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 …