This is the fifth in a series of interviews conducted via e-mail with Scott Fenstermaker. He is a lawyer who represented several detainees in Guantanamo bay, including Ammar al-Baluchi and Ahmed Khalfan Ghailani. These two detainees are about to stand trial in New York's Southern District Court.
TP: You have stated that "government-appointed defense lawyers are filing motions on behalf of the CIA". How do you know this? Can you give any details as to how the CIA and other government operatives are manipulating the legal process?
In a previous interview, you were careful to clarify that certain groups were "not working to convict" the detainees, but they were certainly not working in accordance with the law. Can you describe the legal mechanisms these operatives use to thwart due process?
SF: The CIA and other government-based intelligence agencies are heavily involved in the legal process at Guantanamo Bay, Washington, and New York. Each of the former CIA prison detainees has had two military lawyers assigned to his military commissions' case at Guantanamo Bay. At least one of those military defense lawyers is simultaneously a CIA agent. I know your readers will ask for the basis of this claim. I do not have evidence, as we lawyers would view it, of this claim. I can, however, assure you that it is true.
The aggression with which the military defense lawyers have interfered with the detainees' efforts to secure counsel independent of government influence is both striking and unprecedented. There is no way that the military will allow any detainee who was formerly in the CIA prison system and who is facing trial by military commission to select his own attorney. For instance, Lt. Cmdr. Steve Reyes, the military defense attorney for Rahim al-Nashiri is literally holding Mr. al-Nashiri hostage. Mr. al-Nashiri has fired Lt. Cmdr. Reyes and the civilian attorneys Reyes selected and asked that I and another lawyer defend him. Lt. Cmdr. Reyes has never taken steps to effectuate that result, notwithstanding the fact that Mr. al-Nashiri is facing the death penalty for his alleged role in the bombing of the USS Cole. Furthermore, the military will not allow any civilian defense attorney with experience with either the CIA or the military to serve on one of these defense teams, unless he or she is buried below layers of protective measures.
The reason for the intelligence community's involvement in these various legal processes is because of the role of the CIA's prison system in all of this. While most of the country views the CIA prison system as a rather recent phenomena, created solely as a response to terrorism, the secret prison system is actually much older than that, dating back at least until the early 1950s. It is also much more extensive than most people know, is still in operation, and still has hundreds, if not thousands of detainees housed therein. Mr. al-Baluchi and the other former detainees are well aware of this fact and the government has a vested interest in seeing that he and the other former CIA prisoners can never be in a situation where they can expose this ugly truth.
Normally, when detainees are detained in the CIA prison system, after their usefulness is exhausted, they are executed and no one ever knows about it. However, in an ill-fated effort to influence the mid-term elections in 2006, President Bush held a news conference, shortly after Labor Day in 2006, announcing the transfer of Messrs. Ghailani, al-Baluchi, al-Hawsawi, al-Nashiri, al-Libi, and 9 other detainees from the CIA prison system to Guantanamo Bay. President Bush's announcement did not have the intended effect, as the Republicans were soundly defeated in that election. However, his political move created a problem for the CIA. Usually, these fourteen men would have been executed and never heard from, or thought of, again. However, because of President Bush's tactic, they were brought into the light, which makes the process of disposing of them more difficult. In order to ensure legal processes that will dispose of these men in ostensibly legitimate fashion, the intelligence community is closely monitoring their cases, including by using members of the defense team who are agents of the CIA.
The legal processes by which the intelligence community is manipulating the proceedings at Guantanamo Bay, and in Washington and New York are simple. The defenses are limited and the attorneys hand-picked to ensure that this will be the case. For instance, in Mr. Ghailani's matter in New York, the very first motion filed by Mr. Ghailani's new legal team that took over after I was removed was a motion asking for an order of the court directing the government to keep the CIA prisons open. The articulated reason for filing this motion was to preserve evidence of Mr. Ghailani's treatment for mitigation purposes. The real reason was to provide the government cover in its effort to keep these prisons open.