This is second in a series of interviews with Scott Fenstermaker. He is the lawyer for Ammar al-Baluchi. one of the detainees accused of taking part in the the September 11th attacks. In our previous exchange Mr. Fenstermaker revealed a pattern of government obstruction that prevented him from contacting the detainees, or representing them in legal proceedings.
His persistence in securing the legal rights of detainees led to his suspension, and even drove him to sue several members of the Bush administration, including the President.
TP: Kudos for suing President Bush, although I don't think his administration was the problem, since we are now in the Obama administration and nothing has changed.
The one detainee you have not mentioned is the "self-cast star" of this show, Khalid Sheikh Mohammed. He claims to be the mastermind of 9/11, and the CIA claims he was waterboarded 183 times. He has not only confessed to orchestrating the September 11th attacks, but to the 1993 World trade center Bombing, the nightclub bombing in Indonesia, plots to blow up oil tankers in the Persian Gulf and bridges in New York City, plans to assassinate Presidents Jimmy Carter and Bill Clinton, Pakistani President Pervez Musharraf, and the Pope.
He has also confessed to the beheading of Daniel Pearl. This last confession is problematic for the prosecution, because Ahmed Omar Saeed Sheikh, has already been convicted for beheading Daniel Pearl, and is in a Pakistani prison. Mr. Saeed Sheikh is also the man who wired lead hijacker Mohammed Atta $100,000, on orders from the head of Pakistan's ISI, General Mahmud Ahmed.
The trial would get interesting very quickly if the defense managed to depose Mr. Saeed Sheikh.
What do you know of Khalid Sheikh Mohammed's case, and what do you think of his chances in court? Also, what do you think of CIA torture techniques such as waterboarding, and how will they affect the trial?
SF: Thank you. I agree that the administrations are not the problem. The democratically elected officials in our country have, to a certain extent, lost control of the government, which is largely run by the bureaucracy.
I don't know anything more about Mr. Mohammed's case than I do about my client's, who happens to be his nephew. I have never been involved in the substance of the allegations against any of my clients. The government has always had me tied up in fighting for the ability to actually represent them. Furthermore, I do not represent Mr. Mohammed, but it is easy to see as an observer that the government has invested a lot of capital in the process of demonizing him, which is a favorite trick of prosecutors in all criminal cases, even those far more mundane than the 9/11 case. The picture taken of Mr. Mohammed when he was apprehended has gone a long way to facilitating the government's propaganda war against him.
As far as his chances in court, I think it unlikely that any of the five defendants stands much of a chance of being acquitted. The reaction I have experienced to my involvement has led me to believe that the American public has little patience for niceties like due process and the rule of law. This case will be used by the government, likely with some success, to generate further fear in the public and to further marginalize Islam and its followers. Our government wants to set Islam up as the enemy communism used to be in order to justify the never-ending war in which we are currently engaged.
The defendants are, therefore, nothing more than an afterthought at this stage. They are props in the government's tragedy and will be used according to script to paint a picture of threat, aggression, and extremism where the truth may be far from the government's desired perception. The government's efforts are helpful to the government, but of potentially great harm to the Republic. We as a nation clearly cannot financially afford the war on terror and our reluctance to reinstate the draft demonstrates quite clearly the public's real thought about the war(s).
The CIA's (and other organizations') torture techniques are what they are. The United States government has become, or perhaps has always been, the enemy against which we were trained to fight when I was at the Air Force Academy. We were taught that only terrible regimes in third-world countries run by dictators use these techniques (along with maybe the Soviet Union). I guess that is no longer true, if it ever was. Some people like to characterize these tools as pragmatic instruments of self-defense.
They are, however, very susceptible to misuse and abuse and have proven to be a public relations nightmare for our country. The detainees may try and make an issue out of them at the trial, but I suspect that the government will not seek to use any statements made by the defendants that may have been secured by mistreatment. If that is the case, the judge may very well disallow mention of them, except perhaps at sentencing.
TP: In my opinion, there are three reasons why the Obama administration has the nerve to put these men on trial: The detainees will be representing themselves; They have confessed to the crimes; And they are, (or were), expected to plead guilty to the charges against them.
Zacarias Moussaoui is the only other defendant to stand trial for a role in the September 11th attacks. Mr. Moussaoui not only tried to represent himself during the trial, he also confessed and pleaded guilty to the charges. Here are some of the pleas he entered in court, quoted from Wikipedia:
"In the Name of Allah; Censured by the United Sodom of America 4/19/2003; Case No. 01455A; 17 S 1423 Slave of Allah, Zacharias Moussaoui vs. Slave of Satan, John Ashcroft"