Another conversation with Scott Fenstermaker

We have a new reader at Hot Air.  After posting the previous e-mail conversation between me and Scott Fenstermaker, the defense attorney representing two of the Guantanamo Bay detainees, the comment string prompted Scott to start up another conversation, this time with more details about his allegations of misconduct by the ACLU and the Office of Military Commissions.  The conversation speaks for itself, and as before, I want to publish the entire conversation (with two redactions, which you will see) before offering my opinion on it.  Scott’s contributions will be blockquoted.

Ed,

I read some of the comments on your blog. I served on active duty from May 30, 1984 through early September of 1989, shortly in excess of my commitment. In the summer of 1984 I worked as a staff officer at the aeronautics lab at the Air Force Academy. I was stationed in Seattle, Washington from September of 1984 through December of 1985, where I received a Masters Degree in Aeronautics and Astronautics from the University of Washington. I was then transferred to Tinker AFB in Oklahoma from January 1986 through August of 1989. I left for law school in August of 1989 and started in September of 1989. I was honorably discharged from the AF in September of 1989. Your subscribers’ efforts to discredit me are amusing, but ultimately unavailing. The ACLU was actively using donated funds to violate the detainees’ rights and the ACLU is well-aware of that fact, which is the reason that they shut down the John Adams Project. Otherwise, the ACLU cannot justify discontinuing that project while detainees are still facing military commissions. If you subscribers have any questions about any of this, including my positions, please feel free to give them my e-mail address [scott@fenstermakerlaw.com] and cell number, [redacted by Ed].

By the way, please tell your subscribers that I still don’t know who attacked the World Trade Center and, yes, I still don’t care. From the perspective of those who died, it makes very little difference who killed them. From the perspective of everyone else, its frankly none of their business, unless they sit on the jury of course. Print that loud, wide, and clear.

Scott Fenstermaker

Scott,

I’d be happy to post another e-mail interview, but generally speaking, it’s a bad idea to post phone numbers on blogs. Your e-mail is already on your site, and I’m fine with posting that, but I would prefer not to post your cell number.

I’d like to find out more about your point of the ACLU. You mentioned it in the last e-mail string, and you have a little more detail here. How did the ACLU violate detainee rights?

On your last point, I strongly disagree. The murder of anyone is the business of the community, which is why we have police to find and arrest the perpetrator. If foreign terrorists attacked New York City and Washington DC, then the entire nation has an interest in fighting the foreign entity responsible for it. On the legal question of innocence or guilt, you’re right — the jury makes that legal determination. But that doesn’t mean the issue is none of anyone else’s business.

Thanks for the clarification Ed. You’re assuming it was murder, which may not be the case. It may not have been murder, but again, that’s for the jury to decide.

I’ve been receiving a lot of calls on my cell, so a few more won’t hurt and I would welcome them. Of course, if your readers speak with me, then I may be able to provide evidence to refute their various claims, and that may not be comfortable to them. In addition, if they spoke to me, then they may have to accept the fact that I’m not a nut, although I am admittedly zealous about the Rule of Law. They, as a group, have way too much trust in the military, particularly the Office of Military Commissions (OMC).

As far as the ACLU goes, the Office of the Chief Defense Counsel and the ACLU are the two organizations that have the records of the ACLU’s (and OMC’s) misconduct. That misconduct occurred in the cases of Rahim al-Nashiri and Mustafa Bin-Ahmad al-Hawsawi, for the record. If you want those records, you should ask the ACLU and OMC. If you want a description of what happened, I can provide that, but the records remain with the OMC and ACLU.

If your readers are skeptical of my claim regarding the ACLU, then they should contact the ACLU and ask why the ACLU discontinued the John Adams Project while there are still detainees facing military commissions. The John Adams Project was ostensibly created to provide paid attorneys to represent detainees before the military commissions. The reason for the Project’s discontinuance is that all of the detainees the ACLU tried to represent fired their government-appointed ACLU lawyers (and the military attorneys who appointed them), shortly after the detainees learned of my suspension on October 22, 2008. My suspension was a real sore spot for the detainees and directly led to the 9/11 defendants firing their military and civilian attorneys and attempting to take a guilty plea about 12 or 13 days after they learned, on October 22, 2008, that I had been suspended. This occurred at their first scheduled military commissions’ appearance after they learned of my suspension.

Anyway, if any of your readers have any questions about my military service, resume, suspension, or anything else for that matter related to 9/11, the military commissions, or anything else, feel free to have them contact me directly. I’d be glad to correspond with, e-mail with, talk with, or meet with any of them. They seem like an interesting group of people.

Scott

Scott,

Thanks as always for your response.

I think you’re arguing over semantics. Almost 3,000 people died, most of them on national television. They didn’t commit suicide or die of natural causes. They died at the hands of others, which makes them homicides. Who’s responsible is a question for a jury, but not the fact that they were murdered, nor do we need a jury to tell us that the nation has an interest in pursuing justice in the case.

I’d like to get your description about the misconduct. I can afterwards request comments for the record from the OMC and ACLU, but that works best when I can present details of the allegations.

Ed,

All murders are homicides. Not all homicides are murders. You may call that semantics. I call it the law. You and your friends can scoff at the law, but it is there to protect you too. Keep that in mind. I will shortly forward you an e-mail from a lawyer with the National Association of Criminal Defense Lawyers (NACDL). It begins the process of describing the ACLU’s and NACDL’s wrongdoing.

Scott

==========

Scott then forwarded me two e-mails he received, which he and I reference later in the exchange:

Mr. Fenstermaker:

I am one of the attorneys representing the government in the Guantanamo Bay habeas litigation. We have been informed by Joint Task Force Guantanamo that you recently sent letters to Abd al-Rahim al-Nashiri (ISN 10015) and Ahmed Ghailani (ISN 10012). As you may be aware, there are two systems by which detainees send and receive mail at Guantanamo. First, most mail sent to Guantanamo detainees is processed in a non-privileged fashion. That is, the mail is screened and reviewed by military authorities before delivery to the intended recipient. Second, a system for privileged legal mail between detainees and eligible counsel exists under the auspices of various protective orders entered by the U.S. District Court for the District of Columbia and the United States Court of Appeals for the District of Columbia Circuit. That system is available only in cases in which the protective orders have been entered and is subject to requirements and restrictions set out in the orders.

Because you are not authorized to send or receive privileged mail pursuant to any appropriately entered protective orders, the mail you recently sent Messrs. Al-Nashiri and Ghailani would ordinarily be processed in accordance with the procedures established for non-privileged mail unless you request that the mail be returned to you. Because that mail is marked privileged, it has not been reviewed or otherwise processed at this point. Please let me know how you would like to proceed.

Best regards,

[name redacted until I can get a response -- Ed]

We have considered your request for assistance and sympathize with your situation. However, we have a conflict that prevents us from assisting you. Specifically, NACDL is a partner with the ACLU in the John Adams Project, an endeavor that provides counsel and resources to the 14 so-called “high value detainees” at Guantanamo. NACDL has received money from the ACLU to pay lawyers and others and has also raised money with ACLU for the project via cooperative ventures. Many of the legal teams for the HVDs share information and resources (to the extent they can given the privilege and classification considerations). One of the teams that has been active in opposing your participation is funded by the ACLU as part of the John Adams Project and some of the military lawyers who have opposed your involvement in another case (also involving an HVD) are also assigned to represent HVDs represented by ACLU or NACDL representatives on those cases via the Adams project.

We regret that we can’t be of assistance and certainly wish you well.

The latter is from the National Association of Criminal Defense Lawyers, and is a response to a request that their “strike force” intervene on his behalf on the issue of his suspension. The NACDL seems to have considered that a conflict of interest; I’ll ask them for clarification on Monday. I’m posting it at the moment because it has some impact on the narrative in the e-mail conversation.

Let’s pick it back up:

=======

Scott,

Regardless of the legal difference between homicide and murder, of which I am aware, homicides are still the “business” of the community and the nation, and we have a deep interest in resolving them, which is why under almost all circumstances, homicides are a violation of the law.

Thank you for forwarding that e-mail. Did the National Association of Criminal Defense Lawyers refused to intervene on your behalf regarding your suspension, or did they refuse to bring you in as co-counsel, or a combination of the two? Does your allegation of violation of rights hinge on the detainees not being able to retain your services specifically? If so, was the agreement to let you represent Ghailani offered as a compromise?

Ed,

Well, at least I’ve gotten you to back off your murder claims.

I think you misunderstand the nature of Mr. Aronwald’s [NACDL] response to me. NACDL has a group of lawyers called the “strike force.” The strike force defends criminal defense attorneys who have problems with the authorities as a result of their vigorous representation of their clients. I contacted the strike force to secure their help in challenging my suspension from the Pool of Qualified Civilian Defense Counsel. Mr. Aronwald’s refusal announces the strike force’s refusal to help me. I suggest you contact him directly about the strike force’s refusal. You may also want to contact NACDL headquarters directly. If you don’t know NACDL’s contact information, let me know.

I was suspended from the Pool after a number of detainees, including Messrs. Ghailani, Mr. al-Baluchi, Rahim al-Nashiri, Mustafa Bin-Ahmad Al-Hawsawi, and Abu Faraj al-Libi sought my help. I notified the OMC that I represented Messrs. Ghailani, al-Nashiri and al-Hawsawi. I felt there was a conflict in representing Mr. al-Libi, so I never claimed to represent him. Mr. al-Baluchi did not directly ask me to represent him in the military commissions, at that stage, although he has since done so. However, at his 06/05/08 and 07/09/08 military commissions’ appearances, he asked the military judge presiding over the 9/11 case to allow me to represent him. He also filed a pro se motion on 10/22/08 to the same effect. The OMC has never acknowledged Mr. al-Baluchi’s requests, nor has it ever permitted me to obtain copies of the transcripts of his military commissions’ transcripts, which I requested shortly after the hearings occurred in 2008.

Shortly after I contacted the OMC regarding my representation status of these four detainees, I received an e-mail from a Department of Justice attorney in Washington, informing me that I could no longer send mail subject to the attorney-client privilege to my GITMO clients. That e-mail, a copy of which I will forward to you, was dated 07/01/08. A little less than two months later, Colonel David suspended me from the Pool. Shortly after my suspension, I contacted the strike force, and asked for help challenging my suspension. Mr. Aronwald’s e-mail was the strike force’s resolution of my request for assistance.

The OMC selected John Adams Project attorneys to serve as assistants to the OMC military defense lawyers, as the OMC has decided that no detainee facing trial by military commission can select his own private attorney. The OMC selected the John Adams Project attorneys after I was retained to represent Rahim al-Nashiri and Mustafa Bin-Ahmad al-Hawsawi. The John Adams Project then paid these government-selected attorneys money to work to have me removed as the attorney for Messrs. al-Nashiri and al-Hawsawi by actively interfering with my relationship with them, with the assistance of the government’s refusal to allow me to send privileged mail to them. Again, I urge you to contact the ACLU and ask them why they dropped the John Adams Project when detainees, including Mr. al-Nashiri, are still facing trial by military commission. The reason is that all of the detainees to whom John Adams Project attorneys were assigned fired the John Adams Project attorneys (and their military defense attorneys superiors) after the detainees learned of my suspension (on 10/22/08 at Mr. Ghailani’s military commissions’ arraignment). In January of 2009, Mr. al-Nashiri also fired his John Adams Project attorneys and his military defense counsel, informing them that he wanted me as his attorney. Shortly thereafter, rather than have Mr. al-Nashiri announce his intentions at his scheduled February 2009 arraignment, the OMC dismissed the case against him, for which he faced the death penalty for allegedly murdering 17 US sailors aboard the USS Cole.

As far as the “agreement” to allow me to represent Mr. Ghailani, there was no agreement. There was an acquiescence on their part, to which the OMC had no choice, as Ghailani was repeatedly asking for me as his counsel in the clearest and most emphatic way available to him. The OMC only acquiesced after the decision was made by the government to bring him to New York to face his SDNY indictment, which was handed down by a SDNY grand jury in December of 1998, almost 10 years prior to his arraignment before the military commissions’ judge at GITMO. The OMC allowed me to represent him in the military commissions because they knew, as of March 16, 2009, that he would never face one.

Please encourage your subscribers to continue attacking me. Their attacks only highlight how absurd it is for people who don’t know what is going on to have a say in matters such as these. For bloggers to imply that I never served on active duty is quite humorous. My AF friends are getting a kick out of this. I relish reading your subscribers’ nonsense.

Scott

Scott,

Thank you for the additional details. I will be contacting Mr. Aronwald and Mr. Warden on Monday for their side of the story, and the ACLU as well. The details have helped, as well as the contacts. Just to clarify, which current/former Gitmo defendants are you currently representing?

Ed,

When you contact Messrs. Aronwald, Warden, and the ACLU, you may also want to contact Nancy Hollander and Nina Ginsberg, the John Adams Project attorneys for Rahim al-Nashiri and Mustafa Bin-Ahmad Al-Hawsawi, respectively. Ms. Hollander is located in Albuquerque, NM and Ms. Ginsberg is located in the Washington, DC area. I don’t think I have their contact information, but I can get it for you if you want it. You may also want to contact Colonel David, who is a state court judge in Boone County, Indiana, and Colonel Masciola, who I believe is still the Chief Defense Counsel for the OMC. I think I have Colonels David and Masciola’s contact information if you need it.

I represent Mr. al-Nashiri and Mr. al-Baluchi, but Messrs. al-Hawsawi and Mr. Ghailani both want me as their counsel, but have been denied by various federal judges to have counsel of their choice. I have never been permitted to meet with Messrs. al-Nashiri or al-Hawsawi, as a result of the government’s claims that I don’t represent them. The only evidence I have of my representation of Messrs. al-Nashiri and al-Hawsawi is multiple letters from them asking me to represent them. The government doesn’t recognize that apparently. In addition, the fact that I am cut off from writing to them also creates a bit of a logistical problem as well.

Scott

Scott,

Any help you can provide in getting the proper contact information would be much appreciated. I’ll post this exchange in its entirety in the meantime, probably later today. I appreciate your responsiveness and look forward to discussing the responses of the other stakeholders with you, if and when they come.

===========

Scott provided me with the contact information, and I will follow up on Monday with the ACLU, the OMC, the NACDL, and others.

It appears to me that most of the problem Scott presents flows from the decision by the OMC and the Office of Chief Defense Counsel to suspend him from the defense pool. The issue of privileged communications arises because of that (or at least it seems so). The NACDL’s refusal to intervene on his behalf relates to the ACLU’s position, on which I cannot comment because I have not had an opportunity to ask them why they discontinued the John Adams Project.

In my opinion, his response to me about the “none of anyone’s business” remark from the first exchange was highly insufficient, and playing semantic games about murders versus homicides is a distraction. If these were homicides, then they were murders as well by legal definition. They weren’t self-defense, and they weren’t negligent homicides or even manslaughter. Whoever committed these acts and whoever else conspired to commit them, no one can doubt that they were preplanned, deliberate, and completely unjustifiable under American law. The only possible argument against that would be to call them an act of war, which would make the attack on, and the homicides of, almost 3,000 civilians a war crime — and for which a military tribunal would be the proper venue. And regardless, any homicide is the business of the entire community, and any attack is the business of the entire nation.

Scott will be reading your responses, so let him know how you feel. On the issue of representation, though, I think that’s still an open question, one which I will pursue in the coming days.

Update: John Stephenson has more on the John Adams Project at Stop the ACLU.

Update II: An interesting perspective on representation that I didn’t consider can be found at So It Goes In Shreveport.

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