In a threat to freedom of the press, the government has also issued subpoenas to four reporters to testify in the trial. The prosecution plans to use their articles on Stewart’s activities as an attorney and her “world view” as evidence against her. All the news agencies involved are fighting the subpoenas. In a June 18 pretrial hearing lawyers for the reporters’ news organizations and Stewart’s defense called for U.S. District Judge John Koetl to quash the subpoenas. Koetl deferred a decision on the issue until further into the trial, which is expected to go on for months.

Federal prosecutor Christopher Morvillo told the jury in his opening statement in the trial that Stewart “used her status as a lawyer as a cloak to smuggle messages into and out of prison,” allowing her client to “incite terrorism.”

Stewart, 64, is the attorney for Sheik Omar Abdel-Rahman, who was convicted on frame-up charges of conspiracy to bomb the World Trade Center in 1993 and attack other city landmarks. In January 1996 he was sentenced to life in prison plus 65 years, and is being held at a maximum-security prison in Florence, Colorado.

Charged along with Stewart are Mohammed Yousry, an Arabic interpreter, and Ahmed Abdel Sattar, a paralegal to Abdel-Rahman.

On April 9, 2002, U.S. Attorney General John Ashcroft personally announced the charges, claiming Stewart had violated the 1996 Anti-Terrorism and Effective Death Penalty Act, passed under the administration of William Clinton.

Stewart is also being charged with violation of Special Administrative Measures (SAMs) that Washington has imposed on Abdel-Rahman in its effort to dehumanize and break the cleric. These measures include restrictions on his access to mail, telephones, and visitors, and a prohibition on his speaking to the media.

By issuing subpoenas to reporters, the government is attempting “to use the media as an instrument of prosecutorial policy,” said Michael Tigar, Stewart’s attorney.

The subpoenas were issued to Esmat Salaheddin, a Reuters news agency reporter based in Cairo, Egypt; Joseph Fried of the New York Times; George Packer, a freelance reporter who has written for the Times magazine; and Patricia Hurtado of New York Newsday.

At the pretrial hearing prosecutor Anthony Barkow said, “Salaheddin is eyewitness and earwitness to the commission of a crime,” and that Packer and Fried are “earwitnesses to very powerful, very clear evidence of Ms. Stewart’s support of terrorism and violence.” Barkow claimed that the reporters’ interviews with Stewart would prove that her stated support for revolutionary movements laid the basis for her “providing material support for terrorism.”

Newspaper articles alone cannot be used as evidence because they are regarded as hearsay. The government is trying to force the reporters to affirm the quotations in their articles in order to establish the content of Stewart’s “world view.”

George Freeman, a lawyer for the Times, said that Fried and Packer are protected by the First Amendment to the U.S. Constitution from testifying even about information that is not confidential.

David Shultz, representing three of the reporters who have been subpoenaed, told the judge that if forced to testify their neutrality as reporters would be compromised. “Sources are going to be reluctant to talk to reporters if they realize everything they say to a reporter can be compelled and used against them in a court of law,” he said. He pointed out that the article by Fried had been written in 1995, years before the crimes Stewart is charged with having committed.

Tigar told the judge that the government’s effort to establish Stewart’s “world view” were irrelevant and too broad to have any meaning in the case. He said Stewart has agreed to testify at the trial, making it unnecessary for the introduction of any other sources of evidence on her political opinions.

The judge left the subpoenas in place, and reserved the right to rule on their validity until later in the trial.

Communication between Stewart and her client, Abdel-Rahman, had been the subject of government wiretaps for more than two years. Since October 2001 the Justice Department has been allowed to conduct surveillance of people in custody with their lawyers without judicial oversight.

In the pretrial hearing the prosecutor stated that “intercepted calls are the backbone of the government case.” The testimony of the reporters is needed, he stated, because it will provide “more credible evidence” than “the thousands and thousands of hours of intercepted calls” compiled by the government of Stewart acting as a defense attorney.  
 
 
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