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Series about law, its inconsistencies, idiosyncrasies, absurdities as evidences by real clients, real cases, real evidence, real facts, and real law. Two New York lawyers using examples from cases and their own experience to demonstrate law's shortcomings.
Welcome to behind the blindfold, a podcast featuring your hosts, Romeo Salta and Scott Fenstermaker, New York lawyers with over 75 years of experience between them. Using personal experience and that of their guests as well as your audience contributions, Romeo and Scott will explore the not uncommon inconsistencies, fabrications, falsifications, half truths, slight of hand, and distortions that one encounters when practicing law. Using real life anecdotes from their decades of experience supported with evidence, documents, witness testimony, correspondence, court filings, and similar support, Romeo and Scott will raise the curtain on the aspects of the practice of law that understandably lead to skepticism from you, the listening public. Scott, who's a graduate of Harvard Law School and the United States Air Force Academy, spent years litigating military commissions matters at Guantanamo Bay and related federal court habeas matters and has additional consistent experience in the federal and state courts in the United States, will provide insider accounts of the court findings that cannot be reconciled with either the facts or the law. Romeo, who has practiced in the state and federal courts in New York for over 4 decades, will share his broad and deep experience handling civil and criminal litigation in the courts.
Introduction Performer:Together, they will also bring you guests who can share similar firsthand personal experience in the courts. If you would like to participate as a guest or a contributing audience member in Behind the Blindfold, you should reach out to us at Scott at behind the blindfold.net. Scott can also be reached at 917-817-9001. Your communications will be kept confidential unless and until you authorize your host to make your experience public through a published podcast episode. So sit back, relax, and prepare to travel behind the blindfold.
Romeo Salta:Good afternoon, Scott. How are you?
Scott Fenstermaker:I'm fine, Romeo. How are you?
Romeo Salta:K. So here we are. This is the 3rd episode, 3 out of 3, involving your history and involvement with the Guantanamo Bay detainees and your interactions with the US government. This episode will focus on your elimination from the the pool of qualified civilian defense counsel. Can you just briefly explain how one becomes qualified to be part of that pool of attorneys and how you got on it in the 1st place?
Scott Fenstermaker:Sure. I'd be glad to, but the one thing I wanna do initially is just clarify. This is not gonna our our podcast is gonna be more than 3 episodes. We're just doing 3 episodes on my involvement at Guantanamo Bay. So there will be additional episodes to the podcast after these first three.
Scott Fenstermaker:The the the way that the military commissions are organized is that it's it's a single unit in the office of secretary of defense. The prosecution, the defense, and the judiciary are part of the same organization. In order to for a civilian attorney to be qualified to represent detainees before the military commissions at Guantanamo Bay, that civilian attorney has to be made part of the pool of qualified civilian defense counsel. And at least when I was involved, which was some time ago, the way that that occurred was that the chief defense counsel who was the head of the defense function in the office of military commissions, essentially approved
Scott Fenstermaker:your application to be a
Scott Fenstermaker:member of that pool. And 've remained suspended to this day. But you were qualified to be part of it at one time? I was twice qualified to be part of it. Initially, what happened was that when the first, chief defense counsel was involved, I applied and that first chief defense counsel approved me to be part of the pool.
Scott Fenstermaker:And then what happened was that there was a Supreme Court case in 2006 which ruled that the Supreme Court case in 2006 which ruled that the military commissions were constituted in violation of the separation of powers, and they reconstituted the pool after they enacted what's called the Military Commissions Act of, I believe it was 2008 or 2006. But either way, there was a a Military Commissions Act that was enacted after that Supreme Court case. They reconstituted the pool. I reapplied and was again approved to be part of the pool.
Romeo Salta:The detainees found out about you, how?
Scott Fenstermaker:Well, just to recap episode 1, which we published, end of August. In in 2005, I filed a lawsuit in the federal court in the Southern District of New York against the president, the secretary of defense, and the administrative head of the Mil Office of Military Commissions. And that lawsuit was litigated to conclusion and the the judge ultimately dismissed it based upon ruling that I did not have standing to represent the detainees because among other things that I had not communicated with them. So when that lawsuit was dismissed, I wrote letters to the 12 of the detainees in camp 7 at Guantanamo Bay, camp 7 being the top secret facility at Guantanamo Bay, which housed only prisoners who had formerly been detained in the CIA's dark site prison system. Upon receiving those letters, the 12 people receiving those letters, 8 of them wrote back to me and expressed some level of interest, greater or lesser, in my involvement in their defense.
Romeo Salta:From what from what we discussed already, you communicated with several of them. I believe it was 4, actually expressed a desire to have you represent them at Guantanamo. Is that correct?
Scott Fenstermaker:Yes. I communicated with 8 of them, but 4 of them, their the wording of their response letters was less than clear that they wanted me to represent them as opposed to they had some interest in perhaps meeting with me to discuss the possibility of my representing them. The other 4, the way that they expressed their interest in my representing them was much more clear, and I took it took the initiative upon receiving those letters to begin working on their behalf in the late fall or, of 2007 or the early winter of 2008.
Romeo Salta:And then there came a time when they were actually prevented from having a hearing in order to express their desire to have you or anybody else represent them. They were basically muted. Is that correct?
Scott Fenstermaker:That's correct. As we described in the first episode, the there were 2 detainees, Ahmed Khalfan Ghailani and Rahim Al Nashiri, who there was a disagreement between myself and attorneys who either worked for or were selected by the government to represent them about who that would represent the detainees. And in those disagreements, I applied to courts, asking for that there be a hearing where the judge would just interact with the detainee directly either by electronic means or in person and ask them, who do you want to be, your attorney? In both of those cases, in both mister Ghailani's case and mister Al Nashiri's case, the government through the justice depart excuse me, the Department of Justice intervened and essentially said that they could not testify it at a hearing like that because 1, national security would be implicated and 2, that if I didn't have sufficient evidence at that stage that I was authorized to represent them, then the judge should just rule based upon the limited, what they felt was the limited support that I had. And but as we discussed in episode 2, at the same time that that was going on, the government blocked my ability to write privileged communications to the detainees by issuing an edict on July 1, 2008 that I was no longer permitted to write privileged mail to the detainees there.
Romeo Salta:And and all of this transpired in the spring of 2008, Basically, what, May, June, July, of 2008. Is that correct?
Scott Fenstermaker:Essentially, my my disagreements with mister Ghailani's team took place really in April through June of 2008, and with mister, al Nashiri's team, it was pushed back a little bit. But essentially what happened was and I think that the listener should understand the timing because I think it'll help clarify the issues for the listener, is that on June 28, 2008, I filed a petition for a writ of habeas corpus on behalf of Rahim Al Nashiri in the federal court in Washington DC. 3 days later on July 1, 2008, I received a an email from Andrew Warden, a an attorney with the Department of Justice who informed me that I could no longer write privilege mail to the detainees at Guantanamo Bay. About 2 weeks later on July 12, 2008, I filed a petition for writ of habeas corpus for mister Ghailani in the same federal court that I habeas corpus for mister
Scott Fenstermaker:Ghilani in the same federal court that I previously filed the petition for writ of habeas corpus for mister Ghilani in the same federal court that I previously filed the petition for writ of habeas corpus for mister Ghilani in the same federal court that I previously
Scott Fenstermaker:filed the petition for writ of habeas corpus for mister Ghailani in the same federal court that I previously filed the petition for writ of habeas David Remes filed a an opposition to my petition for writ of habeas corpus in mister Ghailani's case and asked that he I be removed as mister Ghailani's attorney that that he be appointed in my stead and that they dismiss the petition for writ of habeas corpus. And then similar actions took place on mister Al Nashiri's case and I was ultimately removed in his case in in December of 2008. The importance for for the listeners' perspective is to understand the timing that led up to my suspension. My suspension was imposed on August 29, 2008. And I'll read the letter for the listener, so that the listener can get an understanding of what was said.
Scott Fenstermaker:The letter is available and I'd be glad to provide it to anybody who was the copy of it that I have. It says, dear mister 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 pool I'm sorry, civilian defense counsel pool. I note that you are not a fully qualified member of the council pool as your single scope background investigation is still pending. I also note that you do not have any cases currently pending before the 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 uniform defense counsel have been counterproductive to the mission of my office.
Scott Fenstermaker:In addition, I have concluded that you are have not been forthright with regard to your representational status of certain certain detainees, and your continued interference in these cases had made the job of more difficult for assigned counsel. I will periodically review your status, and I will brief my successor as to the details of your suspension. Signed, Stephen David, colonel, United States Army Reserve, chief defense counsel. And, again, if if any of the listeners would like a copy of that letter, I'm I'm more than happy to provide it. Essentially, what colonel David was saying was that while the rules of the military commissions, both the statutory rules and the the regulations underlying the military commissions permit for the detainee to have independent civilian defense counsel, that the government was not going to permit that to happen because what they wanted to do was have a defense function that was supplied solely by the government and overseen by the government and that anybody who was attempting to to infuse any sort of independence in the defense function was not going to be approved to do so.
Scott Fenstermaker:And colonel colonel David's letter was disingenuous in a number of respects. With respect to my interactions with uniform defense counsel, the only interactions that I had with the uniform defense counsel that would be of concern to them was with a a lieutenant colonel by the name of Mike Michael Acuff who was the appointed defense counsel for Ahmed Ghailani. And my interactions with him was solely objecting to his direction that he was going to lead the defense and that whatever role that I had was going he was going to determine and limit as he saw fit including if necessary to eliminate me from the team. With respect to his claim that I was not being forthright with respect to my representational status, I was very forthright with respect to my representational status. They had seen all of the letters and I provided them copies with each of the letters upon which I based my claims of representation.
Scott Fenstermaker:So there was no misrepresentation or or lack of forthrightness with respect to my representation of the detainees because I provided them with every single piece of evidence of my claims that the detainees had asked me to represent them. They simply did not wanna recognize the detainees' rights to select independent defense counsel. And finally, his claim that my continued interference in these cases had made the job more difficult for assigned counsel calls into question just what it was more difficult for assigned counsel calls into question just what it was the assigned counsel's job was. Yeah. I I I was gonna ask you about
Romeo Salta:that. I just let me interject. I was gonna ask you about that. It seems like, he was saying that you were impeding the mission. What was the mission then?
Romeo Salta:I mean, what exactly was it that, they or he saw you as an impediment towards?
Scott Fenstermaker:Well, that was never explained, but it's interesting because I I did ultimately write a responsive letter to to this to colonel David's letter. And essentially, what I said with respect to that aspect of his letter is I said that if I am interfering with the accomplishment of your mission or the accomplishment of the the job of assigned counsel, then your mission is illegal and what their what your assigned counsel are doing is illegal. Because from my perspective, the only interference that I've engaged in is from your ability to block independent counsel from representing these detainees. And essentially, colonel David, he left the his position shortly after he wrote this letter and he did not ultimately receive that my response letter was his successor that received that letter. But nobody ever at any time explained what mission it was that I was interfering with because they it it from my perspective, they couldn't explain how I was interfering with their mission because the only way that I was interfering with with their mission was that if their mission was an improper one.
Scott Fenstermaker:Or another way to put that would be an illegal one, which was always always was and remains to this day my position with respect to any interference that I provided.
Romeo Salta:And and that was, July 1 that that happened? No. When was it?
Scott Fenstermaker:No. This this was August this was August 29, 2008. So
Romeo Salta:Right. Okay. It it was it was, 1 month after just to get the time straight. It was only 1 month after, you were prevented from, even contacting the detainees. Correct?
Scott Fenstermaker:2 2 months. The the the this is at the end of August. It's August 29th. So it's essentially a little little over 8 weeks. July 1st was the date that mister Warden's email informed me that I could no longer communicate with the detainees by a privileged legal mail and August 29th was the date that I was suspended.
Scott Fenstermaker:And keep in mind that this had been immediately preceded by 2 habeas, filings that I filed in federal court in Washington DC on behalf of mister Al Nashiri and mister Ghailani and a rather tense standoff that I had with mister Remes who was had no contact whatsoever with mister Ghailani, but had been appointed by the military to essentially circumvent my independent representation of mister Ghailani.
Romeo Salta:Why would the typical person or the listener, let's put it that way, really care about all these maneuvers to, isolate you from the detainees who originally expressed quite clearly, at least 4 of them did, their desire to have you represent them.
Scott Fenstermaker:Because as I described in a little more detail in the second episode, if you're going to run let me let me step back just a bit. The the military commissions were always intended to play a very important political role and that being not only the military commissions but also the terrorism trials here that were held in the United States. Unquestioned victims and the alleged perpetrators had to be portrayed as undeniably bad, undeniably in the wrong, and of such nature that we could throw aside the normal rules of litigation and then and the normal rules of warfare in order to justify whatever actions we decided to take. And if you're going to do that as I and I I I described this in more detail in episode 2, but you don't really need to corrupt the judiciary or the prosecution. The prosecution is just gonna present its case and the judiciary is really just put in a position of arbitrating between the two sides.
Scott Fenstermaker:But if you need to to keep the narrative in a political realm to the government's liking, you have to control the defense. And the government knew from my background being an Air Force Academy graduate as well as a graduate of the American military's prisoner of war training that I had been trained on how to handle these matters if I myself was taken into custody by a foreign government as a prisoner of war. So in in other words, what the government was wanted to do is it wanted to circumscribe the defense so that the narrative, the political narrative, could be protected. And that is the reason that the government was so steadfastly earnest in its efforts to block me from 1 from being able to communicate from with the detainees, 2, from be blocking the detainees themselves to be able to to be able to communicate with the court, and 3rd, from even allowing me to be eligible to participate in the military commissions. And I remain ineligible to participate in in them to this day.
Romeo Salta:I don't know. Would you say that, the fear was for any of the detainees to have a forum in which to, express themselves and give their side of the story? I mean, that's what it sounds like.
Scott Fenstermaker:Absolutely. The the whole purpose of the legal end of the war on terror, and by that I mean habeas cases, criminal cases in the federal courts, or the military commissions at Guantanamo Bay is to silence the defendants and in ensure a government friendly narrative in all of the terrorism cases, criminal or otherwise.
Romeo Salta:And what possibly, could they have said? Let's let's let's assume the detainees, were given an opportunity to, speak in open court. What possibly do you think I mean, you've spoken to some of them. You know the you know the facts pretty well. What possibly could they have said, do you think, that could have caused consternation or fear by the political class or by the government?
Scott Fenstermaker:Well, I think that I think that the issue comes down to an objective view of history, really. One of the things that we are subjected to in the United States is a constant barrage of of propaganda and misinformation regarding the nature and character of our government's actions. And the idea of the United States of America detaining people and prosecuting them for acts of terrorism raises a whole bunch of thorny questions with respect to our own actions, specifically whether or not the same standards of analysis that we, use to characterize and classify people as committing acts of terrorism or being themselves terrorists could very easily be applied to us and our military, our intelligence agencies, our government, and our society. And I believe that if the detainees were had been permitted to present such information or such a perspective that it would have not necessarily would have created a legal problem for their conviction but would have pre presented a political problem with respect to the rather hypocritical and frankly absurd efforts of the United States government to misdirect the accusations of terrorism against them.
Romeo Salta:You know, this, I recall right after 9/11, there was a Saudi, I don't know if he was a prince or he was part of the royal family, I believe, gave a donation to New York City, a certain large amount of money. He stated though when he gave the money, Giuliani mere Giuliani at the time thanked him and appreciated the gesture. And I do recall that when he gave the money, this Saudi official, he said, you know, but you ought to examine why this happened in the first place or something to that effect. And Giuliani gave the money back and basically and and said, there's no justification for what happened. None.
Romeo Salta:Do you think do you think that that pretty much encapsulates what the government was scared of that they didn't wanna hear any kind of narrative from the other side that may shed some light on maybe the thinking that went behind the whole thing?
Scott Fenstermaker:I don't think it's so much that the government didn't wanna hear it because the government knows full well what the reason behind the the very not only the 9/11 attacks but the other terrorist allegedly terrorist attacks as well. What it is afraid of is 1 to a certain extent the the American public hearing it but more so I think what they're afraid of is the general world population hearing it because and the reason that they're more afraid of that last aspect of this is that it's very difficult for Americans to be objective about this issue. Prime not so much because there's anything inherently wrong with Americans, but I don't think Americans understand just how much propaganda we're fed, which essentially mischaracterizes the nature and character and qualities of our actions against others. And if we were put in a position of hearing an objective, honest, and open discussion about the nature, characteristic, and quality of our actions towards others that it would not only create somewhat of a problem with respect to the United States people but more so with respect to the world at large. Because the world at large the the justification defense while it might not be persuasive in the sense that they think it's okay to steal jet airliners and crash them into buildings and kill civilians, they certainly are going to understand the the logic behind it because the people outside of the United States, and I heard from many of them over the years that I was involved in Guantanamo, the people from outside of the United States understand this without any lack of clarity.
Scott Fenstermaker:They they completely understand what a justification defense is. They may not agree with it from a from a legal or moral perspective, but they certainly understand it. And United States, I don't think that the people can really even I I think that the the level of emotional attachment to the 9/11 attacks with by the American public is such that they could never take hearing it.
Romeo Salta:Yeah. It it would be a very difficult listen, I'm sure, for most people.
Scott Fenstermaker:Now believe me, I mean, I I I heard from many people over the years and the the pushback and blowback against that type of idea from the American people is pretty much unimaginable unimaginable. It's it's it's very intense. It's very intense. And and and the like I said, the government is not concerned about the government hearing about it because the government knows why people think that the 9/11 attacks were justified. It knows because it's the one that does these things.
Scott Fenstermaker:But what it is concerned about is to a certain extent the American people hearing this perspective and even more importantly people from other countries.
Romeo Salta:Scott, do you think that, the main reason or the the impetus for the the government to prevent you from participating in the defense of these detainees was because they possibly saw you as a threat to opening the door, so to speak, and having this discussion aired out in public with, with the detainees in open court.
Scott Fenstermaker:Absolutely. And and one of the reasons that they were concerned about that is because they trained me to do it themselves if I was a prisoner of war. So I I had been trained to take the detainees' position if I myself was put on trial in a similar circumstance. And but I think it's not only that I would open the door to that, but with my background as an Air Force Academy graduate, as a graduate of the the the prisoner of war and survival training, and as a as a graduate of Harvard Law School that I might have some credibility when I did it.
Romeo Salta:Okay. So, maybe this is just go going too far, into the speculation, but how could that have come out? Suppose you suppose you did represent them, would you have given them, the opportunity to plead their case?
Scott Fenstermaker:Oh, absolutely. I would have. And and the thing is that and I think that this is what you're getting at. It's most likely what would have happened is that the court would have forbidden us from doing that, but the act of forbidding us from doing that would have been in and of itself been more damaging than the act of allowing us to do it and that has a lot to do with the the nature of the judges that they were selecting for these major terrorism cases particularly this fellow, Judge Lewis Kaplan in the Southern District of New York. That would have been a that would have been a a knock down drag out fight and would have, you know, in my opinion, would have led to his resignation as a federal judge, and would have also essentially ended the United States' United States government's ability to prosecute terrorism cases either at at Guantanamo or in the federal court system.
Romeo Salta:Alright. Thank you, Scott. I mean, that's fascinating. This whole history of Guantanamo Bay and the the detainees there, it's a it's an ongoing story over 2 decades and we're it it's it's we're still talking about it and, the issues are as relevant today as they always have been and will continue to be. So this, is the last episode, on this particular topic, Guantanamo Bay.
Romeo Salta:We are soon to have future episodes on, other topics involving the law and issues, most of which the general public, is not familiar with and does not realize is prevalent in our system. So, so thank you very much.
Scott Fenstermaker:Thank you, Romeo. I look forward to our future, episodes.