The Scott Fenstermaker Interviews, Part IV

This is the fourth in a series of interviews conducted with Scott Fenstermaker. He has represented several of the detainees being held in Gantanamo Bay, including Ammar al-baluchi, who will stand trial in New York for allegedly taking part in the September 11th attacks. In the previous interview, we discussed the evidence available to the detainees, and their controversial “justification” defense.

TP: A recent story from Reuters describes SAMs, or special administrative measures, to be used on the detainees. These measures include “solitary confinement, 23-hour-a-day lockdowns, constant video surveillance and almost no visitors”. I have read that they have been provided with laptop computers, but denied internet access.

Given these restrictions, can you tell us what information the detainees have access to in planning their defense?

SF: I should first explain that the SAMs were used to keep me from visiting my client Ahmed Khalfan Ghailani while I was his attorney in his federal court criminal matter in New York. I represented him, as counsel of record, from June 9, 2009 until June 16, 2009, when Judge Lewis A. Kaplan granted my application to withdraw my notice of appearance because of Judge Kaplan’s refusal to permit me to represent Mr. Ghailani pursuant to the Criminal Justice Act. During that eight day period, I was not permitted to either visit Mr. Ghailani in jail or to write a letter to him, notwithstanding the fact that I was Mr. Ghailani’s counsel of record.

I sent Mr. Ghailani four separate letters that were rejected by the Department of Justice and returned to me without delivery to Mr. Ghailani. Mr. Ghailani is almost certainly unaware of those letters or their contents. The SAMs were instrumental in my removal as Mr. Ghailani’s attorney, as I was unable to prepare him for his June 16th court appearance, at which Judge Kaplan orchestrated my removal as Mr. Ghailani’s civilian counsel.

In answer to your question about what access the detainees will have to information necessary to planning their defense, the answer is simple. They will have whatever access their government-appointed counsel provide them. Mr. Ghailani’s case is a perfect example. In his criminal case, after my removal, his government-appointed counsel are participating in multiple court appearances before Judge Kaplan where Mr. Ghailani is not present, and he therefore presumably has no idea what is happening at his own court appearances, unless his government-appointed counsel inform him of the substance of the appearances.

Similarly, many filings in Mr. Ghailani’s case are classified and he is almost certainly unaware of the substance of the classified materials in his case. Furthermore, Mr. Ghailani’s government-appointed counsel have filed at least two motions, ostensibly on Mr. Ghailani’s behalf, at the express behest of the Central Intelligence Agency. In one of those motions, Mr. Ghailani’s government-appointed counsel expressly misrepresented statements I made in court on June 16th during the hearing at which I was removed as his counsel of record. Why government-appointed defense lawyers are filing motions on behalf of the CIA in a matter such as Mr. Ghailani’s is beyond me.

TP: How many visits have you actually had with the detainess, and what pertinent legal information did you discuss?

SF: I visited with Mr. Ghailani for three days in May at Guantanamo Bay. I visited with him on June 9th and June 16th in New York immediately before his New York court appearances on those two days. I cannot discuss my conversations with him, as those conversations are the subject of the attorney-client privilege.

I have visited with Mr. al-Baluchi for two days in July of 2009 and three days in November of 2009, all five days spent at Guantanamo Bay. I cannot discuss my conversations with Mr. al-Baluchi, except to the extent that they dealt with his desire that I publicize his “justification” defense. Our conversations about his justification defense have recently been the subject of international press reporting and I believe you are well-aware of the entirety thereof.

TP: Do the detainees have access to any publicly available information, outside of contact with you and their government appointed counsel? You mentioned that the detainees talked among themselves. If they can come together and decide on a justification defense, could they also proclaim that they are innocent of these charges?

SF: The detainees have access to publicly available information, but I am not sure of its source. Mr. al-Baluchi knew more about Bernard Madoff than I do. The detainees could, if they wanted, proclaim their innocence.

TP: Can you speculate as to the source of their information? Can you tell us about Bernard Madoff? And finally, if the detainees have access to publicly available information, are they aware of the allegations that 9/11 was an inside job?

SF: I can speculate about anything, but I think the source of the detainees’ information is besides the point. I don’t think Mr. al-Baluchi’s knowledge of Bernard Madoff is particularly important to his case or our discussion. Mr. al-Baluchi is well-aware of the claim by some people that 9/11 was an inside job and he specifically addressed, and refuted, that claim (although if the government were involved in 9/11, he may very well not be aware of that fact).

TP: Exactly when and where did Mr. al-Baluchi specifically address, and refute, the allegations that 9/11 was an inside job? And if he is well-aware of the claims that 9/11 was an inside job, how could he not be aware that the US government was involved?

SF: Mr. al-Baluchi refuted the claims that 9/11 was an inside job during an attorney-client meeting at the United States Naval Station at Guantanamo Bay, Cuba on either November 17th, 18th or 19th of 2009. He may not be aware of the US government’s involvement in the terrorist attacks for one of two reasons: (1) the US government wasn’t involved, or (2) it was involved but no one let him in on the government’s involvement.

TP: Were you present at this attorney client-meeting? Were you his attorney at this meeting? And was anyone else present? Has he refuted the allegations that 9/11 was an inside job in private only, or has he also said this in any legal proceedings?

SF: Mr. al-Baluchi and I were the only people present at this meeting and I was his only attorney at the time. I do not know if he has refuted the claim that the United States government was involved in the 9/11 attacks in any legal proceedings. I do know that he has taken responsibility for the attacks in a legal proceeding.

TP: When you say he has refuted claims that 9/11 was an inside job: Does that mean he is aware of the overwhelming evidence for the controlled demolition of all three World Trade center Towers, and the complete lack of evidence for planes crashing into the Pentagon and at Shanksville? And that being aware of these facts, he still wants to take responsibility for the attacks?

SF: I think we have to be cautious of confusing the theories of anti-government zealots with evidence. Mr. al-Baluchi stated that he has no knowledge of the government’s involvement in the 9/11 attacks. I have seen no evidence of the government’s involvement in the attacks. Furthermore, as I’ve stated previously, I will not be defending him in the New York trial, so I have not investigated the substance of the allegations against him.

TP: If you are implying that I am an anti-government zealot, I’m okay with that. But let me be clear, I do not claim to know that “the government” is responsible for 9/11. I do know the official story is a lie.

I am not confusing knowledge of government complicity in the 9/11 attacks with evidence, or the lack thereof. When I refer to an “inside job”, I am referring to the evidence of controlled demolition of all three World trade Center towers, and the lack of evidence for planes hitting the Pentagon, or crashing in Shanksville. Here is a documentary called “Loose change” that has been online for over three years.

http://www.youtube.com/watch?v=1Yx9NRX37SM

As you can see, the video effectively demolishes the official version of events. Are you aware of the implications made in this, and many other documentaries available online? Is Mr. al-Baluchi aware of this?

SF: I am not aware of the documentaries. Accordingly, I am also not aware of their implications. I do not know of the extent of what Mr. al-Baluchi is aware, although he has never mentioned anything about the videos to which you refer nor has he mentioned the manner in which the buildings in New York collapsed. I will not be involved in his defense in New York, so I am not focused on the substance of the allegations against him.

TP: Well, can you watch this video and tell us what you think?

SF: Can I watch the video? Yes. Will I watch the video? No.

TP: Why not?

SF: Because I am not involved in the substance of the allegations against Mr. al-Baluchi and I am otherwise very, very busy.

TP: You said; “Mr. al-Baluchi is well-aware of the claim by some people that 9/11 was an inside job and he specifically addressed, and refuted, that claim”. Yet if he is not aware of the allegations made by this video, and other 9/11 truth information, then what information is Mr. al-Baluchi “well aware” of? What claims pertaining to 9/11 being an inside job did he specifically address, and refute?

SF: He refuted the claim that the United States government was involved in the September 11, 2001 terrorist attacks.

TP: Okay, let’s talk about the mental state of the detainees. In my opinion Zacarias Moussaoui was an angry, anti-American demagogue, and that is why the government put him on trial. According to Wikipedia; “prosecutors in Moussaoui’s drawn-out trial had difficulty directly connecting him to the 19 participants”. But that was hardly necessary given Mr. Moussaoui’s courtroom demeanor.

When the court found that he was eligible for the death penalty he proclaimed; “You will never get my blood. God curse you all!” After being found guilty and sentenced to life in prison he shouted; “America, you lost… I won.”

We have already discussed his insistence on representing himself at the trial, and the incomprehensible pleas he entered. However, he was found competent to stand trial, and the court allowed him to represent himself. Thus, Mr. Moussaoui convicted himself.

Can you tell us whether your client Mr. al-Baluchi and the other detainees are also vehemently anti-American? And what of the mental stability of the detainees, some of whom have been incarcerated for over seven years, tortured, and placed in long term solitary confinement?

SF: I have had no interaction with Messrs. Mohammed, bin al-Shibh, or bin Attash. I have met with Mr. al-Baluchi on five separate days and have corresponded with him since the fall of 2007, except for about a year from July 1, 2008, when the government cut off my ability to write to him, until the summer of 2009, when I obtained my signed habeas authorization form. I corresponded with Mr. al-Hawsawi from the Fall of 2007 until July 1, 2008, when the government cut off my ability to correspond with him. I haven’t been able to write to him since then. He attempted to send me a signed habeas authorization form, but the government blocked it and is holding it at the secure facility in Virginia.

Mr. al-Baluchi seems fine, although a little angry about his treatment, which is understandable under the circumstances. Mr. al-Hawsawi also seemed fine, at least as far as I could tell from his letters.

Asking whether these men are anti-American is a more complicated question than might seem at first blush. The detainees with whom I have corresponded and met do not seem to be anti-American at all. In fact, I think they, as a group, both like and respect America. What they don’t like is America’s policies, which is understandable. These men are well-positioned to see America for what it is, rather than what we Americans would like to believe it to be. They hold Americans responsible for our country’s policies, as they should.

America’s history of criminal activity is legion and stretches from before the Declaration of Independence to the present day, December 12, 2009. I have been a personal witness to some of its latest crimes, which is why I would refuse to participate in the upcoming 9/11 trial in New York. If we, as Americans, do not see our conduct as criminal, then we are only kidding ourselves. In my normal criminal practice, it is quite common that my clients think they have done nothing wrong, notwithstanding the evidence to the contrary. Our society is little different. Others, however, can see us for what we are. These men have, and decided to teach us a lesson, one we haven’t learned. Instead of treating 9/11 as an opportunity for national self-reflection, we have lashed out at the messengers, to the benefit of certain segments of our society, but to the overwhelming detriment of our country as a whole.

As Mr. al-Baluchi told me, they don’t need to attack us again. We are destroying ourselves in a quest for vengeance. They won, not because of what happened on September 11th, but because of what we have done since.

To be continued …

Dec 15, 2009 | Categories: | Leave A Comment »

The Scott Fenstermaker Interviews, Part III

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 …

Dec 12, 2009 | Categories: | Leave A Comment »

The Scott Fenstermaker Interviews, Part II

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 …

Dec 09, 2009 | Categories: | Leave A Comment »

An Interview with Scott Fenstermaker

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 26^th, 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 …

Dec 07, 2009 | Categories: | Leave A Comment »