Subscribe
Share
Share
Embed
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 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@behindthebliindfold.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:Okay. Great. So this is, the second episode, that we're about to start of our podcast behind the blindfold. And the theme is, Guantanamo and your relationship to that and your experiences with the program down there, some of the detainees, your interaction with the government. First time we spoke, was very interesting.
Romeo Salta:We we discussed how a lot of the detainees did not have access to a hearing to determine, what lawyers they wanted to to represent them. Today's episode, we're gonna discuss some further interactions that you've had with the government. Well, I'll let you explain their attempts to prevent you from contacting them, the detainees that is.
Scott Fenstermaker:I think what we should do is maybe perhaps just recap a little bit about what we spoke about in the first episode just to set the stage for what happened. And specifically, what I'm gonna address today is is when the government cut off my right to write privileged legal mail to the detainees. So to set this set the stage, in the fall of 2007 and the spring of 2008, I started receiving a volume of correspondence from a number of the detainees, in camp 7 at Guantanamo Bay. Camp 7 is the top c was at the time the top secret detainment facility at Guantanamo Bay, and each of the detainees who was in camp 7 at the time had previously been detained in the CIA's prison system, black site prison system. So in order to represent them, one has to have a top secret clearance.
Scott Fenstermaker:As the detainees started contacting me in the fall of 2007 into the winter and spring of 2008, the government started to create its own teams to represent those detainees And those that those teams, to a greater or lesser extent, attempted to interfere with my efforts to represent the detainees as well as my efforts to communicate with them.
Romeo Salta:Yeah. How how do they do that?
Scott Fenstermaker:Well, it was it was different ways in different with different detainees. With respect to the detainee Rahim al Nashiri, who was the alleged mastermind of the bombing of the USS Cole in Yemen in the in October of the year 2000, the government selected a federal defender from the District of Nevada to represent mister al Nashiri as well as some military attorneys who were working with him. With respect to mister Ahmed Khalfan Ghalani, who was accused of being taking part in the bombing of 2 United States embassies in Kenya and Tanzania in September of 1998, they appointed military counsel to effectively take over his representation without consulting me and ultimately intending to sideline me from representing mister Ghailani. There were several other detainees that I was attempting to represent at the same time, but the interference on those took on different forms.
Romeo Salta:Can can you explain what those forms took?
Scott Fenstermaker:Well, with respect to Mustafa bin Ahmed Al Hasawi, they basically appointed a private attorney from Virginia to attempt to, in effect, replace me on his habeas, his, petition for writ of habeas corpus. And with respect to Ammar Al Baluchi, their efforts were less aggressive, and the civilian attorneys and to a certain extent, the military attorneys on mister Al Baluchi's case were more receptive to my involvement and less obstructive of what I was trying to do.
Romeo Salta:Were you at any time in communication with any of the these detainees detainees at all?
Scott Fenstermaker:I was in written communication with with all 8 of them. Again, as I mentioned in the first segment of this, I only attempted to represent 4 of those 8. And the reason for my selecting those 4 is that the communications from the other 4 were more ambiguous regarding their interest in my representing them, whereas it was my determination based upon the reading of the correspondence and also the translations thereof of the correspondence from those 4 detainees, those being miss mister Al Hasawi, mister Al Baluchi, mister Al Nashiri, and mister Ghailani, that they definitely asked me to help them. So I started trying to help them. And based upon my trying to help them, that led to the interference that we described in episode 1.
Romeo Salta:And do you have a were you in any communication with the government, to ascertain why you're being interfered with?
Scott Fenstermaker:Well, the government's position was that they weren't interfering with me. The government's position was that, first of all, I hadn't actually been retained, and second of all, that they were in charge of representing the defendants and the government was going to determine what role, if any, I was going to have. So the from their per from the government's perspective, they never interfered with me. From the government's perspective, they were just representing the detainees as what is was their, obligation.
Romeo Salta:So the the the detainees, didn't have any say in who, basically, who would be representing them? It would be all up to the government in essence?
Scott Fenstermaker:Well, the the detainees' ability to articulate who they wanted to represent them was limited to their ability to, 1, write letters to the outside world, and 2, their interactions with people who they were in touch with at Guantanamo Bay. And the effect of what was happening was that the government was playing favorites as to who they would allow to meet with the defendants. In in mister Al Nashiri's case, that's the gentleman who was allegedly the masterminding of the bombing of the USS Cole. In his case, they had essentially appointed a military attorney who was meeting with mister al Nashiri, and they also selected a federal defender from Nevada, Paul Turner, to represent him, and they gave mister Turner access to mister al Nashiri at the same time that they were denying me access to him. In mister Ghailani's case, there was also civilian attorneys involved, but the only people who met with mister Ghailani were the military attorneys, and they themselves were telling the outside world, including myself and the civilian attorneys, what mister Ghailani was saying.
Romeo Salta:So, what, what you heard from the military attorneys as to what mister Ghailani was saying, that was secondhand information, basically. Right?
Scott Fenstermaker:Basically, the the the military attorneys had complete control over what mister Ghailani was saying to the outside world, including myself and the civilian attorneys. The military attorneys had complete and utter control over what they claimed mister Ghailani was saying.
Romeo Salta:And I assume are you saying that they wouldn't even allow mister Ghailani to write a letter to you as proof of what he is saying? Or did you have to take the word of the military attorneys as to what mister Ghailani was saying?
Scott Fenstermaker:Here's here's what happened, and this is why the importance of this particular episode is that the military attorneys were essentially serving as a conduit of information for mister Ghailani in April, May, and June of 2008. Mister Ghailani had been writing me letters prior to that, and I had any number of letters from him where he clearly was asking me to represent him. But the reason that I mentioned specifically June, July I'm sorry, April, May, and June of 2008 is that on July 1, 2008, I received an email from the Department of Justice, specifically an attorney by the name of Andrew Warden, who informed me that I was no longer permitted to represent or or to to write privileged legal mail to any of the detainees at Guantanamo Bay, including the 4 that I was claiming to represent. So it effectively, what happened was that they, in in essence, cut off my ability to communicate with the detainees by forbidding me from write writing privileged legal mail to them that wasn't going to be inspected by the government. And as a as a New York attorney, which I was at the time and remain today, I am obligated to keep client confidences, including with the people at Guantanamo Bay.
Scott Fenstermaker:So when they inform me that I could no longer write privileged legal mail to the detainees at Guantanamo Bay, what they in essence were saying is that we're not gonna respect the attorney client privilege, and anything that you say to us or or write to the detainees is gonna be disclosed to the to the government. What ended up happening was that I ended up even when I learned that from mister Warden, I continued to write to them, and I wrote probably 50 to 60 pieces of correspondence to detainees at Guantanamo Bay after mister Warden's email was sent to me. And all of those all of those pieces of correspondence were sent back to me unopened, and I still have them to this day. And, effectively, what happened was, at that point in time, the detainees effectively would have seen me as as as disappearing from my efforts from trying to help them.
Romeo Salta:I'm curious. Could a detainee, theoretically at least, actually retain an attorney? Have for example, if let's say the family of a detainee, paid an attorney to represent a a certain detainee, would that have been allowed, or is this sort of like a military legal aid system that they got over there where they appoint, somebody to represent them?
Scott Fenstermaker:The rules were set up for just the circumstance that you just described to happen and be permitted. But in reality, that never would have happened unless the government approved that attorney. To my knowledge, it never happened with the military commissions where somebody actually retained and paid an attorney to represent somebody. That being said, the government was taking the position that it had complete control over who was authorized to do that. So in effect
Romeo Salta:So, basically, they had absolute control over who was gonna represent these detainees regardless of whether or not the detainee would would even be in a position to pay for a particular attorney. Is that correct?
Scott Fenstermaker:Like I said, that was never tested on the ground at Guantanamo Bay, but essentially, the gover what the government had done in the winter and spring of 2008 is it it had decided that it was going to control the defense. And as a result of that, anybody who was gonna participate in these proceedings was going to, in effect, have to be approved to do that by the government. And the effect of what happened in my case is that up until July 1, 2008, I was corresponding with the detainees in a bilateral fashion. I was sending them letters and they were sending me letters, and it was clear that it those 4 detainees wanted me to represent them and be their attorney. The issue came down to though that the government realized that I was not going to be complicit in allowing the the government to direct the defense, and I I informed them in very uncertain terms that I was gonna be directing the defense and whatever involvement they were going to have, when I say they, the government attorneys and the civilian attorneys that the government attorneys had selected, they were going to be acting under my direction, and the government refused to accept that.
Scott Fenstermaker:And when I made that known, that's when I got the email from mister Warden that said, you cannot send privileged legal mail. And the effect of that is it ended up ending my communications with the detainees at Guantanamo Bay. And from from the detainees' perspective, I essentially just disappeared because they never got any they never once got any mail from me after that.
Romeo Salta:Did that bother you? Did that how did you how did you feel when when you got that July 1 communication, back in 2008?
Scott Fenstermaker:Romeo, I think I think at this stage, it would make sense if I just read mister Warden's email for the listeners. And, again, leading up to this email, I was having a conflict with the attorneys from for both mister Ghailani, which was the civilian attorneys that were selected by the military and the military attorneys who were attempting to essentially run his defense. And I was also having difficulty with mister Turner, the federal defender from Nevada who was representing mister Al Nashiri. So on July 1, 2008, I get the following email. It said, mister Fenstermaker, I am one of the attorneys representing the government in the Guantanamo Guantanamo Bay habeas litigation.
Scott Fenstermaker:We have been informed by joint task force Guantanamo that you recently sent letters to Abdul Rahim Al Nashiri, ISN 10015, and Ahmed Ghailani, ISN 10012. As you may be aware there are 2 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. 2nd, a system for the privileged legal mail between detainees and eligible counsel exists under the auspices of various protective orders entered by the US District Court for the District of Columbia and the United States Court of Appeals for the District of Columbia Circuit.
Scott Fenstermaker: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 to messers Al Nashiri and Ghailani would ordinarily be processed in accordance with the procedures established for non privileged mail unless you request the mail be returned 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, Andrew I Warden.
Romeo Salta:It seems like, technically, the door was open for you to go through some procedure to allow you to send confidential, communications.
Scott Fenstermaker:And here's the problem with that. The the the way that this this email was worded is it said, well, if you only follow the rules, you can write the detainees through the privileged legal mail system. The problem with that is that they would not recognize me as the authorized attorney, and they themselves were selecting people to replace me at the same time that they were cutting off my ability to write privileged legal communications to the detainees. So one cannot view mister Warden's email to me in isolation without understanding that at the same time that he was telling me that you can't write privileged legal mail to these people. The government was selecting attorneys who could, by the by their own choosing.
Scott Fenstermaker:When I say their own choosing, the government was selecting attorneys who were authorized to send privileged legal mail to replace me in my stead as attorney for these 2 detainees.
Romeo Salta:And it appears that, they didn't want you to be the attorney because you wanted to be, basically in charge of the defenses.
Scott Fenstermaker:Exactly. And there there was voluminous communications, but particularly between myself and the military attorney for Ahmed Ghailani, which essentially said, we are going to run the defense. We are going to decide what role, if any, you have in this case. And at this point, that is when I filed the applications that we discussed in episode 1 were asked the court to ask the detainee, who do you want to represent you? And at that point, the government, specifically the Department of Justice intervened with the motions that we discussed in episode 1 where they said, these people cannot testify in any such hearing.
Scott Fenstermaker:1, because it would be a it would jeopardize national security and 2 if mister Fenstermaker doesn't have a sufficient support at this stage then he's never going to have sufficient support and you should disregard it. It was in my opinion was very disingenuous for the government to make the second claim that being that if I didn't have sufficient support that I should be disregarded at the very same time that they were announcing that I could no longer send privilege mail to Guantanamo Bay because that effectively ended my ability to get the very support that they claimed I didn't have.
Romeo Salta:Looks like it was a fait accompli.
Scott Fenstermaker:Essentially essentially what happened here at and again, one has to keep in mind the time frame. In the spring and early summer of 2008, the government had decided that I was not going to be involved in these cases. They were gonna determine, 1, who was going to be involved in the cases, and 2, what the defenses were going to be. And at the very same time, they cut off my ability to meaningfully communicate with the detainees at the same time that they were making motions to have me removed as the detainee's attorney based upon the fact that they claimed I didn't have sufficient support to represent them. So it was a catch 22.
Scott Fenstermaker:I my my ability to communicate with the detainees ended as of July 1, 2008. And at the same time, if if you remember the timing of the what happened in mister Ghailani's case and mister Al Nashiri's case, the those the motions to have me removed as their attorneys happened in, in in mister Ghailani's case, it happened in July August of 2008 immediately after mister Warden sent this email. And in mister Al Nashiri's case, it happened a little bit later in October of 2008. But at that stage, I can no longer communicate with mister Al Nashiri. So in both mister Ghailani's case and mister Al Nashiri's case, the government was having me removed at the same time that it was eliminating my ability to communicate with the detainees.
Scott Fenstermaker:And it also objected to the fact that we have a hearing asking the detainee who he wanted to represent them. So effectively, the the detainee's ability to have any say whatsoever in their choice of counsel was eliminated as of July 1, 2008.
Romeo Salta:We are led to believe most people are led to believe that, we have a judicial system that basically doesn't, take into consideration, and so let's put it this way. And so far as the rights of a of a of a defendant, the rights of somebody accused of of a crime, regardless of the nature of the crime, no matter how heinous the crime, that that person has certain rights in this country. Presumption of innocence, right to choose counsel as in 6th amendment. How how how do you square all this? How did how did it make you feel, when when was going down?
Scott Fenstermaker:Well well, I think what we need to for the purpose of the first three episodes that we're doing here, we're solely focusing on the detainees at Guantanamo Bay. Alright? I think, you know, as this as this podcast series continues, we're also going to address some things that that we've encountered that we've both encountered here in the continental United States in regular civil and criminal cases. But with respect to Guantanamo Bay, there was never a point in time that the government was really going going to allow independent counsel to represent these detainees. The government because of the nature of the cases and the effect that they were having specifically with respect to the government's attempt to develop a sense of support for the war on terror, the government was never going to allow an independent defense.
Scott Fenstermaker:The defense always had to be that the detainees were of such a nature that we could cast aside the rights that normal defendants have in an effort to protect national national defense. And essentially what the military commissions were intended to do, in my opinion, was to enable the government to characterize the defendants in such a way that it legitimized denying them due process, denying them the right to counsel of their own choosing, and indeed independent counsel of counsel independent of the government, and to the right to a basic fundamental fair trial.
Romeo Salta:Did the government have classify any of these detainees as I'll use a colloquial, phrase of a regular defendant? In other words, were they classified I I I suppose de facto, they were considered above and beyond your typical defendant, even a mass murderer, even a Timothy McVeigh, for example. They were they must have been classified something above and beyond that in order to treat them the way
Scott Fenstermaker:Yeah. It it's interesting that you raised that question because you remember one of the defendants that I've been discussing is Ahmed Khalfan Ghailani. Mister Ghailani was the only defendant who was ever transferred from Guantanamo to the United States for prosecution, and he was he was, transferred, to from Guantanamo to New York on June 9, 2009. And I was his attorney at Guantanamo at the time that he was transferred, and I was also had an entry of appearance in his case in the United States District Court for the Southern District of New York when he was transferred. And I was not notified of his transfer even though I was his attorney at Guantanamo and I was his attorney in New York.
Scott Fenstermaker:And the way that I learned that he was transferred to New York is I just opened up my computer that morning, and the front page or not the front page news, but the lead article on most of the Internet was that mister Ghailani had been transferred to New York. That's how I, as his attorney, found out about it. And a week later, the honorable Lewis Kaplan, the federal district judge in the Southern District of New York who ended up presiding over his case, removed me as mister Ghailani's attorney. In my stead, appointed a number of CJA attorneys to represent him, and they ended up representing him all the way through trial. Even though mister Ghailani made it clear that he wanted me as his attorney, and I I wanted to be his attorney if they appointed me pursuant to the Criminal Justice Act.
Romeo Salta:Were, were the other attorneys that were contemplated to represent him members of the CJA panel at the time?
Scott Fenstermaker:Well, there was a bit a bit of a shift, in the representation of mister Ghailani during what happened. The initial person who was appointed to represent him was a guy by the name of Greg Cooper, and mister Cooper was a member of the CJA panel in the southern district. But mister Ghailani apparently refused to have mister Cooper as his attorney, and he was removed from the case. But what it ended up happening was that they appointed 2 other attorneys who were members
Romeo Salta:of the CJA panel in the southern district as
Scott Fenstermaker:well as the attorneys who were members of the CJA panel in the southern district as well as a third attorney who was not a member of the CJA panel in the southern district to represent him. And those attorneys were Peter Quijano, who was the learned counsel would and or death penalty counsel, Michael Bachrach, who was also on the southern district CJA panel, and Steve Zissou, who was not a member of the southern district CJA panel. But as judge Kaplan put it, he he had established a good working he being mister Zissou had had established a good working relationship with Michael Bachrach, so they appointed him to represent him, notwithstanding the fact that the the reason that they claim that they refused to allow me to represent mister Ghailani is that I was not on the CJA panel in the southern district. So in essence in essence, what they did is they said, mister Zissou is one of Michael Bachrach's cronies, for lack of a better term, so we're gonna let him be on the case. We're kicking Fenstermaker off the case because he doesn't have a sufficient relationship with any of the attorneys that we've chosen to represent mister Ghailani.
Romeo Salta:Why why was mister Ghailani's case, out of all the others, transported to, courthouse in, in the continental United States, the southern district of New York? What made his case so special that they sought to have him tried in in the civilian court here in the US.
Scott Fenstermaker:Well, I'm not I wasn't privy to the decision making process of the government with respect to that case, but there there had been a previous trial in the southern district of New York where a number of defendants were prosecuted for the same allegations that mister Ghailani was accused of, and that had to do with the, 1998 bombing of 2 United States embassies in Kenya and Tanzania, and there had already been another trial. In fact, I believe it was in that that trial was head held in in, 2000 prior to 9/11. So there was a that that indictment that mister Ghailani was accused under under was already pending in the Southern District of New York.
Romeo Salta:Okay. So, Scott, listen. In the in the first episode, we discussed how the, detainees were not even allowed a hearing to speak to, articulate who they wanted to be their respective attorneys. In this episode, we discussed how, you were prevented from communicating in a privileged manner like most attorneys would have that ability, with certain detainees. We'll be discussing in a in a in a in a subsequent episode, your dismissal from the qualified pool of attorneys.
Romeo Salta:I mean, how can you explain how you felt about all this? And and, actually, why does it matter? I mean, I'm sure there are gonna be people saying, well, why does it matter? These people are terrorists, and they're the worst of the worst and and, good riddance to hell with them. But but how how do you feel about this issue?
Scott Fenstermaker:Well, with respect to how I felt about it at the time that this was happening in real time is that prior to getting involved in all of this, I came at this from the perspective of 1, having gone to the Air Force Academy, being a graduate of the American military's prisoner of war training, SERE, that we talked we spoke about in the last episode, and also having a great deal, you know, years years years of of ex experience as a criminal defense attorney. And all of this was unheard of in my experience and also my expectation. I was shocked by what was happening, and I was dismayed that the government not only was doing it, but that it would even allow it to happen. But go going to your your question about why it matters and why the detainees irrespective of the of the nature of the allegations against them should have the right to a fair trial is that if we're going to have a system that's bifurcated in the sense that decent people for whatever for whatever that means get a fair trial, and people who are not decent get a lesser degree of fairness to the extent of not being fair at all, How do we make that determination who gets what level of fairness?
Scott Fenstermaker:How is that determination made? And that is the question that drives what was going on at Guantanamo Bay because effectively what was happening is that the government felt the need or apparently felt the need to have complete control over the narrative of what the defendants were about, the nature of what they were alleged to have done, and their nature and character as human beings. The only way that the government could do that was to keep maintain a complete control over the proceedings. And the the the only portion of of a justice system that the government would need to control in that sense would be the defense. The prosecution was gonna do whatever it was gonna do.
Scott Fenstermaker:It was gonna present its evidence. The judges really have no effective role other than to arbitrate between the two parties. So if you if you have to or if you if you perceive the need to have to completely control the narrative, then you have to control the defense. Because if you don't control the defense, then the narrative can go wherever the defense wants to take it. And the reason, in my opinion, that the government did not want me as the attorney is that it had trained me in SERE what to do if I myself was a defendant in this type of We receive training in survival, evasion, resistance, and escape on how to deal with these types of proceedings if we were ourselves were ever brought before them in a foreign country as prisoners of war.
Scott Fenstermaker:And they knew full well that I knew exactly what to do, and they had to make sure that I couldn't do it.
Romeo Salta:So you're saying, basically, they were concerned, let's put it that way, that, your knowledge may have been used to possibly benefit the detainees in their defense?
Scott Fenstermaker:Absolutely. And that's that's why they had to they had to make sure that I I couldn't serve in that capacity.
Romeo Salta:As far as you know, were any other lawyers graduates of, US Military Academy?
Scott Fenstermaker:Well, the the lead military attorney for mister Ghailani, when I was ultimately let back on his case, was a graduate of the Naval Academy. And the lead attorney for Salim Hamdan, who was he he never faced well, actually, he did face the military commissions. That that lead attorney was a grad also graduate of the United States Naval Academy, Charlie Swift. The issue, I think, is not first of all, it's not so much whether they were graduates of military academies. It's it's a graduate it's whether they were, 1, a graduate of SERE, which not all military academy graduates partake in.
Scott Fenstermaker:Back in in the day that I was at the academy, only Air Force Academy graduates and very, very few cadets or midshipmen from from West Point in Annapolis attended that program, but everybody from the Air Force Academy did. And the other issue is whether or not that attorney was co opted by his military obligations to circumvent his or her representation of the detainees. The the issue here really is not whether a person graduate graduates from what school or the other. The issue is whether the person was in any way compromised by his his or her perceived obligations to the American government. And my obligations as I saw them were to the detainees and the detainees only, and it was clear that I was unique in that respect.
Romeo Salta:Okay. Well, thank you, Scott. I mean, that that shed some light, on this issue, quite a bit. The next episode, we're gonna deal with, your suspension from the qualified pool of attorneys, and, I'll see you for episode number 3.
Scott Fenstermaker:Thank you very much, and I look forward to, speaking to you at that point in time. Alright.
Romeo Salta:Take care. Bye bye.