This is second in a series of interviews with Scott Fenstermaker. He is the lawyer for Ammar al-Baluchi, one of the detainees accused of taking part in the the September 11th attacks. In our previous exchange Mr. Fenstermaker revealed a pattern of government obstruction that prevented him from contacting the detainees, or representing them in legal proceedings.
His persistence in securing the legal rights of detainees led to his suspension, and even drove him to sue several members of the Bush administration, including the President.
TP: Kudos for suing President Bush, although I don’t think his administration was the problem, since we are now in the Obama administration and nothing has changed.
The one detainee you have not mentioned is the “self-cast star” of this show, Khalid Sheikh Mohammed. He claims to be the mastermind of 9/11, and the CIA claims he was waterboarded 183 times.
He has not only confessed to orchestrating the September 11th attacks, but to the 1993 World Trade Center Bombing, the nightclub bombing in Indonesia, plots to blow up oil tankers in the Persian Gulf and bridges in New York City, plans to assassinate Presidents Jimmy Carter and Bill Clinton, Pakistani President Pervez Musharraf, and the Pope.
He has also confessed to the beheading of Daniel Pearl. This last confession is problematic for the prosecution, because Ahmed Omar Saeed Sheikh has already been convicted for beheading Daniel Pearl, and is in a Pakistani prison. Mr. Saeed Sheikh is also the man who wired lead hijacker Mohammed Atta $100,000, on orders from the head of Pakistan’s ISI, General Mahmud Ahmed.
The trial would get interesting very quickly if the defense managed to depose Mr. Saeed Sheikh.
What do you know of Khalid Sheikh Mohammed’s case, and what do you think of his chances in court? Also, what do you think of CIA torture techniques such as waterboarding, and how will they affect the trial?
SF: Thank you. I agree that the administrations are not the problem. The democratically elected officials in our country have, to a certain extent, lost control of the government, which is largely run by the bureaucracy.
I don’t know anything more about Mr. Mohammed’s case than I do about my client’s, who happens to be his nephew. I have never been involved in the substance of the allegations against any of my clients. The government has always had me tied up in fighting for the ability to actually represent them. Furthermore, I do not represent Mr. Mohammed, but it is easy to see as an observer that the government has invested a lot of capital in the process of demonizing him, which is a favorite trick of prosecutors in all criminal cases, even those far more mundane than the 9/11 case. The picture taken of Mr. Mohammed when he was apprehended has gone a long way to facilitating the government’s propaganda war against him.
As far as his chances in court, I think it unlikely that any of the five defendants stands much of a chance of being acquitted. The reaction I have experienced to my involvement has led me to believe that the American public has little patience for niceties like due process and the rule of law. This case will be used by the government, likely with some success, to generate further fear in the public and to further marginalize Islam and its followers. Our government wants to set Islam up as the enemy communism used to be in order to justify the never-ending war in which we are currently engaged.
The defendants are, therefore, nothing more than an afterthought at this stage. They are props in the government’s tragedy and will be used according to script to paint a picture of threat, aggression, and extremism where the truth may be far from the government’s desired perception. The government’s efforts are helpful to the government, but of potentially great harm to the Republic. We as a nation clearly cannot financially afford the war on terror and our reluctance to reinstate the draft demonstrates quite clearly the public’s real thought about the war(s).
The CIA’s (and other organizations’) torture techniques are what they are. The United States government has become, or perhaps has always been, the enemy against which we were trained to fight when I was at the Air Force Academy. We were taught that only terrible regimes in third-world countries run by dictators use these techniques (along with maybe the Soviet Union). I guess that is no longer true, if it ever was. Some people like to characterize these tools as pragmatic instruments of self-defense.
They are, however, very susceptible to misuse and abuse and have proven to be a public relations nightmare for our country. The detainees may try and make an issue out of them at the trial, but I suspect that the government will not seek to use any statements made by the defendants that may have been secured by mistreatment. If that is the case, the judge may very well disallow mention of them, except perhaps at sentencing.
TP: In my opinion, there are three reasons why the Obama administration has the nerve to put these men on trial: The detainees will be representing themselves; They have confessed to the crimes; And they are, (or were), expected to plead guilty to the charges against them.
Zacarias Moussaoui is the only other defendant to stand trial for a role in the September 11th attacks. Mr. Moussaoui not only tried to represent himself during the trial, he also confessed and pleaded guilty to the charges. Here are some of the pleas he entered in court, quoted from Wikipedia:
“In the Name of Allah; Censured by the United Sodom of America 4/19/2003; Case No. 01455A; 17 S 1423 Slave of Allah, Zacharias Moussaoui vs. Slave of Satan, John Ashcroft.”
“In the Name of Allah; Censured by the United Satan of America; Slave of Allah, Zacharias Moussaoui vs. Slave of Satan, Bush and Ashcroft.”
“To be seen in all God Fearing World Theatre Cinema. Deadline for 3000+ hotseat tickets (please contact United Booking Limited).”
According to Wikipedia; “No evidence directly linking Moussaoui to the 9/11 attacks has yet been released.” Moussaoui was convicted of conspiring to hijack planes and crash them into the World Trade Center and the Pentagon, even though he was in jail in Minnesota on 9/11.
I think the Obama administration expects these trials to be a replay of Zacharais Moussaoui’s, and that is why they are so confident. Khalid Sheikh Mohammed certainly appears eccentric, and relishing his role as a dangerous Islamic fanatic. Mr. Mohammed has confessed to being the mastermind of the attacks and he has stated that he wishes “to be a martyr for a long time”.
On December 8, 2008, he and the other four defendants told the judge that they wished to confess and plead guilty to all charges. When the trials of Khalid Sheikh Mohammed and his four co-conspirators were announced, they were expected to plead guilty. However, since returning from Guantanamo Bay you have stated that the detainees will plead not guilty.
Why do you think the detainees are going to plead not guilty? Were they planning to plead guilty, then changed their minds, or their legal strategy? What is the reason for their switching pleas?
SF: Before I answer your question regarding the 9/11 defendants’ attempt(s) to plead guilty, I must explain some background of which you are almost certainly unaware. You assert that the defendants attempted to plead guilty on December 8, 2008. That may, or may not, be true. However, if it is true, it is not the first time they attempted to enter a guilty plea. Allow me to explain.
On October 22, 2008, Ahmed Khalfan Ghailani was first brought before his military commission for his arraignment on charges that he helped perpetrate the bombing of the United States Embassy in Dar es Salaam, Tanzania in August of 1998. At his arraignment, Mr. Ghailani informed the military judge that he wanted me as his attorney, although I am informed that he also said he was willing to work with military counsel. I learned this from his military counsel.
Upon informing the court of his desire that I represent him, Mr. Ghailani was informed by his military counsel that I had been suspended from the group of attorneys authorized to represent detainees at Guantanamo Bay before the military commissions. My suspension was effective as of August 29, 2008. I have attached a copy of my suspension letter for your review. At the time, Mr. Ghailani’s cell at the prison at which he was housed at Guantanamo Bay adjoined the cell of Ammar al-Baluchi, my client who has been in the news the past couple of weeks. While Mr. Ghailani was transferred to Guantanamo in September of 2006, Mr. al-Baluchi was the only other detainee he had seen or spoken to at Guantanamo Bay, as of October 22, 2008.
Upon returning to his cell after his arraignment, Mr. Ghailani informed Mr. al-Baluchi of my suspension from practicing before the military commissions. That same day, Mr. al-Baluchi filed a motion in his military commission (the 9/11 commission), complaining of certain treatment, and asking that I be added to his military commission defense team. At the next 9/11 military commission court proceeding, which took place on either November 3rd or November 4th of 2008, all five 9/11 defendants announced (1) that they wanted to fire both their military and civilian attorneys, and (2) that they wanted to enter guilty pleas in the 9/11 case.
I have no proof that the 9/11 defendants’ learning of my suspension was the catalyst for their firing their attorneys and attempting to enter guilty pleas. However, the timing is striking. Upon learning of my suspension, the detainees were certainly made aware that there were (and remain) serious procedural problems with the military commissions. In the military commissions, one side of the litigation (the government) can apparently suspend the other side’s (the detainees’) attorney without warning and without just, or any, cause. That circumstance can present both practical and perception problems, to say the least.
As a result of these circumstances, I am not convinced that the 9/11 defendants ever really wanted to voluntarily take guilty pleas. While the public has certainly been made aware that the 9/11 defendants attempted to take guilty pleas, the public has never been made aware of (1) my suspension, or (2) the close temporal relationship between my suspension and the 9/11 defendants’ apparent attempt to plead guilty.
When they learned of my suspension, the detainees’ suspicions regarding the bogus, sham nature of the commissions was confirmed. They realized they had little hope of a fair day in court and that the proceedings were taking place simply to add some perceived legitimacy to the government’s decision to either kill them or to hold them for the rest of their lives.
To be continued …