This is the sixth in a series of interviews with Scott Fenstermaker, the lawyer for several Quantanamo Bay detainees. In our previous interview, Mr. Fenstermaker revealed that the CIA was manipulating the defense attorneys representing the detainees. He also told us that the CIA had used the legal proceedings to enter a motion that will keep their secret prisons operating, despite a Presidential order to the contrary.
TP: I am still unclear about which of these attorneys are "clueless", and which are corrupt. You mention Colonel Colwell, and state that he is a CIA Agent. He was instrumental in having you removed as Mr. Ghailani's attorney and replaced with "compliant CJA counsel".
You also stated: "The Office of the Chief Defense Counsel for the Office of Military Commissions is a cesspool of government hacks bent on protecting the country by protecting their clients in a way ensured to bring about favored results."
Can you give us more detail about these different organizations, and their role in the legal process pertaining to detainees? And what do you mean when you refer to them "protecting the country by protecting their clients"?
Here is more of your ambivalence to the issue of who carried out the September 11th attacks: You said; "The rest of the world, particularly those in the Middle East, is well aware of this reality, which is in large part why the offered their wake up call to America when they attacked us."
Then in the next paragraph you turn around and make this statement: "We have a bureaucracy which can, with the drop of a hat, or the hijacking of several airliners, generate the fear necessary to justify the otherwise unjustifiable."
Can you please clarify for us exactly who you think attacked the United States on 9/11?
SF: The Office of the Chief Defense Counsel ("OCDC") is the office to which all of the military defense attorneys assigned to represent Guantanamo Bay detainees before the military commissions are detailed. The civilian lawyers assigned to represent the detainees in the criminal cases in New York are all members of the Criminal Justice Act ("CJA") Panel for the United States District Court for the Southern District of New York. The OCDC oversees the Pool of Qualified Civilian Defense Counsel, from which I am currently suspended, and have been since August 29, 2008. The CJA Panel provides representation to indigent defendants in federal court in New York. I am a member of the CJA panel in the Eastern District of New York. I am not a member of the CJA panel in the Southern District of New York.
Your question presumes that being incompetent and being corrupt are mutually exclusive concepts, which they are not. In one way, they are directly related, as incompetent attorneys are, by the Rules of Professional Conduct that we attorneys must follow, necessarily corrupt. The attorneys, both with the Office of the Chief Defense Counsel and the CJA Panel, will do what appears to be a satisfactory job in defending their clients. They will go through the motions in a manner that will impress the world with their seeming dedication to their clients. However, these cases, each and every one, are political prosecutions brought for political ends, and the defenses will not account for this fact. The attorneys will protect their clients, but in a way that will ensure that the relevant questions are never asked. You can't defend these detainees without attacking (peacefully) the United States and its methods. Furthermore, victory will never be had in America. Victory, if it will ever be had, will come from the international community when it finally gets fed up with the United States' "War on Terror." That is why the detainees' justification defense is so powerful. While that defense may not sell well in the United States, it will fare better in the international community.
You ask who I think carried out the 9/11 attacks. I have never given a moment's thought to who carried out the 9/11 attacks. That issue is irrelevant to my role as Mr. al-Baluchi's attorney. You misunderstand the role of a criminal defense attorney. I defend clients, not the agendas of others.
TP: You said the following: "You can't defend these detainees without attacking (peacefully) the United States". "Victory, if it will ever be had, will come from the international community".
Can you tell us why the prosecution should attack the U.S., why this would benefit the detainees, and further explain this justification defense?
Can international legal bodies such as the U.N. and World Court prosecute US citizens for the War on Terror, and do you think they should?
Irrespective of my agenda, or whether it is relevant to your role as Mr. al-Baluchi's attorney, can you just tell us who you think is responsible for the 9/11 attacks?
SF: If I led you to believe that I think the prosecution should attack the United States, I must have been unclear. I meant to imply that the defense should peacefully attack the United States. Be that as it may, challenging the United States will help the detainees by highlighting the many injustices inherent in our national perversion of the United States' judicial system in an effort to facilitate the war on terror. We have created military commissions, enacted the Classified Information Procedures Act, instituted Special Access Measures, and taken other steps of which you are unaware, all in the name of generating government-favored verdicts in criminal matters for the end of disposing of human beings after applying the patina of judicial legitimacy. Just as Germany perverted its justice system to facilitate the holocaust, we have perverted ours to facilitate our war on Islam. By challenging the perversion, the defense can highlight, for the world community, the problems created by our blind pursuit of national security, whatever that may mean, at the expense of common decency and human rights. The holocaust, after all, was justified on the ground of national security.
An international legal body will one day prosecute those who are currently prosecuting America's war on terror. In that, I have complete faith. That body has not yet been created, just as the Nuremburg war crimes tribunals had not been yet created during the height of Nazi Germany's power. Nonetheless, your suggestions regarding the UN and the World Court are along the right lines. Do I think an international legal body should prosecute those responsible for our war on terror? No. I know it. I've seen some of our war crimes up close and in the most personal of ways. The crimes I've seen are being committed by lawyers and judges, under the cover of law, rules, regulations, and procedures, just as the Holocaust was. I encourage your readers to read the play, Judgment at Nuremburg, which is a drama written about the prosecution of lawyers and judges at Nuremburg. It's chilling in its application to the wrongdoing being perpetrated at Guantanamo Bay and in New York and Washington by American lawyers and judges.