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.