This is the seventh and final interview conducted via e-mail with Scott Fentermaker. In our previous interview, Mr. Fenstermaker called for an international investigation of our war on terror. He also revealed a "demographic consistency" among the attorneys and judges trying these cases.
TP: I would like to ask more questions about these practitioners of Judaism. However there is a story in today's New York Times concerning your client, Amhed Khalfan Ghailani.
According to this story, lawyers for Mr. Ghailani have "raised concerns in court that their client's mental state may have so deteriorated after his detention that he may not be able to assist in his own defense". But in the next paragraph, "the lawyers said that at the moment they still believed that their client, Ahmed Khalfan Ghailani, is competent for trial". And at the end of the story the statement is repeated; "defense lawyers currently believed Mr. Ghailani "would pass the standard of competency to stand trial".
You have told us that these lawyers will; " file all of the right motions, make the right objections, question witnesses well, and make the appropriate arguments". That certainly appears to be happening here.
Do you think this competency motion is a ruse, and if so why?
SF: The competency motion is a ruse and is being used as a weapon by Mr. Ghailani's appointed counsel against him. In a previous interview, you asked me the following question, "Can you describe the legal mechanisms these [CIA] operatives use to thwart due process?" Mr. Ghailani's appointed counsels' effort to attack his competency is a perfect example of the "legal mechanisms" that the CIA operatives can use to "thwart due process." While Mr. Ghailani's appointed counsel are not CIA agents, they are aggressively taking direction from CIA agents. Mr. Ghailani is well-aware of this fact and is, apparently, resisting their efforts. Good for him!
Here is another quote from the story: "While in detention, Mr. Ghailani has said, he was subjected to cruel interrogation techniques; court papers filed by his lawyers describing his treatment have been heavily censored because the information is classified."
We have discussed how the mitigation evidence is still available thanks to the motion filed on Mr. Ghailani's behalf, do you think any of that evidence will be presented at the trial?
SF: Your question states, among other things, that "the mitigation evidence is still available thanks to the motion filed on Mr. Ghailani's behalf." That is incorrect. I never said that "the mitigation evidence is still available thanks to the motion filed on Mr. Ghailani's behalf." The mitigation evidence would have been available anyway. The motion filed on Mr. Ghailani's behalf merely served as a vehicle for the government to keep the CIA prisons open, nothing more. To give credit to the appointed counsel for the existence of the mitigation evidence is extremely misleading.
Any mitigation evidence would only be relevant at Mr. Ghailani's sentencing proceeding, not his trial. How he was treated by the CIA is not material to the issue of whether he was involved in the Embassy bombings, except to the extent that evidence the government may use was obtained as a result of that treatment. The government has already announced that it has no intention of using evidence obtained as a result of the CIA's mistreatment of Mr. Ghailani.
TP: In another example, Mr. Ghailani's counsel appears to be seeking a mental evaluation of their client, while simultaneously controlling his access to any outside influence. "The lawyers asked to have an expert, presumably a psychiatrist or psychologist, evaluate their client. They asked that the judge not order a separate court evaluation of Mr. Ghailani." "We believe he is in such a fragile state that we can only hazard a guess of what his reaction would be".
Are his lawyers concerned for his mental state, or are they keeping him isolated?
Finally, the story mentions a letter: "Judge Kaplan said he had received a letter, which has not been made public, in which "the defense has raised a question about competency of the defendant."
Can you tell us what you know about this letter?
SF: I can assure you that Mr. Ghailani is highly competent to stand trial. There was nothing wrong with him when I met with him in May and June of 2009. In fact, his behavior toward his appointed counsel is evidence of his competency. He does not, in any way or at any level, want these men as his attorneys. I can assure you that he is objecting to their involvement and their presence on his defense team in the most strenuous of terms. Mr. Ghailani has explained to them that he wants other counsel and that he will not, in any way, cooperate with their efforts. For what I hope are obvious reasons, his appointed counsel will not tolerate Mr. Ghailani's rejection of them. They were hand-picked by the government for a reason, and that was to do the government's bidding in his case. They know that, and more importantly, Mr. Ghailani knows that. He is resisting their efforts by the only means available to him.
Appointed counsels' only weapon to fight Mr. Ghailani's rejection of them is to try and have him declared incompetent. If that happens, then he can't fire them, because nothing he does will have any legal effect. This is a tactic that the military attorneys and the civilian attorneys selected by the military attorneys have used aggressively in the military commissions at Guantanamo Bay. Appointed counsel for Ramzi Bin al-Shibh, Mustafa Bin Ahmed al-Hawsawi, and Rahim al-Nashiri are all currently trying to have their clients declared unfit, for the same reason that Mr. Ghailani's attorneys are trying to do so in New York. The appointed counsel have all been fired, and they refuse to tolerate this treatment. There may be other Guantanamo detainees in the same situation, but I am unaware of whether that is the case.
