 it a ceasefire when she talks about it, not an initiative. And 5 so she knew it was a choice between firing and not firing, 6 between violence and between peace. 7 You know, even if you call it a peace initiative, 8 which Lynne Stewart did not, even Ahmed Sattar told you that 9 they are just two different names for the same thing because 10 the bottom line here is, these three defendants together 11 relayed Omar Abdel Rahman's withdrawal of support for peace to 12 the world. And what is the withdrawal of support for peace? 13 It is support for war. It is support for violence. 14 Now, Lynne Stewart claimed to you on the stand that 15 she thought that the ceasefire wasn't a call for violence and 16 it was just about dialogue and talking. And Mr. Tigar said to 17 you, let's pretend that the ceasefire is like the Hatfields and 18 the McCoys, but then he said, no, not the Hatfields and McCoys, 19 because that wasn't a very good analogy because they actually 20 killed each other. So then he said, "let's pretend" -- he 21 said: Let's pretend it is "two community groups have agreed 22 not to disparage each other anymore because they had just been 23 feuding and fussing and fighting." 24 Now, Mr. Tigar can pretend all he wants, but this was 25 a ceasefire by a terrorist group that has killed innocent SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12145 51BMSAT1 Rebuttal 1 people, including the tourists in Luxor. And Abdel Rahman 2 isn't just some regular guy in this debate. He is the 3 spiritual leader of that group. That is why Sattar and Taha 4 worked so hard for so long to get his support for their cause, 5 a return to a campaign of violence, not just to start a 6 conversation. 7 And if it wasn't such a big deal, as Mr. Tigar tries 8 to suggest to you, why was it on the -- why was it front page 9 news in all the Arabic daily newspapers in the Middle East? 10 The argument that they are making to you is absurd. But even 11 if you give some credence to the idea that Lynne Stewart 12 thought that part of the ceasefire was about dialogue and not 13 just violence, Lynne Stewart admits to you on the stand that 14 she knew that an aspect of it was violence. This is the 15 transcript, page 7647 and 7648: 16 "Q. And what was your understanding at the time? I'm talking 17 '97, '98 about the peace initiative. What did you understand 18 that to be? 19 "A. Well, it was the cessation of resistance, armed resistance 20 in many cases by the Islamic Group." 21 So Lynne Stewart understood that the withdrawal of 22 support for the ceasefire meant pro violence and pro armed 23 resistance. And if she thought it just meant to talk, she 24 would have and she could have said, Abdel Rahman wants you to 25 debate. But she didn't. She said he withdraws his support for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12146 51BMSAT1 Rebuttal 1 the ceasefire. And their argument to you to the contrary is 2 absurd and an insult to your intelligence. 3 Now, what else do you know from the evidence that 4 shows you that Lynne Stewart cannot be believed when she claims 5 to you that she thought that the ceasefire was not pro 6 violence? What did she try to tell you about Abdel Rahman? 7 She referred to Abdel Rahman -- this is the transcript, page 8 7934 and "the Sheikh who was never convicted per se of 9 violence." Did she think that you forgot the evidence? 10 Because you know that it is true, as Judge Koeltl told you, 11 because he took judicial notice of it that Abdel Rahman was 12 convicted of "seditious conspiracy, solicitation of crimes of 13 violence, conspiracy to murder and bombing conspiracy" and "was 14 sentenced to a term of life imprisonment." 15 And you know that she knew that the conviction was 16 based on allegations of conspiracy to wage a war of urban 17 terrorism by blowing up tunnels, bridges, landmarks, and 18 soliciting the murder of Hosni Mubarek. Not convicted of 19 violence? That's absurd. And it lets you know that you have 20 to reject her claim to you now that she thought the withdrawal 21 of support was not pro violence. 22 Let me put it to you this way. Let's put it on a 23 common-sense spectrum of some of the voices that you heard in 24 this case from the pro violence side over here to the not pro 25 violence, to the pro ceasefire, pro peace side over here. Who SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12147 51BMSAT1 Rebuttal 1 spoke in favor of or in favor of violence in this case or 2 refused to allow the speaking in favor of violence? Well, over 3 here, against violence, on this side we have got Ramsey Clark 4 and Abdeen Jabara, who wouldn't let the message through. And 5 also over here on this side, but closer in, we have got Salah 6 Hashim and Mustafa Hamza, two leaders of the Islamic Group. 7 That tells you a little bit about the spectrum because Salah 8 Hashim and Mustafa Hamza are leaders of the terrorist group, a 9 part of it that's trying to reform. On the right over here, we 10 have got Omar Abdel Rahman, Mohammed Abdel Rahman, Taha, the 11 fatwah. Where does the withdrawal of support for the ceasefire 12 fit that these three defendants obtained from Abdel Rahman? 13 Where is Lynne Stewart on this? Over here. 14 Now, Lynne Stewart issued this directive and blessing 15 of a return to violence knowing what it meant, that when Omar 16 Abdel Rahman withdraws his personal support for a ceasefire, it 17 is powerful. This is not what I am going to say now based on 18 newspapers found in her office, but based on her testimony on 19 the witness stand to you. Lynne Stewart knew that Abdel Rahman 20 and his words inspired violence, that he was convicted for what 21 he said, not for going out and actually physically harming 22 people himself because he has always been blind since he was a 23 child. So his weapons were his words. 24 And she knew, transcript page 7471, when she first 25 took his case that he "advocated violence." "That was part of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12148 51BMSAT1 Rebuttal 1 his background and program." "I don't think there was much 2 question about that." 3 And then transcript page 7472, when she first took the 4 case she knew that Abdel Rahman was referred to as your 5 Eminence, and she described him as "a prince of the church" and 6 knew that that was the fundamentalist church and he was a 7 fundamentalist leader in Egypt starting in the late 1970s. 8 She knew in 1996 it had been reported that Abdel 9 Rahman had issued a fatwah about the United States that went 10 like this: "Sever the ties of their nation. Tear them apart. 11 Ruin their economy. Instigate against their corporations, 12 destroy their embassies, attack their interests, sink their 13 ships, and shoot down their airplanes, kill them on land, at 14 sea and in the air, kill them wherever you find them." That's 15 at the transcript, page 7636. 16 She also told you that she relied on Nasser Ahmed, 17 7648, to get information about the political situation in Egypt 18 as it affected Abdel Rahman. You know from Government Exhibit 19 2666, which was found in her office in which she relied upon, 20 she told you that Nasser Ahmed testified in his immigration 21 hearing -- and she was his lawyer, so she was there -- that he 22 believed that the Islamic Group was a violent group and that 23 Nasser Ahmed wanted nothing to do with it. So she heard that 24 from her client, a guy she relied upon to get information about 25 Egypt. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12149 51BMSAT1 Rebuttal 1 She also knew, transcript page 8359, that the Luxor 2 massacre was carried out in Abdel Rahman's name and that it was 3 reported that leaflets were left on the scene saying that it 4 was inspired by Abdel Rahman, not done by him, but done for 5 him, to get him out. She also said to you that she knew that 6 Abdel Rahman was "a person of great respect, a person who was 7 noticeable, a person who could not be ignored," transcript 8 7699. A very public figure for a long time, transcript 7772. 9 A world figure. People have a right to hear his points of 10 view. 11 And she said that she knew that his followers wrote to 12 him to get "his interpretation of Islamic law," transcript 13 7721. And you know that's what Sattar and Taha were doing, 14 getting an Islamic law justification for violence. She knew 15 that Abdel Rahman was tried and convicted of serious crimes of 16 terrorism, and she is not bound by this. That's right. Judge 17 Koeltl instructed you that. 18 But what do her actions after the conviction tell you 19 about her knowledge, intent, and state of mind? It tells you 20 what her view is of the outputs of the rule of law and the 21 legal system when it clashes with her personal view. She 22 ignores it or rejects it. She also knew, transcript page 8129 23 and 30, that Abdel Rahman was influential with the Islamic 24 Group and his input was "very important" to the group, even 25 after he was sentenced and cut off from any direct contact. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12150 51BMSAT1 Rebuttal 1 She knew all these things, his pro violence views, his 2 influence, and his power, how the Islamic Group and its members 3 and fundamentalists in Egypt listen to him. But nonetheless 4 she issued his withdrawal of support for the ceasefire and 5 blessing of a return to violence not just once, but twice, to 6 Esmat Salaheddin on June 13, and then again in the 7 reaffirmation on June 20 or 21. 8 Now, before I continue on further I want to make a few 9 quicker points. Mr. Tigar mentioned the burden of proof a lot 10 in his summation. And the government has the right and the 11 privilege to go last because there is no place else that the 12 burden of proof lies other than our table, to prove the charges 13 beyond a reasonable doubt. And we welcome that burden and we 14 have met it on each and every charge. 15 But there is an interesting thing about the burden of 16 proof and the defendants have none. I guess when you have no 17 burden you figure you can engage in all kinds of speculation. 18 But the fact that the government has the burden of proof and 19 the defendants don't have to prove anything is not a license to 20 say that you proved something when all you've done is given the 21 jury speculation and not evidence. 22 Let me give you an example of something that Mr. Tigar 23 talked about twice in his summation, once last week and once 24 yesterday. Last week he said: "Now we get to it. What 25 happened? What did the Sheikh say, number one? What did the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12151 51BMSAT1 Rebuttal 1 Sheikh say? What didn't he say? Omar Abdel Rahman is saying 2 it is the people inside Egypt. He uses that terminology, those 3 inside, those who know. He is by his locution excluding Taha. 4 Abdel Rahman doesn't want this guy, meaning Taha, involved in 5 the leadership of whatever is left in the Islamic Group." 6 What does the evidence really show about what Abdel 7 Rahman really thought about what Taha's role should be in the 8 Islamic Group? Government Exhibit 1710X, page 49. This is 9 Abdel Rahman speaking. Also, tell them that they should give 10 Abu Yasir his natural right as the head of the group. If they 11 don't want to do so, the least is to have the person in charge 12 consult with him. Huh? 1710X, page 49. I'm not sure what 13 Abdel Rahman's locution was, but when Abdel Rahman says, give 14 Taha his natural right as the head of the group, it sure sounds 15 like Mr. Tigar is wrong when he is saying that Abdel Rahman 16 says, I don't want Taha to have anything to do in the 17 leadership of the group. When Mr. Tigar tells you something, 18 check it against the evidence. 19 By the way, in the course of making this incorrect 20 argument, Mr. Tigar read to you a line regarding whether Abdel 21 Rahman should say that the Islamic Group should take Taha back 22 in the shura council, the kind of board of directors of the 23 group. And there was one line in what he read that stuck out 24 to me and I want to read it to you again. No, no, no -- this 25 is Abdel Rahman -- I cannot. They are free to do what they SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12152 51BMSAT1 Rebuttal 1 want. I can't. It is their business. And if I come out and 2 say that, they will be forced to take him back, and I don't 3 want it this way. Abdel Rahman says, if I say so, the Islamic 4 Group will be forced to do what I say because I say so. How 5 did that line help Lynne Stewart? It doesn't. It kind of 6 blows a hole in the defendant's theory that Abdel Rahman did 7 not have the power to make things happen in Egypt. 8 Now, I am not going to go through Mr. Tigar's 9 summation line by line and try to pick little pieces of it 10 apart. Mr. Tigar isn't on trial here, just like Mr. Dember 11 isn't on trial here and the government isn't on trial. Lynne 12 Stewart is on trial. So I am going to focus on the evidence on 13 Lynne Stewart. 14 But I want to say one more thing about the burden of 15 proof. The fact that the government has the burden of proof 16 and the defendants have no burden to do anything is not a 17 license to ramble on about things that have nothing to do with 18 the case in an effort to confuse. And then to tell the jury 19 that you have actually done something when you haven't and all 20 you have done is given the jury theories that aren't based on 21 the evidence, think about it. Were there times when Mr. Tigar 22 was talking to you when you had to ask yourself why is he 23 talking about this? What charge or what evidence does this 24 relate to? How does this relate to the question of what we are 25 here to answer, whether Lynne Stewart is guilty or not guilty? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12153 51BMSAT1 Rebuttal 1 Is he talking about the allegations and the charges in the 2 case? 3 MR. TIGAR: I object to attributing motives to 4 counsel. 5 THE COURT: Sustained. 6 Ladies and gentlemen, another instruction that I will 7 give you is the case is about the evidence. It is not about 8 the lawyers. And it is your function to assess the evidence or 9 lack of evidence under my instructions on the law. 10 MR. BARKOW: I am not asking you to think about what 11 Mr. Tigar's motivations were. All I'm asking you to do is to 12 focus on the evidence and to base your decision on the evidence 13 in this case because the evidence proves that Lynne Stewart is 14 guilty as charged. And no matter what, any of the lawyers say, 15 the government has the burden to prove to you by evidence that 16 actually proves things, a burden that we have met with the 17 evidence in this trial. Mr. Tigar argues to you and says to 18 you that the only evidence you can really trust is what you see 19 in the courtroom so you can see a witness and a lawyer could 20 cross-examine. Only a lawyer could say that because you don't 21 need to be a lawyer to know that the best way to know how 22 something really happened or didn't happen and how something 23 was really said or wasn't said is to see it or hear it 24 happening yourself. And that is what happens when you tape 25 something, you see it happen yourself and you hear it happen SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12154 51BMSAT1 Rebuttal 1 yourself as it is happening, when it happened. 2 Now, which do you think is more reliable, the tapes of 3 statements made in the setting when things actually happened, 4 when people don't know that they are being monitored or taped, 5 or statements that you know are made in a certain way to avoid 6 getting convicted here in court? 7 Recordings and the recordings that we presented are 8 the best possible evidence of what happened when it happened. 9 They cannot lie; unlike people, who can and your experience and 10 your common sense tells you do. Or a defendant who has every 11 reason to lie. And Mr. Tigar can say that he doesn't like 12 recorded evidence or he prefers testimony because he is from 13 the old school. But why doesn't Lynne Stewart want you to 14 focus on recorded evidence? Because the recorded evidence 15 can't lie. And because the recorded evidence shows that Lynne 16 Stewart was caught redhanded and that Lynne Stewart is guilty 17 as charged. 18 Now, Mr. Tigar argues to you that Lynne Stewart's 19 false statements were not material because Ramsey Clark signed 20 fewer affirmations than Lynne Stewart. And first, materiality 21 is an element of Count 6 and 7, the false statements charges. 22 First I want to point out that this argument can only even 23 apply, the argument that Mr. Tigar made, to Count 6. Because 24 both Ramsey Clark and Lynne Stewart signed exactly the same 25 affirmation that forms the basis for Count 7 against Lynne SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12155 51BMSAT1 Rebuttal 1 Stewart. This argument is only limited to Count 6 in the first 2 place. 3 More importantly, this argument is a distraction from 4 the actual evidence. Because the issue of materiality relates 5 to Lynne Stewart's affirmation, not to Ramsey Clark, and the 6 question is whether Lynne Stewart's false affirmation was 7 material. Judge Koeltl will instruct you that a statement is 8 material if it could have influenced the government's 9 activities; indeed, that the government doesn't even have to 10 prove that the government was actually misled. So it doesn't 11 matter whether the government was actually misled, just whether 12 the government could have been misled. 13 And Lynne Stewart's promise to abide by the SAMs, 14 which she broke in her affirmations, under that definition was 15 material because Lynne Stewart, you know, couldn't see Abdel 16 Rahman without making that promise. She couldn't see Abdel 17 Rahman without it. She could only see him with it. So it was 18 obviously material because it could have influenced the 19 government's decision whether to let Lynne Stewart see Abdel 20 Rahman or not. It actually did influence the government's 21 decision. She couldn't do it unless she signed. 22 And it just isn't true that Ramsey Clark was allowed 23 to see Abdel Rahman without signing an affirmation. Ramsey 24 Clark never visited Abdel Rahman after the imposition of the 25 SAMs without previously having signed an affirmation, never. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12156 51BMSAT1 Rebuttal 1 Ramsey Clark signed an affirmation in April of 1997, when the 2 SAMs were first imposed on Abdel Rahman. So it is clearly 3 impossible for Ramsey Clark to be on a call after the SAMs or 4 to do a visit after the SAMs if he signed an affirmation when 5 the SAMs were first imposed on Abdel Rahman. 6 And the first Ramsey Clark visit of which there is 7 evidence in this case is September 1999, which is after Ramsey 8 Clark signed the affirmation in 1997. So after the SAMs were 9 imposed Ramsey Clark never spoke to Abdel Rahman or visited 10 Abdel Rahman without having previously signed an affirmation. 11 Also, when Ramsey Clark, Abdeen Jabara, and Lynne Stewart would 12 not sign the new affirmation in the fall of 2000, after Lynne 13 Stewart had issued Abdel Rahman's withdrawal of support for the 14 ceasefire, Ramsey Clark couldn't visit Abdel Rahman for a few 15 weeks later because the affirmations are material and a failure 16 to sign them could have influenced the government's decision. 17 It actually did. Because the purpose of the affirmations was 18 to protect public safety and lives, and that is important and 19 material. 20 Now, a moment about technical issues about the 21 recordings. Come on. Enough already. The recording system 22 worked. Each defendant testified -- they didn't have to 23 testify, but they did. And each defendant said on the stand 24 that the parts of the calls that were recorded were recorded 25 accurately. And no defendant told you about any particular SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12157 51BMSAT1 Rebuttal 1 call that they had remembered or that wasn't recorded, not one. 2 And each defendant put in their own recordings from the same 3 system so they obviously believed that those recordings were 4 accurate. And the prison visits, which are absolutely 5 devastating evidence against Lynne Stewart, those were recorded 6 on a different technology, a technology that Mr. Tigar concedes 7 is one that he approves of. 8 And by the way, Mr. Paul complained about some missing 9 calls in late September 2000 and early October 2000. 10 Mr. Sattar sat on the witness stand, he didn't have to get 11 there, but he sat up there for two weeks and he gave all the 12 context that he wanted. He talked about Arial Sharon and what 13 was happening in the Middle East. And if there were any calls 14 that Mr. Sattar thought were important he would have said so. 15 Just like Lynne Stewart told you about a call that she had in 16 her office which was not intercepted because there was never 17 any monitoring on Lynne Stewart's phones, but a call that she 18 had in her office with Pat Fitzgerald that she remembered. So 19 she told you about it because she remembered it. If the 20 defendants knew of any call that wasn't captured by this 21 system, they would have told you. So come on. Let's not waste 22 any more of your time on this. Lynne Stewart issued a 23 withdrawal of support for the ceasefire by Abdel Rahman. She 24 lied in her affirmations. She broke her promises and now she 25 is lying to get out of it. Let's talk about that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12158 51BMSAT1 Rebuttal 1 Let's talk now about the make believe, unwritten, I 2 can do what I want no matter what the rules say, bubble, the 3 one that Lynne Stewart made up just for you for this trial. 4 What is this bubble? It rears its imaginary head under a 5 variety of names. Sometimes Lynne Stewart or Mr. Tigar called 6 it the bubble. That's what Lynne Stewart called it on the 7 stand. And sometimes they call it a space. That's what 8 Mr. Tigar started calling it for the first time in his 9 summation. Sometimes it is called zealous representation. 10 Lynne Stewart linked those two concepts on the stand. 11 Sometimes it is called her ethical obligations or the ethical 12 considerations. Sometimes it is called the Constitution. 13 Sometimes it is called the commentary to the SAMs which were 14 found in Government Exhibit 2635, Lynne Stewart Exhibit 204, 15 and Lynne Stewart Exhibit 205. Sometimes it is just referred 16 to as I thought it was okay under the SAMs to do what I did. 17 Sometimes the bubble is called Ramsey Clark and sometimes it is 18 called Abdeen Jabara. Sometimes it is called good faith. 19 Sometimes it is called, I didn't violate any legal duty that I 20 think I had. All of that falls under the bubble. And so when 21 I use the term bubble, just like Lynne Stewart and Mr. Tigar, 22 I'm referring to all those things. 23 What is this bubble or space or whatever you want to 24 call it? What does it really boil down to? The bubble is 25 Lynne Stewart's claim to you now that she thought there was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12159 51BMSAT1 Rebuttal 1 some mythical idea outside the plain and clear language of the 2 SAMs and the affirmations that allowed her to blow off clear 3 rules and clear language. The bubble is another way for Lynne 4 Stewart to say that she disagreed with the law. And she 5 thought she could ignore it. And by the way, in his summation 6 Mr. Tigar incorrectly said to you that "good-faith disagreement 7 with the law is not a basis for a conviction." That is just 8 flat wrong. And I ask you to listen to Judge Koeltl's 9 instructions because he will tell you that disagreement with 10 the law does not constitute good faith. 11 The bubble is just a way for Lynne Stewart to say that 12 she thinks she is above the law, so she thought she could 13 ignore the law. And it is a lie that Lynne Stewart concocted 14 just for you. Because Lynne Stewart knew when she did what she 15 did, it was wrong. She knew what she was doing was unlawful 16 and that is all that needs to be proven and that you need to 17 find. She knew she was committing a crime, but she did it 18 anyway because she thought she was above the law, not because 19 she was acting in good faith. Now she is lying to get out of 20 it. 21 The language of the SAMs is absolutely crystal clear, 22 the plain text of the SAMs, that Lynne Stewart violated and 23 committed crimes by circumventing them and defrauding the 24 United States and lying in her affirmation. Therefore, Lynne 25 Stewart is guilty of Counts 1, 6, and 7. And so she needs to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12160 51BMSAT1 Rebuttal 1 lied to you to make something up to try to get out of trouble. 2 She will try anything. The bubble, the space, ethical 3 considerations, good faith, the commentary to the SAMs. And 4 these lawyers did not like it or said that we shouldn't have 5 said that the SAMs were crystal clear and the affirmations were 6 not crystal clear. But there is no other word to describe the 7 relevant paragraphs here. 8 The December 10, 1999 SAMs said that there is no 9 communication allowed with the media through attorneys and no 10 communications allowed with others that could result in 11 communicating terrorist information. Paragraph 9: "The inmate 12 shall not be permitted to communicate with any member or 13 representative of the news media through his attorneys or 14 otherwise: Giving a press release to Esmat Salaheddin that 15 relays Abdel Rahman's withdrawal of support for the ceasefire 16 clearly violates this." 17 Paragraph 3: "The inmate is limited from having 18 contact with others that could reasonably foreseeably result in 19 the inmate communicating information that could circumvent the 20 SAM's intent of significantly limiting the inmate's ability to 21 communicate terrorist information." 22 Communicating information back and forth between two 23 people designated by the U.S. Government as terrorists and that 24 you know are so designated, Taha and Abdel Rahman, on whether 25 the Islamic Group should abide by a ceasefire or return to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12161 51BMSAT1 Rebuttal 1 violence? Obviously violates that. 2 And the May 2000 affirmation, that's crystal clear, 3 too. Lynne Stewart said she would abide by the SAMs and she 4 would use her visits only for legal matters. And she won't 5 forward messages to the media. Paragraph 1 says: "I have read 6 the SAMs" -- it says that she has read the SAMs and it says: 7 "I agree to abide by its terms." Paragraph 2 says: "I also 8 understand that during any visits to inmate Abdel Rahman at any 9 prison facilities I shall only be accompanied by translators 10 for the purpose of communicating with Abdel Rahman concerning 11 legal matters. 12 Communicating with Abdel Rahman about whether the 13 Islamic Group should abide by a ceasefire or not is not a legal 14 matter. And Mr. Dember must have stood up here and argued for 15 30 minutes about how the withdrawal of support for the 16 ceasefire had absolutely nothing to do with legal 17 representation. He went through all of the different sorts of 18 legal representation it could have had to do with that he went 19 over with Ms. Stewart on the stand, conditions lawsuit, 20 clemency from the president, finding of new evidence, an 21 international prisoner transfer, or exchange that Ramsey Clark 22 was working on. He went through all of them. 23 He asked her, what other things could you do? What 24 other kinds of legal things could you do in general? And 25 Mr. Dember argued to you that none of them were accomplished or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12162 51BMSAT1 Rebuttal 1 furthered by the withdrawal of support for the ceasefire. And 2 Mr. Tigar did not say one word to disagree with that or 3 challenge it over three days. Because the withdrawal of 4 support for the ceasefire has nothing to do with any legal 5 matter and there is no answer to what Mr. Dember said. The 6 withdrawal of support for the ceasefire violates the SAMs and 7 the affirmations. 8 Paragraph 3 of the affirmation: I further understand 9 that neither I nor any member of my office shall forward any 10 mail received from inmate Abdel Rahman to a third person, nor 11 shall I use my meetings, correspondence or phone calls with 12 Abdel Rahman to pass messages to third parties, including but 13 not limited to the media and Abdel Rahman. Relaying Abdel 14 Rahman's withdrawal of support to Esmat Salaheddin obviously 15 violates that. And Mr. Tigar did not challenge Mr. Dember's 16 argument on that either over the course of his summation. 17 Because there is no challenge that could be mounted because the 18 withdrawal of support for the ceasefire violates paragraph 3 of 19 the affirmation. 20 So because it is clear that Lynne Stewart violated the 21 law by circumventing the SAMs and defrauding the United States, 22 she needs to fabricate something, the bubble, the ethical 23 considerations, the commentary to the SAMs, the space, what 24 have you, to try to get out of it. But it all boils down to 25 this. She knew what she did was unlawful at the time. She SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12163 51BMSAT1 Rebuttal 1 thought she was above the law and she didn't act in good faith. 2 And she thought she would get away with it. She disagreed with 3 the law and she decided to blow it off and she is lying to you 4 now. 5 How do you know that this bubble is made up just for 6 you? This bubble makes no sense and it cannot possibly be true 7 that Lynne Stewart believed in it at the time she did what she 8 did and that she believed she could lawfully do what she did, 9 because to believe in it makes the SAMs and the affirmations 10 absolutely pointless. What do I mean by this? The SAMs only 11 allow Abdel Rahman to talk in the whole world to his lawyers 12 and his wife. 13 So if the lawyers are free to release statements by 14 Abdel Rahman to the media that they deem necessary under the 15 guise of a lawyering bubble, that withdrawal of support for a 16 ceasefire, the SAMs accomplished nothing. What do the SAMs 17 accomplish if she is right? What do they stop? They sure 18 don't accomplish the purpose of "to protect persons from the 19 risk of death or serious bodily injury" and "when there is a 20 risk that a prisoner's communications or contacts with persons 21 could result in death or serious bodily injury." They sure 22 don't accomplish that if they allow the withdrawal of support 23 for the ceasefire through. 24 That purpose of the SAMs is expressed in the 25 regulation that Lynne Stewart said she knows about and she SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12164 51BMSAT1 Rebuttal 1 claims now to be relying upon, Government Exhibit 2635 and 2 Lynne Stewart Exhibit 204. And Mr. Tigar agreed in his 3 summation that that's a valid purpose, to protect human life. 4 Lynne Stewart, transcript page 7831, isn't quite as sure that 5 that's a valid purpose, even though she agreed in the end. 6 This is on direct examination, questioning by Mr. Tigar, not on 7 cross-examination: 8 "Q. And did you agree that it would be a valid purpose to 9 prevent threats that could lead to a loss of life? 10 "A. You mean generally speaking? 11 "Q. Yes, generally speaking. 12 "A. Yes, I guess that is so, yes." 13 Transcript page 7831. Her bubble, if she were truly 14 telling the truth about it, would have meant business as usual, 15 no different than any other client she had ever had. And she 16 wants you to think that she thought it was business as usual 17 and that it was business as usual. 18 And Mr. Tigar argued to you yesterday that it was 19 business as usual, or the day before. He asked you to look at 20 the ethical considerations that he put up on the screen, look 21 at them outside the context of representing terrorists, outside 22 the context of representing Abdel Rahman. But you can't do 23 that because that's who she was representing and she knew that. 24 She wants you to believe that this was no different than any 25 other case or any other client and that anything goes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12165 51BMSAT1 Rebuttal 1 But it wasn't business as usual and she knew it 2 because she had been a lawyer since 1971. And she had never, 3 ever had another defendant under SAMs. She said that, 4 transcript 8035 to 41. And she had never had another defendant 5 for whom she had to sign an affirmation saying she would abide 6 by rules imposed on that defendant, never, same pages. She 7 didn't even know of virtually any other defendant subject to 8 SAMs. She could only name two of them. One of them was Ramzi 9 Yousef and she also said some gang leaders. She knew that 10 Abdel Rahman was subject to the SAMs. She knew about Abdel 11 Rahman and his crimes. And she knew and she said on the stand 12 that the only defendants subject to these types of SAMs -- and 13 she only had this one -- committed very serious crimes. 14 So for her to say now that she thought that she could 15 act like she did with any other defendant, any nonSAM'd, 16 nonaffirmation'd defendant is just not true because she knew 17 that this was different. So different that this inmate had 18 special rules imposed on him for the first time in her long 19 career, so different that she had to promise for the first time 20 in her long career to abide by those special rules, a promise 21 that she made and a promise that she broke. 22 Lynne Stewart never mentioned the concept of the 23 bubble under any name or that it was okay under the SAMs to 24 talk to the media, to anyone back in the evidence that we 25 showed you, and I am going to go through that. And in fact she SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12166 51BMSAT1 Rebuttal 1 said the opposite. Transcript page 8224, she didn't write 2 anything about it in her affirmations, the promise that she 3 made but that she broke, and you saw that Abdeen Jabara, Ramsey 4 Clark, and Lawrence Schilling wrote additional things in 5 theirs. The Ramsey Clark affirmation is Government Exhibit 6 906. It is at the bottom. The Abdeen Jabara affirmation, 7 Government Exhibit 608, it is at the bottom. The Larry 8 Schilling affirmation, Mohammed Yousry Exhibit 604, it is at 9 the bottom. 10 Mind you, what they wrote doesn't have anything to do 11 with the bubble or talking to the media or relaying Abdel 12 Rahman's statements of any kind to the media. But they wrote 13 it in there, what they wanted to put in there. What a 14 revolutionary idea, to write something in an agreement that you 15 believe in that isn't in there? 16 Lynne Stewart acknowledged to you that law students 17 learned this concept in their very first year of law school in 18 a class called contracts. They learned that you need to put 19 important terms in your contract, in your agreements, and 20 nonlawyers know this, too. Lynne Stewart says that she 21 believed, transcript, page 7717, that she thought Pat 22 Fitzgerald was too good of a lawyer not to know that the bubble 23 existed. She said on that page, 7717. 24 (Continued on next page) 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12167 51B5SAT2 Rebuttal Summation - Mr. Barkow 1 MR. BARKOW: If she really believed that she could 2 issue press releases despite the SAMs and the affirmations as 3 part of her representation of Abdel Rahman, don't you think she 4 would have written it in there if she truly thought that Pat 5 Fitzgerald was too good a lawyer not to know that this bubble 6 existed? 7 If she believed he agreed with her why wouldn't she 8 ask him to put it in there? He agreed with her, she says. He 9 knew it was there too. She didn't ask him. Why didn't she put 10 it in there? Because the concept didn't exist until a few 11 months ago. This bubble concept is so new that Mr. Tigar 12 didn't even mention the word in his opening statement. He 13 didn't have to give an opening statement, Lynne Stewart didn't 14 have to testify, but he did give an opening statement and in it 15 he promised she would testify. But Mr. Tigar never mentioned 16 the words bubble. 17 In fact, the first time the word bubble was mentioned 18 in this courtroom was on October 27th of 2000 on the second day 19 that Lynne Stewart was on the witness stand. Why? Because the 20 concept did not exist until she hit that witness stand because 21 she didn't think about it -- 22 MR. TIGAR: Your Honor, object to describing 23 motivations of counsel in opening statement. 24 MR. BARKOW: I'm speaking about Ms. Stewart's 25 motivation. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12168 51B5SAT2 Rebuttal Summation - Mr. Barkow 1 THE COURT: To the extent it referred to any 2 motivation of counsel, the objection is sustained. 3 I have already explained to you, ladies and gentlemen, 4 that the case is not about any of counsel in the case but the 5 evidence or lack of evidence with respect to each of the 6 defendants and my instructions on the law. Okay? 7 Go ahead. 8 MR. BARKOW: As I was saying, why didn't Lynne Stewart 9 mention the bubble and why wasn't it mentioned until then? 10 Because it didn't exist until she had hit the stand. 11 How do you know that the bubble and the concept that 12 it is okay under the SAMs to do what she did was made up just 13 for you? She never mentioned it, she never mentioned the 14 bubble or the concept that it was okay to do under the SAMs 15 what she did to a Court or a Judge. She never filed a lawsuit 16 trying to vindicate this idea that she could issue statements 17 by Abdel Rahman about violence or peace. She never tried to 18 get a judge to agree to it. Why not? Because the concept was 19 made up just for you and because no judge would have bought it. 20 How else do you know that the concept of the bubble, 21 that it was okay under the SAMs, was made up just for you? She 22 never mentioned it or that, the bubble, that it was okay under 23 the SAMs to do what she had done to Pat Fitzgerald when she was 24 called and confronted by him, transcript 8221 and 8222 -- I'm 25 sorry, she thought that Pat Fitzgerald was in charge of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12169 51B5SAT2 Rebuttal Summation - Mr. Barkow 1 administering the SAMs, that's at 8221 and 8222, and she never 2 told him. 3 She never asked him whether it was okay to release 4 these kinds of statements to the media. She didn't tell him 5 when he called her and confronted her with what she had done in 6 June of 2000 and accused her of violating those SAMs in a five 7 minute phone call, she told you that; transcript 8457. She 8 never said it in five minutes. How long is five minutes? 9 Let's try five seconds. 10 You give Lynne Stewart five minutes, do you think she 11 would get that idea out? You saw her testify, she's not shy 12 about getting things out that she wants to say but she never 13 mentioned it in those five minutes. 14 Lynne Stewart never mentioned the bubble or that it 15 was okay to do under the SAMs to anyone in the U.S. government. 16 She never called Pat Fitzgerald's boss, Mary Jo White, the U.S. 17 Attorney at the time. She never called anyone at the U.S. 18 Attorney's office at all to say that. She never tried to talk 19 to Janet Reno or get through to Janet Reno or anyone at the 20 Department of Justice or anybody in the U.S. government. 21 Transcript, 2282. 22 And her words to you, transcript 8097 was, quote, 23 picking up a telephone is not really that onerous. It's not 24 but she never picked it up and she never said it to anybody 25 because she made it up just for you. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12170 51B5SAT2 Rebuttal Summation - Mr. Barkow 1 She never mentioned that it was okay under the SAMs to 2 do what she did and smuggle these letters, this letter from 3 Taha back and forth into the jail to the guards when she 4 brought it in. Instead, she hid the letter in her note pad. 5 She didn't say, oh, guards, I've got this letter in my note 6 pad, it's got a message from Taha, somebody might want to look 7 at it. 8 No, she brought it in and whipped it out when it was 9 time to read it. 10 Unlike Abdeen Jabara who, when he was sending in the 11 book, the Taha book, mailed it through the appropriate 12 procedures under the SAMs and it got rejected. 13 Lynne Stewart never mentioned through Stanley Cohen, 14 she never told Stanley Cohen to say she was allowed to do what 15 she did and he was representing her after she had been busted. 16 He was negotiating what to do and talking about what to do 17 after she had been accused and she never mentioned it, told him 18 to mention it. 19 And immediately after the withdrawal of support for 20 the cease-fire, immediately afterwards on June 15th of 2000, 21 Government Exhibit 1115X, she never mentioned it to Lisa 22 Sattar. 23 She was talking to a person she trusted, a friend, a 24 confidant, she had no idea she was being recorded. It was 25 immediately after she committed a crime. She was being candid SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12171 51B5SAT2 Rebuttal Summation - Mr. Barkow 1 about the repercussions that she faced and she had no reason to 2 lie versus now when she has every reason to lie, and that's how 3 you know her real state of mind and her real intent -- from 4 what she said then, not from her canned testimony years later 5 to save her skin. 6 What does she say to Lisa Sattar? Quote, I don't 7 think I can hide this from Pat Fitzgerald. 8 And then she laughs. She laughs at how she defrauded 9 the United States and lied in her affirmation. And if Lynne 10 Stewart thinks that Pat Fitzgerald is too smart and too good of 11 a lawyer to know that the bubble doesn't exist, 7717 of the 12 transcript, like she says now, why does she need to keep it 13 away from him? If there is nothing wrong with it why does she 14 need to hide it from him. She doesn't say, oh, Lisa, don't 15 worry about it, I've got it covered. I was allowed to do what 16 I did under the SAMs, it was okay under the SAMs. I practice 17 law in a bubble. I practice law in a space. The ethical rules 18 or the ethical considerations, they let me do what I did. 19 The commentary to the SAMs, take a look at that, the 20 SAMs themselves say that I could do it. Pat Fitzgerald, he's 21 too good of a lawyer to know that this bubble doesn't exist. 22 I'm okay, don't worry about it. 23 She never said any of that because she made it all up 24 for you. And Mr. Tigar tries to spin it for you as not as I 25 tried to hide this from Pat Fitzgerald, which is what Lynne SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12172 51B5SAT2 Rebuttal Summation - Mr. Barkow 1 Stewart actually said, but as I did this in the open so she 2 must have thought it was okay. 3 Right. She did it in the open. 4 Like a bank robber who robs a bank in the daylight and 5 gets caught on camera, Lynne Stewart released Abdel Rahman's 6 statement in the open to the media. She couldn't hide it and 7 she got busted and now she's sitting here before you. 8 And then Lisa Sattar asks Lynne Stewart, she says, 9 well, I asked Ahmed if anything is going to happen to you and 10 Lynne Stewart says, quote, probably. We'll deal with that too. 11 Maybe it's the right thing. Then we can fight the Sheikh's 12 fight on that ground too, you know? 13 She doesn't say, Ahmed, ask Ahmed if anything is 14 happening don't worry about it, I've got it covered, it's okay. 15 I was allowed to do it. It was okay under the SAM. It's not a 16 problem. It was in a bubble, I practice law in a space, the 17 ethical rules, the constitution, the ethical considerations, 18 they let me do what I did. The commentary to the SAMs, look at 19 those, they say I can do what I did. Pat Fitzgerald is too 20 good a lawyer to know that the bubble doesn't exist and it was 21 okay to do what I did. She doesn't say any of that because she 22 made it all up for you. 23 And then Lisa Sattar says to her, I'm worried for you. 24 And Lynne Stewart says, quote, I can't, you know, I 25 mean, I do things. And when you do things like from principle SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12173 51B5SAT2 Rebuttal Summation - Mr. Barkow 1 because you know they're the right thing to do, then you've got 2 to put it behind you and say, okay, I did it. And that's the 3 reason I did it and I'm going to live with the repercussions 4 whatever they may be because I know it was the right thing to 5 do. And you know, it works for me to do things like that, you 6 know? 7 What is she saying? I know I broke the law because I 8 disagree with the law. 9 And Judge Koeltl will instruct you that disagreement 10 with the law is not good faith. 11 What is she saying? I think what I did was right and 12 if what I think is right conflicts with the law, I'll face the 13 repercussions, whatever they are, but that works for me. 14 His message is going to get out no matter what and I'm 15 prepared to live with the repercussions. I put my principles, 16 his message is going to get out no matter what, above the law, 17 because I disagree with the law. 18 She said to Lisa Sattar she is ready to live with the 19 repercussions, ready to live with the consequences. She 20 expected to be sitting here in this courtroom. She wasn't 21 naive about what was going on. She made a choice and she knew 22 exactly what would happen to her but now she hides behind the 23 bubble and the space. 24 You should be prepared to tell her what the 25 consequences are. And it's essential to have consequences SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12174 51B5SAT2 Rebuttal Summation - Mr. Barkow 1 because that's why the law applies to everyone equally so 2 people, like Lynne Stewart who put her personal principles 3 above the law, no matter how dangerous or risky the 4 consequences, can't make decisions that place the risks and 5 consequences on everybody else. 6 It's essential to have consequences and that's why the 7 law applies to everyone equally because the law takes into 8 account and balances the interests of everyone -- everyone in 9 society including even Lynne Stewart. Everyone's interest and 10 everyone's safety. 11 But when Lynne Stewart puts her personal principles 12 above the law -- his message will get out no matter what the 13 law says and no matter what the risk to everyone else -- that's 14 not what you law says. 15 Lynne Stewart doesn't say to Lisa Sattar, I won't face 16 any repercussions because what I did was legal, I won't face 17 any repercussions because what I did was protected by ethical 18 considerations, I won't face any repercussions because what I 19 did was okay under the SAMs. She says, I'll face the 20 repercussions. My principles are above the law. I will live 21 with the repercussions. 22 Does she live with the repercussions? No. She makes 23 up the myth of the bubble. 24 Your Honor, may we take a break? 25 THE COURT: All right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12175 51B5SAT2 Rebuttal Summation - Mr. Barkow 1 Ladies and gentlemen, we will take 10 minutes. 2 Please, please, remember my continuing instructions. Please, 3 don't talk about this case at all and remember to keep an open 4 mind until I have finally instructed you on the law and you 5 have gone to the jury room to begin your deliberations. 6 All right. All rise, please. 7 (Continued on next page) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12176 51B5SAT2 Rebuttal Summation - Mr. Barkow 1 (Jury not present) 2 MR. TIGAR: If your Honor please, I have two 3 objections to Mr. Barkow's summation in the latter part. 4 First, he said that Lynne Stewart was busted, he 5 referred colloquially to the Fitzgerald letter and Lynne 6 Stewart being busted, and then he went through repeatedly this 7 argument that her alleged silence in the face of the 8 accusations was powerful evidence that her testimony here and 9 her position is fabricated. 10 While it is true that the Court has admitted evidence 11 of silence as in accordance with the Supreme Court's decision, 12 the government's overvaluing of the evidence of silence in the 13 face of a governmental accusation, I respectfully submit, 14 requires an instruction to the jury that a person may be silent 15 in the face of an accusation for many reasons and it is up to 16 the jury to determine what those reasons are. And that I ask 17 for because there is a constitutional underpinning to decisions 18 about silence and the government's deliberate overvaluing of 19 that evidence is prejudicial. 20 Second, I ask for an instruction that the jury should 21 disregard the statement, "people like Lynne Stewart," which is 22 a clear call to the application of propensity evidence. It is 23 not simply overvaluing of the evidence but the laws; or people 24 like Lynne Stewart, people who are engaged in wrongdoing and so 25 on. He said the words "people like Lynne Stewart." It is a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12177 51B5SAT2 Rebuttal Summation - Mr. Barkow 1 call to use propensity evidence and I object. 2 THE COURT: Government? 3 MS. BAKER: Your Honor, nothing that Mr. Barkow argued 4 or that Mr. Tigar just argued as an objection requires any sort 5 of instruction to the jury. 6 Mr. Barkow's argument about how Lynne Stewart 7 responded to being caught and being notified by Mr. Fitzgerald 8 that she had been caught, the point of the argument in which 9 Mr. Barkow used the phrase "busted" was entirely consistent 10 with the applicable law on silence in the face of accusations. 11 The evidence in this case is that Ms. Stewart did not 12 choose to remain silent. She retained Stanley Cohen as a 13 lawyer and a dialogue with Mr. Fitzgerald ensued and it was 14 entirely appropriate for Mr. Barkow to argue that in light of 15 the fact that there was a dialogue, that certain, very 16 significant claims or arguments were omitted from that dialogue 17 so there is simply no basis for any type of an instruction 18 about that portion of Mr. Barkow's argument. 19 And then, as to Mr. Barkow's reference to people like 20 Lynne Stewart when he was making a point that the law applies 21 equally to everyone, Mr. Tigar's request there simply removes a 22 phrase from the context in which it was used. Mr. Barkow was 23 arguing, as I just said, that the law applies equally to 24 everyone, even to people who disagree with it, and that was the 25 context in which he used a phrase like "people like Lynne SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12178 51B5SAT2 Rebuttal Summation - Mr. Barkow 1 Stewart," and it simply has nothing to do with propensity. 2 THE COURT: All right. Taking the issues in reverse 3 order, first, there was nothing about the phrase and the 4 context that suggested, in any way, propensity evidence, and no 5 reasonable person could view it that way and it is not even -- 6 it requires no instruction at all. 7 The first issue is there was -- there was nothing 8 improper about the reference or the argument and as defense 9 counsel appreciates, the Supreme Court has ruled on the 10 admissibility of that type of evidence. 11 It is also true that the -- that the weight of the 12 evidence of violence in the face of an accusation is for the 13 jury under all of the circumstances. And, in fact, that is 14 what the defense counsel already argued there in his summation 15 and asked the jury to infer, what a person in the defendant's 16 position would have done in that conversation given what 17 defense counsel argued at that time was various considerations 18 that the defendant would have taken into account. 19 But I will give an instruction which is, I believe, 20 the correct instruction on the law which could, could be given 21 in the final instructions but both sides have argued it and the 22 correct instruction would be: It is up to the jury to 23 determine the weight of any evidence of silence in the face of 24 an accusation under all of the circumstances. 25 MS. BAKER: Your Honor, the government has no SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12179 51B5SAT2 Rebuttal Summation - Mr. Barkow 1 objection to the Court giving such an instruction as part of 2 the set of overall instructions to be given to the jury at the 3 end of the case. 4 We would ask that it not be given now because the 5 Court has already ruled that Mr. Barkow's argument was 6 appropriate and was an appropriate response to Mr. Tigar's 7 argument. And to give that instruction now, not having given a 8 similar instruction when Mr. Tigar made the other side of the 9 argument, would suggest to the jury that Mr. Barkow's argument 10 was somehow inappropriate. 11 And so, given that both counsel have argued 12 appropriate sides of this issue, we would submit to the Court 13 that the appropriate time to give such an instruction, if at 14 all, is as part of the Court's final jury instructions. 15 MR. TIGAR: We will discuss it with the other counsel 16 and with the client, your Honor, if that's all right with the 17 Court. 18 THE COURT: Sure. Take five minutes. 19 MR. BARKOW: Your Honor, just so the Court is aware of 20 time, I'm estimating, I haven't been that good at it yet, but 21 I'm about 40 percent through and so -- I am doing it by page 22 number on my outline. So, I just wanted to update the Court on 23 that. 24 So, I don't need that long of a break is basically why 25 I was saying that. I would like to finish before lunch, so. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12180 51B5SAT2 Rebuttal Summation - Mr. Barkow 1 THE COURT: What does that mean in terms of time? 2 MR. BARKOW: Well, I don't know when I started, I 3 think I have only been going for an hour and five minutes. 4 MR. PAUL: Quarter to 10 you started. 5 MR. BARKOW: I think I spoke for about an hour so I 6 would say I have an hour and a little bit more. So I don't 7 need that long of a break is basically what I was telling the 8 Court since the jury has had their break. 9 THE COURT: But you are telling me that it is likely 10 that you are not going to be finished before 12:30. 11 MR. BARKOW: Before 12:30, I don't think so. I don't 12 know. It will be close, actually. Actually, what I am saying 13 is it is going to be close and I don't need that long of a 14 break so I just wanted to tell the Court that. I'm sure 15 everyone else may. 16 MR. RUHNKE: Thank you. 17 THE COURT: Five minutes. 18 MR. BARKOW: Okay. 19 (Recess) 20 MR. TIGAR: We do not request an instruction, your 21 Honor. 22 THE COURT: All right. 23 MR. TIGAR: Thank you. 24 THE COURT: If I could instruct the jury today of 25 course I would prefer to instruct the jury today. If I can't, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12181 51B5SAT2 Rebuttal Summation - Mr. Barkow 1 I can't. 2 My own estimate is that it would take about three 3 hours and I just bring that to your attention. I really don't 4 have a feel for when the final summation is going to end. 5 I also just want to bring to your attention that it 6 does take some time to provide transportation for the jurors 7 and so I would have to let various people know. But I will 8 simply, frankly, await developments. 9 MR. BARKOW: Your Honor, all I can say, it's hard, but 10 my prediction actually, given what the Court has said about how 11 long it will take, is that we would not make it to the charge 12 today if the Court is going to do it in one block. I don't 13 think that when I end -- 14 THE COURT: By one block I mean one day. 15 MR. BARKOW: Right. 16 THE COURT: The jury could go to lunch and I would 17 give them appropriate instructions and we could limit it to a 18 half an hour or so. 19 MR. BARKOW: But given lunch and I think we are 20 breaking at 4:00, I don't think that there will be enough time. 21 But that's just my prediction given what I have left. 22 THE COURT: My suggestion is that you find a 23 convenient time to call for another recess in the summation 24 within 45 minutes to an hour when we will know if it is not 25 over by then. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12182 51B5SAT2 Rebuttal Summation - Mr. Barkow 1 Okay, let's bring in the jury. 2 (Pause) 3 THE COURT: The jury is about ready to come in. I 4 ordered heartier snacks for the break this morning with the 5 possibility that they might have had to have sat longer through 6 the lunch hour. 7 (Continued on next page) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12183 51B5SAT2 Rebuttal Summation - Mr. Barkow 1 (Jury present) 2 THE COURT: Ladies and gentlemen, remember my 3 continuing instructions: Nothing the lawyers say is evidence 4 and I will instruct you on the law. 5 All right, Mr. Barkow, you may proceed. 6 MR. BARKOW: Thank you, your Honor. 7 How else do you know that the bubble and the concept 8 of the bubble and the idea that it was okay to do under the 9 SAMs what Lynne Stewart did was made up for you? 10 You know that because after she issued the withdrawal 11 of support for the cease-fire she didn't mention anything about 12 it to Mohammed Yousry. She didn't say anything to Mohammed 13 Yousry that it was okay under the SAMs to do what she did. 14 Instead she said she was risking her whole career. 15 Lynne Stewart Exhibit 701T, a call on June 16th of 16 2000, you heard this call, it was played for you and you heard 17 the glee in Lynne Stewart's voice when she was talking to 18 Mohammed Yousry about what she had done. And she says on page 19 5 to Mohammed Yousry, I'm risking my whole career to bring this 20 out. 21 She doesn't say to Mohammed Yousry, not a big deal, 22 I've got it covered, I was okay to do it under the SAMs. I 23 practice law in a bubble, or a space, or the ethical 24 considerations let me do it, or the constitution or the 25 commentary to the SAMs. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12184 51B5SAT2 Rebuttal Summation - Mr. Barkow 1 She doesn't say any of that because she made it up for 2 you. She says I was risking my whole career to bring this out. 3 She was being frank and honest then to her friend. She had no 4 idea she was being recorded as opposed to now when she needs to 5 say something to get off. 6 Why did Lynne Stewart think she was risking her whole 7 career? You know. Ahmed Sattar told you and Taha at the same 8 time on a tape, Government Exhibit 1119X, June 18th of 2000, 9 two days after the call that I just talked about when Lynne 10 Stewart tells Mohammed Yousry that she was risking her whole 11 career, page 3, Sattar says: The lawyers, before the lawyer... 12 em... before he gets the permission for the visit he signs 13 papers saying that is he not allowed to say anything or pass 14 anything, that is why I told you that this woman risked her 15 whole future. They have to sign papers. They have to sign 16 papers saying they're not allowed to pass anything. That is 17 why this woman risked her whole future. 18 How did Sattar know that Lynne Stewart thought she was 19 risking her whole future? Why did Sattar use that phrase? 20 Lynne Stewart must have told him that when she and he were 21 together just a few days earlier and she was telling Esmat 22 Salaheddin that Abdel Rahman had withdrawn his support for the 23 cease-fire. And Sattar knows the reason why Lynne Stewart was 24 risking her career too, because it was illegal, because it 25 circumvented papers, the SAMs and the affirmations, because it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12185 51B5SAT2 Rebuttal Summation - Mr. Barkow 1 violated papers, the affirmations -- the affirmation that she 2 signed. 3 And Lynne Stewart knew she was risking her whole 4 career because, as a lawyer with 30 years of experience and 5 seeing defendants charged with crimes, she knew exactly where 6 she'd end up if she got busted -- right here being judged by 7 you. 8 And Mr. Tigar and Lynne Stewart argue to you that it 9 helps her that she claims now that she thought then that the 10 worst possible consequence for her, the risk was that she would 11 be cut off from Abdel Rahman and other prisoners. She made 12 that up for you too but I'm going to suspend disbelief here for 13 a minute and I'm going to talk about it because even under what 14 they said, it shows you that Lynne Stewart knew that she did 15 something wrong. 16 And as I told you, Judge Koeltl will instruct you that 17 a defendant doesn't have to know that they're breaking any 18 particular law so long as they're aware of the generally 19 unlawful nature of their conduct. 20 So, if you think you're going to get cut off because 21 something you are doing with Omar Abdel Rahman it's because you 22 think you're violating the SAMs and the affirmation. And if 23 you think you're doing something that is violating the SAMs and 24 the affirmation, then you are defrauding the United States and 25 violating your affirmations and making a false statement and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12186 51B5SAT2 Rebuttal Summation - Mr. Barkow 1 committing a crime. It is just that simple. 2 And it's not an answer to say that it's not a crime to 3 antagonize an AUSA, an assistant U.S. Attorney; that it's not a 4 crime, it's a duty to do that. This is not about the adversary 5 system. Lynne Stewart wasn't in court with Pat Fitzgerald, she 6 was committing a crime. She wasn't there to object to 7 questions or arguments being made by another lawyer, she was 8 relaying messages from terrorists to terrorists to recommence 9 violence. It's just not the same and you know it's not the 10 same. 11 This is not about Lynne Stewart versus Pat Fitzgerald, 12 it's about Lynne Stewart thinking that she is above the law 13 which takes everyone's interests and safety in mind and 14 following her principles of: His message is going to get out 15 no matter what the law says. 16 She knew it was wrong and she new it violated the SAMs 17 and she knew it was a crime and she knew she would lose if she 18 challenged it in Court so she blew off the rules because she 19 disagreed with them. She knew it was unlawful and that she 20 would risk her whole career but she was going to get his 21 message out no matter what. 22 There is no evidence that Lynne Stewart ever mentioned 23 the bubble under any name to any of these people in any of 24 these contexts that I have just talked about. She never said 25 to any of them it was okay to do what I did, it was okay under SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12187 51B5SAT2 Rebuttal Summation - Mr. Barkow 1 the ethical considerations, it was okay. 2 Because it wasn't and she knew it. And she knew it at 3 the time and she knew it at the time she signed her 4 affirmation. She knew she wasn't going to abide by that 5 affirmation but she did it because she was going to get the 6 message out no matter what she said in her affirmation and no 7 matter what the law said. 8 She had disagreed with the law, she knew she was 9 breaking the law, she thought she was above the law. She 10 didn't act in good faith. 11 How else do you know that Lynne Stewart is making this 12 up just for you? Mr. Stern and Mr. Tigar accused the 13 government at various points of trying to have things both 14 ways. 15 You know, there is no bubble or concept of a bubble 16 because Lynne Stewart tries to have it both ways herself 17 because she doesn't even believe in her lie enough now to stick 18 by it. What do I mean by that? Well, she conceded when she 19 was on the stand that what she did was in violation of the 20 plain text of the SAMs but this was in a bubble. But then she 21 also tried to sell you a story that it really didn't violate 22 the plain text because what she did wasn't a message because it 23 wasn't secret. 24 Talking to the media is never secret so that makes no 25 sense. It bans communications with the media. It's never a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12188 51B5SAT2 Rebuttal Summation - Mr. Barkow 1 secret so that is just absurd. So, what does this tell that 2 you she tries to have this both ways? She will tell you 3 anything to try to get off. 4 She reads the SAMs and the affirmations however it 5 suits her at any given point. Sometimes what matters is the 6 letter and sometimes what matters is the bubble. 7 How else do you know that there is no bubble and she 8 didn't think it was okay to do under the SAMs what she did? 9 "I'm just doing covering noises." This the last page of 10 Government Exhibit 2634. Lynne Stewart didn't have to testify 11 but she did, and when she was sitting up on the stand she 12 didn't say a single word about this page because there is 13 nothing that can be said. 14 I talked about the covering noises that Lynne Stewart 15 made at length yesterday with respect to Mohammed Yousry. And 16 I'm not going to repeat them now but I just want you to 17 remember them for the better, "I'm just doing covering noises." 18 That's what she said in July of 2001. I can win an academy 19 award. That's what she said that May of 2000 because she has 20 to make something up because she was caught unknowingly and 21 unsuspectingly on tape. 22 Protecting legal strategies, trying to avoid 23 interruption? No. She only did the covering noises, as I 24 proved to you yesterday was true, only when they talked about 25 terrorism, terrorists and violence. And she got caught and she SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12189 51B5SAT2 Rebuttal Summation - Mr. Barkow 1 is trying to lie her way out of it. 2 Let me talk about the part of the bubble called Ramsey 3 Clark and Ramsey Clark's refusal to issue Abdel Rahman's 4 withdrawal of support for the cease-fire in September 1999. 5 Lynne Stewart wants you to believe that she was guided 6 by and worked with Ramsey Clark and that made her think somehow 7 that it was okay to do under the SAMs what she did. It was 8 okay to commit her crimes. Well, she is making this up too. 9 She says now it's all about Ramsey, but that's a lie. 10 Remember? She got a letter from Pat Fitzgerald saying that she 11 violated the SAMs and she broke the law and that she risked 12 death. Well, what did she say then about Ramsey Clark to her 13 friend Mohammed Yousry with no incentive to lie like she has 14 now? 15 (Recording played) 16 MR. BARKOW: Government Exhibit 1275X, August 28th of 17 2000. Oh, no, no, no, no, no, no. Ramsey I'm not interested 18 in at all. I don't care what Ramsey has to say. 19 Mohammed Yousry asks her, page 3, I think you should 20 keep it between you and Ramsey until we decide what to do about 21 getting this accusatory letter from Pat Fitzgerald. No, no, 22 no. I don't care what Ramsey has to say. 23 And then after that, page 3 she says, my basic 24 position is I want to meet with you and Sattar. 25 I don't care what Ramsey has to say, I want to meet SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12190 51B5SAT2 Rebuttal Summation - Mr. Barkow 1 with my co-defendants and co-conspirators. 2 Well, here they are, together again. And it doesn't 3 matter what Lynne Stewart says to you now about her supposed 4 good faith reliance on Ramsey Clark because back then she 5 didn't care what Ramsey has to say and to say differently now 6 is a lie. 7 What else about Ramsey Clark? Before I go any further 8 about Ramsey Clark let me ask you to listen for one of Judge 9 Koeltl's instructions because it will tell you what you are not 10 supposed to think about with respect to Ramsey Clark or anyone 11 else not on trial for that matter. 12 Judge Koeltl will instruct you that you can't draw any 13 inference from the fact that certain people were not named as 14 defendants. You are not supposed to speculate why someone is 15 or isn't on trial and you can't consider whether someone should 16 or shouldn't have been charged in any way as you reach your 17 verdict. Please listen for that instruction. 18 But let's talk about what the evidence shows about 19 Ramsey Clark and what he did and what he didn't do and what he 20 refused to do. 21 You know that Ramsey Clark operated in 1997 when he 22 issued Abdel Rahman's blessing of the cease-fire under 23 different SAMs that Lynne Stewart operated under when she 24 issued Abdel Rahman's blessing of violence. 25 You know that Lynne Stewart or that Ramsey Clark was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12191 51B5SAT2 Rebuttal Summation - Mr. Barkow 1 subject to SAMs that didn't bar press releases, Government 2 Exhibit 375. They just don't. 3 And whatever Pat Fitzgerald might have said about it 4 on the stand without having the document in front of him as 5 Mr. Tigar was referring to, he's mistaken. Look at them 6 yourself. They don't bar press releases. 7 And Lynne Stewart knew, most importantly, that Ramsey 8 Clark was subject to different SAMs in 1997 than she was in May 9 and June of 2000, so she can't say now that she relied in good 10 faith on Ramsey Clark's conduct back in 1997 because she knew 11 the SAMs were different. 12 She testified, transcript page 8144, that she knew 13 that the bar on relaying statements from Abdel Rahman to the 14 media was inserted in the SAMs after Ramsey Clark made his 15 statement in 1997. So she knew the SAMs were changed to 16 prohibit statements to the media; transcript 8144. So, Lynne 17 Stewart knew that that rule wasn't in place when Ramsey Clark 18 did what he did. 19 What else do you know about Ramsey Clark? What did he 20 actually say when he was subject to these different SAMs? He 21 said, quote, I give my blessing for the initiative to stop the 22 violence and I ask others to support it. That's what he said 23 Abdel Rahman had said. 24 Well, the purpose of the SAMs is to stop violence. It 25 says that in the regulation, Government Exhibit 2635, that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12192 51B5SAT2 Rebuttal Summation - Mr. Barkow 1 Lynne Stewart claims to rely upon now. 2 Ramsey Clark's statement in favor of the cease-fire is 3 just not the same as Lynne Stewart's statement withdrawing 4 Abdel Rahman's support for the cease-fire, so Lynne Stewart 5 could not possibly have relied in good faith on what Ramsey 6 Clark did under different SAMs that she knew had been changed 7 after what he had done when he made a statement that was 8 pro-peace and she made a statement that was pro-violence. 9 That's not possible. 10 What else do you know about Ramsey Clark? You know 11 that Ramsey Clark refused to issue Abdel Rahman's withdrawal of 12 support for the cease-fire in September of 1999. You know that 13 when he was presented with the option and opportunity to do it 14 himself, he said no. He said no because it was illegal. 15 Now, Mr. Tigar spent a long time trying to tell you 16 that Mohammed Yousry's notebooks somehow proved something about 17 Ramsey Clark's refusal to relay Abdel Rahman's withdrawal of 18 support in September 1999. Remember the whole argument he made 19 about absolved versus disappointed? This was a day or two ago, 20 it may have been Thursday. 21 But the fact is and the evidence shows that Abdel 22 Rahman's statement that Ramsey Clark refused to relay, unlike 23 Lynne Stewart said, that the Islamic Group was absolved and 24 released from the cease-fire. Abdel Rahman said the Islamic 25 Group did not have to follow the cease-fire anymore. He said SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12193 51B5SAT2 Rebuttal Summation - Mr. Barkow 1 it in September 1999 and Ramsey Clark refused to relay that 2 statement. 3 And, Mr. Tigar tried to create the impression for you 4 that all Abdel Rahman said back then was that -- all Ramsey 5 Clark -- I'm sorry, all that Abdel Rahman said back then was 6 that he was disappointed with the cease-fire. That's what 7 Mr. Tigar argued to you is all Abdel Rahman said, he was just 8 disappointed. 9 But the evidence is clear that Abdel Rahman said the 10 Islamic Group was absolved and released from the cease-fire and 11 that Ramsey Clark refused to issue this blessing of violence 12 unlike Lynne Stewart who willingly unleashed it into the world. 13 Now, how do you know what Abdel Rahman really said and 14 what Ramsey Clark refused to relay? Well, Mr. Tigar said at 15 one point that he doesn't show transcripts on the screen 16 because he will just argue to you the old fashioned way. But, 17 if you actually look at all the evidence on this issue as 18 opposed to just talking about it, it is clear that Mr. Tigar is 19 wrong and that Abdel Rahman said that the Islamic Group is 20 absolved and released from the cease-fire and Ramsey Clark 21 wouldn't issue it. 22 You just have to roll up your sleeves for a minute and 23 look at it so I'm going to go through it with you. I'm going 24 to walk through and give you some of the exhibits numbers and 25 you can recreate it later if you want because it shows what SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12194 51B5SAT2 Rebuttal Summation - Mr. Barkow 1 Mr. Tigar argued to you is flat out wrong. 2 September 18, 1999, Mohammed Yousry and Ramsey Clark 3 go visit Abdel Rahman. Then, on September 19th of 1999, 2:00 4 p.m., Government Exhibit 1028X, page 3, Mohammed Yousry calls 5 Sattar after Yousry arrives home from the prison visit and 6 Sattar says to him, I was worried that Ramsey Clark wasn't 7 going to be able to discuss everything with Abdel Rahman. And 8 Yousry says, quote, no, no, no. Ramsey discussed everything 9 with him. 10 They're talking about the cease-fire. And then the 11 next morning on September 20th of '99 at 7:00 in the morning, 12 Government Exhibit 1029X, Taha calls Sattar, pages 2 to 3. 13 Sattar tells Taha that Abdel Rahman made a statement and that 14 Clark is going to issue it today and the statement Sattar tells 15 Taha is about, quote, his feeling about the general situation 16 as a whole and about his feelings of strong disappointment 17 about the situation and the necessity to review the situation 18 in its entirety and that we, I mean the Islamic Group, is 19 absolved of anything. 20 And then at page 4, Taha tells Sattar to write down 21 what Abdel Rahman said and send it to Taha. 22 And Sattar tells Taha that he is going to meet with 23 Clark later that day. That's page 4. 24 Pages 6 and 7, this is what Abdel Rahman said and what 25 Sattar read to Taha on the phone. Now it's kind of long so I'm SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12195 51B5SAT2 Rebuttal Summation - Mr. Barkow 1 going to read you parts. If you want to look at the whole 2 thing later it is on pages 6 and 7. 3 Permission is given to fight because they are wronged. 4 I therefore demand that my brothers, the sons of the Islamic 5 Group, do a comprehensive review of the initiative and its 6 results. I also demand that they consider themselves absolved 7 from it. 8 So, then Sattar gets off the phone, he goes to his 9 computer, and by 12:55 p.m. he's finished typing Abdel Rahman's 10 statement which he got from Mohammed Yousry, who was at the 11 prison visit, which he got from him in handwriting and which he 12 just read to Taha. 13 The statement, Government Exhibit 2204, was found on 14 Sattar's computer. And you know the time that Sattar finished 15 typing it, 12:55 p.m., because the last modified date on the 16 computer is on Government Exhibit 2204-AL. 17 Now, Government Exhibit 2204-AT is the translation of 18 the statement that Sattar typed. And that document, 2204-AT 19 matches what Sattar told Taha on the phone in Exhibit 1029X 20 virtually line by line. 21 Government Exhibit 2204-AT, this is what Abdel Rahman 22 said and Sattar typed: Permission to take up arms is hereby 23 given to those who are attacked because they have been wronged. 24 And then he goes on: Therefore, and from the 25 perspective of being an Islamic scholar my duty obligates me to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12196 51B5SAT2 Rebuttal Summation - Mr. Barkow 1 confer advice on my children and brothers in the Islamic Group, 2 that they conduct an inclusive evaluation and complete 3 assessment of this initiative and its result. Also, I advise 4 them that they should consider themselves released from it. 5 It matches what I just read to you from 1029X. 6 And then, that afternoon, Sattar meets with Clark and 7 he reads Ramsey Clark this statement, Government Exhibit 2204, 8 because later that night, September 20th, 1999, at 10:15 p.m., 9 Government Exhibit 1030X, Sattar calls Yousry and on page 1 he 10 tells Yousry that he met with Ramsey Clark and that Ramsey 11 Clark won't issue the statement because, he says, he probably 12 figured it out from its legal angle. And Yousry tells Sattar, 13 but Abdel Rahman wanted the statement released. 14 And so, on page 3 Yousry says that he'll talk to Abdel 15 Rahman about it next week and, quote, solve the problem by 16 telling Ramsey Clark to ask the Sheikh, and Abdel Rahman will 17 tell Ramsey Clark that Abdel Rahman wants to issue the 18 statement. 19 Then, the next day, September 21st, '99, Sattar writes 20 a letter to Taha. It's to Taha, not to Muntasir Al-Zayat, as 21 Mr. Tigar argued to you, and this is Government Exhibit 22 2312-40T. 2312-40T. And that letter is dated September 21st 23 of 1999, it's on the very bottom of the letter. 24 In the letter Sattar tells Taha what happened. In the 25 letter he tells Taha that he had met with Ramsey Clark. I met SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12197 51B5SAT2 Rebuttal Summation - Mr. Barkow 1 with the male lawyer today. 2 And you know it's a letter to Taha and not to 3 Al-Zayat, as Mr. Tigar argued, because in it Sattar refers back 4 to a conversation he had in the morning that morning with Taha 5 during which he told Taha that Sattar thought that Ramsey Clark 6 was going to issue the statement that the Islamic Group is 7 absolved and released from the cease-fire. 8 But, Sattar tells Taha in the letter that Ramsey Clark 9 isn't going to issue the statement, he won't issue the 10 statement because of the, quote, negative legal consequences -- 11 I'm sorry, because of the negative legal consequences. It can 12 cause a negative reaction, particularly from the legal side 13 here. 14 But, after the meeting and in light of the discussion 15 of the issue from all sides calculating the pros and cons here 16 at least, we elected not to issue the statement. It can cause 17 a negative reaction, particularly from the legal side here, so 18 we decided not to do it. 19 Ramsey Clark decided not to issue the statement 20 because of negative legal consequences. 21 So, the evidence proves that what happened here was 22 that Sattar read Government Exhibit 2204, Abdel Rahman's 23 statement calling for the end of the cease-fire which he just 24 typed before meeting Clark that afternoon and finished at 12:55 25 p.m. He read it to Clark and Sattar and Clark discussed it and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12198 51B5SAT2 Rebuttal Summation - Mr. Barkow 1 Ramsey Clark refused to issue it. 2 And then Sattar gives his letter to Taha, Exhibit 3 2312-40T, to Mohammed Yousry; and you know that because 4 2312-40T is found in Mohammed Yousry's office in a search -- in 5 the search. 6 And Mohammed Yousry then asked Ramsey Clark to approve 7 reading this statement to Abdel Rahman. And you know that 8 because Ramsey Clark approves 2312-40, the translation 40T, to 9 be read to Abdel Rahman because at the top it says that it was 10 approved by Ramsey Clark. And again, this is found in Mohammed 11 Yousry's office. 12 Why would Ramsey Clark approve it if it didn't 13 accurately say what happened? He wouldn't. So you know that 14 Ramsey Clark approved it because it accurately says what 15 happened and what Ramsey Clark himself did. 16 And what does it say happened and that Ramsey Clark 17 did? 2312-40T says that what happened is that Abdel Rahman 18 said that the Islamic Group is absolved from the cease-fire and 19 that Ramsey Clark refused to issue Abdel Rahman's statement 20 because it would have negative legal repercussions. 21 Ramsey Clark refused to issue Abdel Rahman's 22 withdrawal of support for the cease-fire in September 1999 23 because of the negative legal repercussions because it violated 24 the SAMs. 25 And, since 2312-40T was read to Abdel Rahman, Abdel SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12199 51B5SAT2 Rebuttal Summation - Mr. Barkow 1 Rahman knows that Ramsey Clark wouldn't issue his withdrawal of 2 support for the cease-fire. 3 (Continued on next page) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12200 51BMSAT3 Rebuttal 1 MR. BARKOW: Why wouldn't Ramsey Clark do it? Why 2 wouldn't he issue Abdel Rahman's withdrawal of support for the 3 ceasefire, Exhibit 2204, that Sattar showed to Ramsey Clark? 4 Because it was, as the title states, permission to take up arms 5 from the spiritual leader of the Islamic Group. And that is 6 why Ramsey Clark didn't issue it. 7 And because Ramsey Clark refused to issue Abdel 8 Rahman's withdrawal of support for the ceasefire, on February 9 18 of 2000, the first day of the very next prison visit, Abdel 10 Rahman wants Abdeen Jabara to issue a press release. He wants 11 him to issue the withdrawal of support for the ceasefire. But 12 Mohammed Yousry told you that on that day of the prison visit, 13 Abdeen Jabara said no, no press release. 14 On February 19, the next day of the visit, Abdel 15 Rahman wants to dictate a letter to al-Gama'a al-Islamiya and I 16 showed you that before when I was arguing about Mohammed 17 Yousry, Abdeen Jabara says no. Abdel Rahman wants to do this 18 because Ramsey Clark wouldn't do it back in September 1999. 19 Abdel Rahman wants his withdrawal of the ceasefire out there. 20 He wants it out. He wants it to get out to the world. Ramsey 21 Clark wouldn't do it and, as you know now, Abdeen Jabara 22 wouldn't do it either. So Abdel Rahman has to wait until Lynne 23 Stewart shows up in May of 2000. 24 What does all this show you? It shows you several 25 things. It shows you that Mr. Tigar is wrong when he says that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12201 51BMSAT3 Rebuttal 1 Abdel Rahman only said that he was disappointed in the 2 ceasefire because Abdel Rahman said, absolved and released, the 3 Islamic Group is absolved and released from the ceasefire. 4 Abdel Rahman had withdrawn his support for the ceasefire in 5 September of 1999. He couldn't get his message out to the 6 world. It shows you that Abdel Rahman had joined the 7 conspiracy to kill, at least has the state of mind to do it in 8 September of 1999. And it reminds you that Sattar is a member 9 of the conspiracy to kill in September of 1999. And it proves 10 to you what Ramsey Clark refused to issue Abdel Rahman's pro 11 violence statement, a withdrawal of support, an absolution from 12 the ceasefire. And it proves to you why Ramsey Clark refused 13 to issue it, because of the negative legal reaction, because 14 Ramsey Clark knew that it violated the law. And it reminds you 15 that Abdeen Jabara wouldn't do it either in February 2000, when 16 Abdel Rahman asked him to. Abdel Rahman had to wait until 17 Lynne Stewart, his sure thing, arrived in May of 2000 to do 18 what neither of her two cocounsel, Ramsey Clark or Abdeen 19 Jabara, would do. 20 I want to make a quick point about Mohammed Yousry's 21 notebooks. Mr. Tigar was keen to relying on Mohammed Yousry's 22 notebook to say that because Mohammed Yousry's notebooks don't 23 include the words absolved he must be right about this 24 argument. Since when were Mohammed Yousry's notebooks the 25 verbatim measure of everything that was said and everything SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12202 51BMSAT3 Rebuttal 1 that happened? You know that the May 2000 prison visit lasted 2 two full days. It took a week to read it and play it to you in 3 this courtroom. And the complete total of handwritten pages in 4 Mohammed Yousry's notebook about that May 2000 visit, one page. 5 You know he was there. You know that it lasted two days. You 6 know that a lot more than one page was said. It just doesn't 7 capture everything that was said. 8 And you also know that in May of 2000, Abdel Rahman's 9 response to Sattar's and Taha's request for Abdel Rahman to 10 withdraw his support for the ceasefire, you know about that. 11 You know that Abdel Rahman responded and you know that he 12 answered that request in a letter because you saw it and you 13 heard it on the transcript, and we read it to you in the 14 transcript. 15 Is that anywhere in Mohammed Yousry's notebooks? No. 16 One of the single most powerful pieces of evidence in the whole 17 case and Mohammed Yousry didn't write in his notebooks. He 18 told you he put it on a separate piece of paper. But you know 19 it happened because he told you it happened and because you saw 20 it and you heard it. 21 What about the March 1999 responses to Sattar's letter 22 regarding the ceasefire? Those aren't in Mohammed Yousry's 23 notebooks here. It is no surprise that the word absolved does 24 not appear in Mohammed Yousry's notebooks either. None of 25 Abdel Rahman's statements withdrawing support and supporting SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12203 51BMSAT3 Rebuttal 1 violence with respect to the ceasefire appear in Mohammed 2 Yousry's notebooks because Mohammed Yousry is too smart to 3 write something that incriminating in his permanent record. 4 And the fact that absolved, that word doesn't appear means 5 nothing. Mohammed Yousry has more than just a pen and 6 notebook. He has his ears and he has his brain and he and 7 Lynne Stewart bring out the bad stuff with the withdrawal of 8 the support of the ceasefire in their heads, not in his 9 notebook. 10 So in his third or fourth alternative theory on this 11 devastating evidence Mr. Tigar asks, why didn't the government 12 ask Ramsey Clark why he didn't release the withdrawal of 13 support for the ceasefire? Now, do you think maybe it is 14 because the evidence the government had introduced and I just 15 went through, those calls, those documents, all recorded and 16 written at the time make it abundantly clear that Ramsey Clark 17 did not relay that message because it was a call to arms, 18 permission to take up arms is hereby given and, therefore, it 19 was illegal? 20 Do you think maybe because Mr. Tigar's argument or 21 theory just wouldn't occur to anyone who is actually looking at 22 the evidence in the case because his theory is flatly 23 contradicted by the evidence in the case? You know, it is 24 Mr. Tigar's hypothesis and theory and speculation and its 25 evidence doesn't support it. And he didn't have to ask Ramsey SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300