Scott Fenstermaker is the lawyer for several Guantanamo Bay detainees, including Ammar al-Baluchi, who will stand trial in New York for the 9/11 attacks. Mr. Fenstermaker has appeared on several talk shows and made numerous press statements in defense of the detainees’ rights. He is outspoken in his criticism of US legal policy in regards to the “War on Terror”.
On November 26th, I spoke with Scott Fenstermaker by phone. Although I managed to write down a few quotes while speaking with him, our first conversation could hardly be called an interview. We have decided to continue our discourse through a series of e-mails.
TP: When we talked, we did not discuss Mr. Ali’s desire to be martyred, or how he wanted to use the trial as a forum to ridicule US foreign policy. We talked about how the defendants were being corralled and controlled by all the players in their legal process. Do the defendants want to represent themselves in court to denigrate the United States and be martyred, or is this their only chance to defend themselves?
SF: The defendants want to represent themselves because their experience at Guantanamo Bay has taught them to not trust government-appointed counsel, and for good reason.
TP: Why do the detainees not trust their appointed counsel?
SF: Because their appointed counsel, both military and civilian, have been actively involved in violating the detainees’ rights and have been, in essence, holding them hostage from counsel independent of government influence. The reason that appointed counsel have been doing this is still far from clear, but what is clear is that the government will never allow any detainee who was formerly held in the secret CIA prison system to select his own counsel in a criminal proceeding, either in federal court, or before the military commissions.
TP: When we spoke by phone you said that; “The government goes crazy every time the detainees want me to represent them”. If it is clear that the government will not allow the detainees to choose their own counsel, can you tell us by what means the government does this? And what has the government done to prevent you from representing Mr. Ali or any other detainee?
SF: The government blocks legal mail to all of the detainees, including Mr. al-Baluchi, who you refer to as Mr. Ali. I am able to send some legal mail to Mr. al-Baluchi, but as the mail is screened, the government refuses to deliver the mail that it does not want him to receive. I am unable to send any mail to any of my other clients.
When Ahmed Khalfan Ghailani was moved to New York in June of 2009, I was not permitted to meet with him, except for a few brief moments before his two court appearances. I was blocked from seeing him in jail, notwithstanding the fact that I was his attorney of record in his federal criminal case from June 9, 2009 until June 16, 2009. In addition, once he was in New York, I sent him four letters during the time that I was his counsel of record. Each of those four letters was rejected and returned to me without delivery to Mr. Ghailani. He has never received them and may not even know they were sent.
My mail to my two other clients, Rahim al-Nashiri and Mustafa Bin-Ahmad al-Hawsawi, has been blocked since July 1, 2008. Mr. al-Hawsawi has attempted to send me a habeas counsel authorization form which authorizes me to represent him in a petition for a writ of habeas corpus. The government rejected that form and is holding it in a secure facility in Virginia. Because of the rules under which I am operating, even if I were to go to the secure facility, I could not remove the form from the safe and use it in court.
Mr. al-Nashiri fired all of his attorneys and wants to hire me to represent him before his military commission, for which he faces the death penalty for allegedly masterminding the bombing of the USS Cole. I filed a motion seeking to substitute as counsel in his habeas case in Washington. That motion, which was filed with the Court’s security personnel in July of 2009, has never been reviewed by the government for security classification. As a result, it will never be submitted to the Court for decision. The government has, essentially, denied my motion by never permitting the Court to get it for the purpose of ruling on it.
Each time I have been retained by one of the detainees, the government has refused to allow me to meet with them, has assigned military counsel to meet with the detainee against my wishes, and the appointed military counsel has sought to secure my removal as the detainees’ attorney by attempting to poison my relationship with the detainee. If the military attorneys fail in their efforts to poison the relationship, which has happened on each occasion, the government then simply cuts me off from the detainee, as described above. Mr. al-Nashiri’s military attorney, Lt. Cmdr. Steven Reyes, is essentially holding Mr. al-Nashiri hostage from his chosen counsel.
The government has also secured the assistance of lawyers from the American Civil Liberties Union (“ACLU”) and the National Association of Criminal Defense Lawyers (“NACDL”). The ACLU and NACDL’s joint effort was known as “The John Adams Project”, (the “Project”). Project attorneys used donated funds to pay attorneys to litigate against me to seek my removal from Messrs. al-Nashiri’s and al-Hawsawi’s cases, and may have done the same on other cases as well, although I only have proof of this conduct in Messrs. al-Nashiri’s and al-Hawsawi’s cases.
When I file court petitions on behalf of my various clients, the government will oppose my involvement, claiming that the detainees do not want me as their lawyer. At the same time, the government refuses to deliver my mail to my clients, thereby precluding me from being able to secure further written authorization from the clients. When I ask the Court for a hearing to determine the detainees’ wishes for counsel, the government opposes the application, claiming that the detainees cannot testify, because doing so would jeopardize national security.
These are but a few of the many examples of how the government has interfered with my relationship with my clients.
TP: I was aware that Mr. al-Baluchi, who I know as Mr. Ali, was your client, but I did not know you had done so much legal work for all these detainees. How did you become involved as an attorney for these detainees, and why are you doing this?
You mention Mr. al-Nashiri, and the fact that he will face a military tribunal, not a trial by jury. Attorney General Eric holder has stated that since the USS Cole was a military vessel, a military court should decide his case. Yet this makes no sense because the alleged 9/11 hijackers flew planes into the Pentagon, US military headquarters.
Is there another reason behind the government’s choice to try some detainees in civilian courts, and others before the military? In other words, why are five detainees allowed a trial in New York, while five other detainees are quietly sent before military tribunals?
SF: I sued President Bush, Secretary Rumsfeld, and a third person, who ran the military commissions at the time, in August of 2005 on behalf of some of the detainees. I amended the lawsuit in September of 2006, when President Bush announced that Messrs Ghailani, al-Nashiri, al-Hawsawi, al-Baluchi and 10 others were being transferred from the secret CIA prison system to Guantanamo Bay. The amendment added claims on behalf of the 14 former CIA prisoners, including the four mentioned above and one mentioned below. The detainees learned about my efforts, wrote to me seeking advice and help, and I established a correspondence with some of them.
Five detainees asked me to represent them, the four mentioned above, and a gentleman named Abu Faraj al-Libi. As Mr. al-Libi was allegedly the third ranking member of al Qaeda when he was captured, I surmised that there would be conflict of interest in representing him. I turned down his request, but tried to help him secure an attorney, with no success.
I am doing this because our terror detention policy is extremely problematic. I am a graduate of the United States Air Force Academy and the military’s survival, evasion, resistance, and escape (SERE) training programs. The way we have treated the terror detainees is arguably in violation of the law, is clearly immoral, and will have severe consequences for our men and women in uniform, should they ever be captured by enemy forces. I can’t emphasize enough just how detrimental our terror detention policies will be to our own interests. I sought to help these men to provide some admittedly small effort to counteract our government’s illegal and ill-advised policies.
The decision to try some terror detainees in civilian court and some in military tribunals was driven largely by the government’s efforts to maximize its propaganda benefit from these trials. Certainly, the 9/11 trial will be a huge propaganda show, allowing the government to continue to scare us into further acquiescing in the government’s questionable anti-terror policies, including the wars in Iraq, Afghanistan, and Pakistan, as well as the government’s attack on our civil liberties right here at home.
The detainees now facing trial by military commission face much less spectacular allegations, Mr. al-Nashiri notwithstanding. As a result, those detainees, if tried in civilian courts, would not provide the propaganda benefit the government seeks by resorting to the civilian court system. Furthermore, Mr. al-Nashiri’s case is problematic because he was arguably the worst treated of all the detainees in the CIA prison system.
To be continued …