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?