Terrorism: “you know it when you see it”
Posted on July 30, 2003
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NY Times: Defending Those Who Defend Terrorists
John G. Koeltl, a federal judge in New York, was struggling to understand the theory under which the government was prosecuting a lawyer for supporting terrorism.
Where, he asked at a hearing in June, is the line between constitutionally protected political activity and criminal conduct?
“You know it when you see it, your honor,” the prosecutor, Christopher J. Morvillo, replied.
Now, IANAL but as far as legal arguments go that’s pretty damned weak. Hard to believe one can actually get through law school and still think “just because” is a valid answer. Result: all charges thrown out against attorney Lynne Stewart, charged with providing “material support” to terrorists under anti-terrorism bill Pub. L.104-132.
The crux of the government’s argument was that Ms Stewart’s redirection of messages from her client constituted “material support” in that her actions violated the prohibition of providing “communications equipment” to terrorists. Her crime: using her phone and fax machine.
Judge Koeltl held that the law was so vague that Ms. Stewart could not have known what was prohibited, a decision Professor Margulies called “unduly formalistic.” Judge Koeltl, he said, should have allowed prosecution only when the people charged knew their support would aid terrorist activities.
Eric M. Freedman, a law professor at Hofstra University, disagreed. “The government’s position that one can be locked up for decades for expressions of political positions on the telephone,” he said, “amounts to simple thought control.”
Either way, the decision is a milestone. “It’s the first decision throwing out a criminal indictment,” Professor Cole said, “and it’s the first case after 9/11 to criticize it.”
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