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.