This is the third in a series of interviews conducted via e-mail with Scott Fenstermaker. He has represented Mr. al-Baluchi, and several other detainees in various legal matters at Guantanamo bay. His client, and four other detainees are being brought to New York to stand trial for their part in the September 11th attacks.
Although Mr. Fenstermaker will not be representing Mr. al-Baluchi during this trial, he has plenty more to say about the upcoming legal proceedings.
TP: You said that you “have never been involved in the substance of the allegations” against these men. Can you tell us what evidence the government has against these detainees? And if you have not seen any evidence the government plans to present, do you think the charges against these detainees are justified?
SF: I have never been involved in the substance of any of these cases because I have been tied up for years now simply trying to secure the government’s authorization to represent my clients, to be able to write to them, and to be able to meet with them. The government has aggressively attempted to interfere with my efforts to represent all four of my clients. I have litigated this issue at Guantanamo Bay, in Washington, DC, and in New York. The time I have spent on this litigation could have been better used to help represent the clients in their commissions’ matters, but the government will not allow that, for whatever reason.
It is possible that I may now have in my possession the discovery materials for the 9/11 case (at least the military commission case). I have not, however, had the time to review it as of yet. It is approximately 23 gigabytes of information, which I am informed is somewhere between 60,000 and 80,000 pages of materials, and I have a day job while all of this is going on.
Let me know if you have any questions about this.
TP: Yes, I certainly have more questions regarding the evidence the government has, or will present regarding the 9/11 trials. Is this information in the public domain? Can you discuss this material?
SF: The information is not in the public domain, although I do not believe that it is classified. I don’t know if I can discuss it, but would not even if I could. The information is likely to be controversial and was entrusted to me because of concerns held by the person that provided it to me that it would be destroyed.
TP: I can understand your refusal to disclose pending legal matters in accordance with your attorney-client obligations. But why tell us that you have discovery materials for the 9/11 case, then refuse to discuss the matter? And why haven’t you reviewed this material when your client is accused taking part in the most heinous crime in U.S. History?
SF: Your question presumes that what happened on September 11th was a crime. That, sir, is for the jury to decide, not the news media or bloggers. The reason I haven’t reviewed the evidence is two-fold: First, I will not be representing Mr. al-Baluchi in his New York trial. As I’ve explained, the government will move to have me removed as Mr. al-Baluchi’s attorney by the judge, and the judge will grant the government’s application. The judge will then appoint government-approved counsel to represent my client.
While I can’t imagine a circumstance that he will accept the court’s move, it will happen nonetheless. The second reason that I haven’t reviewed the evidence is because it is irrelevant. The President of the United States has already announced, prior to the defendants even being charged in this matter, that one of them, my client’s uncle Khalid Sheikh Mohammed will (1) be convicted and (2) be sentenced to death. Furthermore, the Attorney General of the United States has already announced that (1) “failure is not an option,” which presumably means that an acquittal is not to be tolerated, and that (2) even if the defendants are acquitted, the United States government will hold them indefinitely for reasons that apparently have yet to be developed. In other words, this is a case where the evidence is, paradoxically, irrelevant.
The reason for this is the fact that the 9/11 New York trial will be, like the military commissions before it, a show trial choreographed by the government for the purpose of processing these men to either a lifetime of imprisonment, or their deaths, whichever the government can squeeze out of the jury. As a result, the evidence you seem eager for me to review is meaningless and would afford my client no benefit. This trial will not be a legal proceeding, it will be a political lynching brought for the purpose of adding further support for America’s suspect “War on Terror.” Hence, the detainees’ stated tactic of fighting this on a political level (the detainees’ justification defense) rather than on a legal level. This is the direct result of the President’s and Attorney General’s lawless actions in condemning literally before they are even charged.
TP: Wait a minute, during our phone conversation I asked you if you were going to represent Mr. Baluchi at the trial in New York. You said, and I quote, “I would refuse to do it”. Now you’ve just said the government will move to have you removed as Mr. Baluchi’s attorney.
Are you Mr. Baluchi’s attorney right now, and are you at this time scheduled to represent him in New York? You are not saying you have refused to represent him, you are assuming that you will be removed. Can you clarify this?
Then you say that all the evidence is irrelevant, because the President and Attorney General have guaranteed a guilty verdict. Yet in the previous paragraph you are telling us that the question of whether a crime has been committed is for the jury to decide. So which is it?
SF: My refusal to represent Mr. al-Baluchi and the government’s intended effort to block me from doing so are not mutually exclusive. The government will attempt to block me from representing him and if it is unsuccessful in doing so, which is highly unlikely in light of Judge Kaplan’s decision in Mr. Ghailani’s case, I will refuse. There is nothing contradictory about each of these arguably independent circumstances.
I am Mr. al-Baluchi’s attorney in a habeas case in Washington, DC and have been authorized to speak for him with respect to his New York defense. I do not, however, represent him in any case in New York. Indeed, he does not have a case in New York, at the present time. After all, I can’t represent him in a case that doesn’t yet exist.
Under our system of justice, whether a crime was committed is for the jury to decide. The fact that it is not being permitted to do so in the 9/11 case is why the 9/11 New York trial will merely be a political show trial for the purpose of affording the government the opportunity to continue its propaganda war against the American public. After all, assume you are a juror in a trial where the prosecutor’s ultimate bosses have already announced, before the defendants in the trial have even been charged, that, (1) they will be found guilty and (2) if the jury screws up and doesn’t find them guilty, that the executive branch will override the jury’s decision and sentence the defendants to life imprisonment anyway. What would you, as a juror, think about that? I’d think I was merely wasting my time sitting on jury duty, that the jury should be excused from the charade, and that the defendants should be summarily convicted without wasting the time and energy to go through the trial process.
TP: For the benefit of readers, Mr Fenstermaker has already stated why he would refuse to represent Mr. Baluchi or any other detainee at the 9/11 trials. When I asked him why he would refuse, he said; “Because I think the international community may one day open up a war crimes investigation into the war on terror, and a lot of these judges and lawyers may be prosecuted themselves.”
The 9/11 trials will be a show, precisely because the detainees will be representing themselves, or they will be defended by government stooges. However, since they plan to plead not guilty, the government must at least go through the motions of presenting evidence and convincing a jury. Therefore the evidence is relevant.
So, let’s discuss the evidence, or lack thereof. Can you tell us how you came by these “discovery materials for the 9/11 case”? Why is this information controversial? Who gave this information to you? You also mentioned that whoever gave you this information feared that it might be destroyed. Can you tell us why the person who gave you this thought that?
SF: I will not tell you how I came about these discovery materials, other than to tell you that the person who gave them to me loves America deeply and respects the values for which it purports to stand. I have not reviewed the materials, so it may be premature for me to describe them as controversial. However, as they have to do with 9/11, they are likely controversial, or at the very least newsworthy.
The reason that the materials may be destroyed is because they were meant for the military commissions, which were designed to enable the government to hide information, including the materials I now have in my possession. As these detainees apparently no longer face trial by military commission, it may be more difficult for the government to hide this information, other than by way of destroying it.
TP: Can you give us details about any evidence the government has against these detainees?
SF: No. As I mentioned earlier, I haven’t reviewed any of this evidence, nor do I have any plans to do so. I will not be representing Mr. al-Baluchi in his New York trial, so there is no need for me to review this evidence. While I do represent Mr. al-Baluchi in his habeas case in Washington, that case is essentially meaningless. Even if we were to secure a writ of habeas corpus, the government would never release him and would, if necessary, execute him before doing so. Hence, the evidence is of no moment to me in my capacity as Mr. al-Baluchi’s counsel.
TP: Do you think your client committed the crimes he is accused of? Do you think the detainees who will stand trial in New York committed the crimes the government is about to accuse them of? Do you think Khalid Sheikh Mohammed was the “mastermind of 9/11″?
SF: I never give such issues a second thought in this, or any other, case. Any attorney who tells you that he or she considers such matters in his or her clients’ cases is not being forthright or isn’t much of an attorney. Attorneys live in a world of reasonable inferences drawn from evidence, not in a world of what happened, or what didn’t happen. We leave that to bloggers.
TP: You have stated that all evidence in the case is irrelevant. Yet here you have said that “attorneys live in a world of Reasonable inferences drawn from evidence”. Earlier you called the upcoming New York trial ” a show trial, choreographed by the government”. Since the detainees plan to plead not guilty, there will be a trial. That means the government will have to convince a jury that these men committed the crimes they are accused of. How will the government convict the detainees without evidence?
SF: I don’t know that the government doesn’t have evidence. Perhaps it does. Perhaps it doesn’t need it, at least under my theory. It is highly unlikely that any jury will have the temerity to acquit these defendants, irregardless of the evidence, or lack thereof, particularly in light of the firestorm of publicity that arose recently after I articulated Mr. al-Baluchi’s apparently controversial defense. Indeed, it is unlikely that the judge will even allow Mr. al-Baluchi to even present his defense. If the judge disallows Mr. al-Baluchi the ability to present his defense, then evidence of his defense is, by definition, irrelevant.
Furthermore, my claim that the evidence is irrelevant is tied to President Obama’s declaration that my client’s uncle will be convicted and that he will receive the death penalty, claims that were made before my client’s uncle was even charged. In addition, Attorney General Holder’s proclamation that “failure is not an option,” and that the government has every intention of holding my client and his codefendants in custody, even should they be acquitted, are support for my claim that the evidence is irrelevant, as is the grand jury now hearing evidence here in Manhattan in the 9/11 matter and the petit jury that will hear the trial itself.
TF: Could you articulate this “controversial defense” Mr. Baluchi has planned, for the benefit of our readers?
SF: The controversial defense is that he and others participated in the September 11th terrorist attacks, but that they were justified in so acting as they were doing so in self defense and in the defense of others.
TP: You said you “articulated” Mr. Baluchi’s defense. Did you propose this defense, or help him plan it? Or are you repeating what he has told you he is going to do at the trial? Where did this “justification defense” originate?
SF: I neither proposed this defense, nor helped him plan it. I am merely repeating what he told me he plans to do at trial. I think this justification defense originated in the minds of all those people throughout the world who can see America for what it is, rather than what we, as Americans, would like to believe it to be.
TP: During these interviews, you have made it clear that the government is controlling the legal process. You have stated that the Obama administration is determined to put on a “show trial” that will convict, then kill the detainees. If that is the case, then why would the government allow the detainees to plead not guilty?
SF: Because the government has no choice. Defendants always have the right to plead not guilty and there is nothing the government can do about that. In addition, the trial itself will serve as an excellent platform for the government propaganda machine. You should expect at least two years of fear-mongering, flag-waving, drum-beating, and Islam-baiting. We’ll all be in quite a frenzy by the time it’s over. The only question left will be “so who do we invade next”. The guilty verdicts will be quite anti-climatic and will be merely a prelude to further aggressive foreign policy initiatives.
To be continued …