HA exclusive: Pentagon memo ousting Fenstermaker from Gitmo defense counsel pool; Update: Fenstermaker responds

Scott Fenstermaker has already made himself into one of America’s Favorite Villains for representing one of the 9/11 plotters that will get a federal trial in New York City, at least among the conservative opponents to the trials.  Fenstermaker earned that by taking a public profile in the defense strategy already, apparently hoping to … well, I don’t know what Fenstermaker hopes to do by generating a lot of pre-trial publicity, none of which will help his clients in any way.  But Fenstermaker may have some explaining of his own to do.  According to an August 2008 memo provided exclusively to me by a source in the Department of Defense, Fenstermaker got booted from the military commissions civilian defense counsel pool in 2008 for “counterproductive” interactions with the staff, and not representing himself in a “forthright” manner to the chief defense counsel for the Gitmo detainees:

Mr. Scott Fenstermaker
500″ Fifth Avenue, 4oth Floor
New York. New York 101 10

Reference: Your suspension from the civilian counsel pool

Dear Mr. Fenstermaker,

After careful thought and consideration, and in accordance with the discretion granted me by the Regulation for Trial by Military Commissions, I have decided to indefinitely suspend your conditional qualification as a member of the civilian defense counsel pool. I note that you are not a fully qualified member of the counsel pool as your Single Scope Background Investigation is still pending. I also note that you do not have any cases currently pending before a Military Commission.

My decision to suspend your conditional qualification is based upon my professional judgment that your activities throughout the past year, as well as your interactions with certain of my uniformed defense counsel, have been counterproductive to the mission of my office. In addition, I have concluded that you have not been forthright with regard to your representational status of certain detainees, and your continued interference in these cases has made the job more difficult for assigned counsel.

I will periodically review your status and I will brief my successor as to the details of your suspension.

Steven David COl, USAR
Chief Defense Counsel

I have spent most of the morning attempting to get Fenstermaker and the DoD on the record about this memo, which is pictured here (click to enlarge):

The New York Times reported in June that Fenstermaker was not authorized by the DoD to act on behalf of Gitmo detainees, and alluded to the memo above:

That same month, Mr. Fenstermaker was suspended as a member of the pool of civilian lawyers who work with military lawyers in defending detainees at Guantánamo, court records show. The military office that represents detainees wrote that his dealings with some of its lawyers had “been counterproductive” and that he had “not been forthright” about his representation of certain detainees.

In March, his suspension was lifted — but only in Mr. Ghailani’s case.

Now that Fenstermaker is making himself more of the public face of the defense, perhaps we can find out what those “counterproductive” interactions involved. After all, the purpose of the defense counsel pool was to work together to represent the terrorists. In fact, it still is. And the allegation of a lack of forthright behavior strikes me as somewhat important when judging Fensterman’s representations of the case on national television

As I noted above, I have messages with the DoD and Fenstermaker asking for a response. When I receive the response, I will post it here — and with Fenstermaker, in its entirety, to the extent he wishes.

Addendum: Thanks to the boss for her help on this story.

Update: Lest one consider Col. David some sort of government shill, read his testimony from 2007 on the Boumediene decision.

Update II: Jennifer Rubin has more on Fenstermaker’s forthrightness:

A colleague provides a copy of this decision in which Fenstermaker litigated against a school district in Westchester County and sought documents from the school district in the applicable freedom of information law. But it seems he went overboard there, too. In seeking reams of documents, Fenstermaker accused the school district ”of having created a situation ‘rife with bribes and kickbacks;’ that he was certain that respondents had already altered or destroyed certain of the requested records; that counsel was operating under a conflict of interest in that he was responsible as counsel for respondents’ malfeasance; and that he was therefore demanding that the records be sent to a copy service designated by him.’” Much wrangling ensued, and the matter wound up in court.  There, the court held that each of the school district’s actions that Fenstermaker challenged were “supported by statute and administrative rulings” and that Fenstermaker ”cited no authority to the contrary.” It deemed the matter frivolous, and the court not only awarded statutory costs to the school district but also ordered Fenstermaker to pay costs “for the actual expenses reasonably incurred and reasonable attorney’s fees incurred in defending this proceeding.”

Update III: Scott Fenstermaker sent the following polite reply:


The appropriate person to contact regarding my suspension is Colonel David. I wrote to an officer in the Office of the Chief Defense Counsel, of which Colonel David used to be in charge, seeking clarification of the issues you raise. They never responded.


That’s a fair point. As of the moment, I have not heard back from any DoD contacts.