Behind the Blindfold: Detainee Isolation at Guantánamo Bay - How, Why and When
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.
Intro Performer:Using real life anecdotes from their decades
Into Performer:of experience, supported with evidence, 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. Together, they will also bring you guests who can share similar firsthand personal experience in the courts.
Into Performer:If you would like to participate as a guest or contributing audience member in Behind the Blindfold, you should reach out to us at scott@behindtheblindfold.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.
Intro Performer:This is,
Romeo Salta:Scott Fenstermaker, and, my name is Romeo Salta, and we're 2 attorneys. And, our plan is to discuss, topical issues involving the law. Probably things that mainstream media and regular people haven't heard about, and, that is our mission. Scott.
Scott Fenstermaker:How are you how are you, Romeo?
Romeo Salta:I'm doing well. I'm doing well. How about you?
Scott Fenstermaker:Doing good. Thank you.
Romeo Salta:So, this opening episode, we're gonna deal with, your experiences, at Guantanamo Bay as an attorney. Correct?
Scott Fenstermaker:That's correct.
Romeo Salta:How'd you get involved with the Guantanamo Bay of all things?
Scott Fenstermaker:Well, what led me to get involved in that was my experience, from the Air Force Academy and being an Air Force officer. When I was at the Air Force Academy, we one of the programs that we had to successfully accomplish in order to graduate was the American military's prisoner of war training which is the official title of it is survival, evasion, resistance and escape or SERE or SERE for short as an acronym. And my experience in that, led me to have an interest in what was going on at Guantanamo Bay and that's that's how it started.
Romeo Salta:Obviously, you're an attorney also. I mean, what what what experience do you have as an attorney?
Scott Fenstermaker:As an as an attorney, my primary focus in my practice at the time that I got involved was criminal defense, and I had also been a prosecutor in the Manhattan DA's office. And when you mix together my experience with criminal defense and my experience from the prisoner of war training, I got interested in what are called the military commissions, which are the war crimes tribunals at at Guantanamo Bay.
Romeo Salta:What did you apply for, apply for that commission as an attorney, or how does that work?
Scott Fenstermaker:Well, what happened is they they started these, the commissions and there's in order to be a civilian attorney to practice on them, you have to be part of something called the pool of qualified civilian defense counsel, which is a a group of attorneys that the the military and other security agencies, essentially admit attorneys into, to practice before those commissions. And I applied, for that, to be part of that pool back in 2004.
Romeo Salta:You were you were accepted at the time?
Scott Fenstermaker:I was. Yes. I I was initially accepted. And then what happened was, I I reached out to the, group of attorneys that oversee the defense which is based in the, near the Pentagon in in north Northeastern Virginia and asked them how I might be able to help. I spoke to one of the attorneys who was part of the defense, organization within the Department of Defense and he suggested that I perhaps try and help some of the detainees who had been slated for charges before the military commissions but had not yet been charged.
Scott Fenstermaker:And that's how I started to work in this area.
Romeo Salta:And this was when or 2 shortly after 9/11? It was around when was this?
Scott Fenstermaker:Well, they started the military commissions or started, the idea of creating the military commissions in November of 2001 just about 3 months after the September 11th attacks. But, they didn't really get them any momentum on them until 2004. And and I applied for the pool or to be a member of the pool in, 2004. It took a while for reasons that are unclear to me for me to be approved and I was finally approved in 2005. And in 2005 was when I, reached out to the defense organization within what's called the Office of Military Commissions, which is part of the sec Office of the Secretary of Defense at the Pentagon.
Scott Fenstermaker:And and I began the application process and was, fully admitted in 2005.
Romeo Salta:Who oversees this commission? I mean, is it a court? Is it a who oversees
Scott Fenstermaker:it? Well, the the way that it works is that there is an independent organization that reports directly to the Secretary of Defense within the within the office of the Secretary of Defense called the office of military commissions. The office of military commissions is sort of a 3 partite type organization where wherein they have the judicial branch, the defense branch, and the prosecutorial branch for the for the military commissions all within one organization. And the person who is, the head of that is called the appointing authority for the military commission, commissions, and that is the person who, brings the charges against the detainees who are facing these war crimes tribunals at Guantanamo Bay.
Romeo Salta:Right. So, you got appointed and, did you did you get any, clients once you got appointed? How did that work?
Scott Fenstermaker:Well, what happened was is I think that they were very loosely organized when they first started the office of military commissions, particularly within the defense function. And it was it was when the within the defense function that all my contacts, that that I had at the time were were taking place. I reached out to them and one of the, attorneys in that organization called, Charlie Swift recommended to me that I try and help 8 of the detainees at Guantanamo Bay that the military had announced were gonna be facing, war crimes tribunals but had not yet been charged. Because they had not yet been charged, they didn't have, attorneys assigned to them at that point. So they were essentially people who were incarcerated at the at Guantanamo Bay but had not yet been, charged with charges, so they didn't have attorneys yet.
Scott Fenstermaker:So what I did was, in August of 2005, shortly after, I spoke to Charlie, I filed a lawsuit in the federal district court for the Southern District of New York on behalf of those 8 detainees whose names I, at that time, did not know and to this day, I still do not know, essentially alleging that the government was violating their rights by holding them, in custody without charging them but had the intent to charge them. And I filed that lawsuit in August of 2005.
Romeo Salta:What was the the result of that lawsuit?
Scott Fenstermaker:Well, ultimately, what happened was is that the the court in the Southern District of New York, dismissed it claiming that I did not have standing to bring the lawsuit. And standing basically means that I didn't I myself did not have any legally recognizable injury as a result of the harms that I was alleging and therefore that I didn't have the right to bring it. And one of the one of the pillars upon which the judge in the southern district rested his decision on was that, I had not had any contact with the detainees. I'm a little confused about that because, I mean,
Romeo Salta:obviously, these detainees had standing themselves. I mean, if they brought, a habeas petition or whatever. Right? Yes. That's that's true.
Romeo Salta:The the detainees are are aggrieved,
Scott Fenstermaker:but they had no practical way of effectuating their rights in court because they they did not have any attorneys assigned to them and they were essentially being held under conditions that are as restrictive as any any conditions that any detainee could have because the as one can imagine, the detainment policies at Guantanamo Bay did not give these detainees any meaningful access to the courts. So, essentially, what happened was is that because I was suing on behalf of people that I personally wasn't in a position to contact, the court said, well, you can't effectuate their rights while at the same time that the detainees themselves had no practical way of effectuating their rights themselves. So what when the court decided that it was because that I had no contact with them that it was gonna dismiss the suit, I initiated contact with them. At the time, there was no meaningful way to contact them because the government did not effectively disclose how to reach them and I had no way of contacting them as a result. What what ended up happening is at the end of that suit, the government gave me the contact information for the detainees.
Scott Fenstermaker:But it it wasn't the 8 detainees that I originally sued upon because the government never officially acknowledged that they had that they they were actually facing military commissions charges. What what it ended up happening is is in September of 2006, President Bush held one of his more well known press conferences at the White House where he announced that he had transferred 14 prisoners from the CIA prison system, the Central Intelligence Agency prison system, to Guantanamo Bay to face these military commissions charges. And those are the those are the 14 detainees that I reached out to when the when the suit was dismissed.
Romeo Salta:It's just as a practical matter. So you're accepted into this pool of attorneys. What do they expect you to do? I mean, I mean, how are you supposed are you assigned to certain, detainees or do you have to seek them out? I mean, once you're in the pool, so what?
Romeo Salta:What what are you supposed to do after that? What what would any attorney have
Scott Fenstermaker:to do? Well, here's the thing and this is this is why I think that this discussion is important to understand is that as a practical matter, the military and probably the CIA as well, but the CIA is never really is never really clearly or transparently exposed as a participate participant in these proceedings. What what ends up happening is that the military and the CIA make all the decisions on both the charging of the detainees as well as which attorneys are gonna be representing them. And as we will see during the course of this discussion, it is that ability to control both the charging of the detainees and the assignment of the attorneys which created the problems that I'm gonna be discussing during my answers to your questions.
Romeo Salta:And by the way, what was the classification of these, detainees? Were they prisoners of war or criminals of people charged with crimes?
Scott Fenstermaker:Well, the way that it was working was that initially that they were basically classified as enemy combatants And that was a a an entire another level of litigation that was taking place. There was a there was litigation that was taking place regarding their status as enemy combatants and whether or not they were being lawfully held or unlawfully held. There was a series of supreme court cases that were decided in the years 2005 and 2006 which basically addressed the general detainment policies of those detainees. But on top of that, some of the detainees, a small subset of them were subject to these military commissions. I myself was never really getting involved at that time anyway in their status as detainees so much as I was getting involved in the military commissions process primarily because of my criminal law background.
Scott Fenstermaker:The the status of the detainees as enemy combatants was not really a criminal status as opposed to a a war wartime or combatant type, status rather than the allegations that they had actually committed crimes. But because the military because the military commissions address solely criminal allegations of a war crime nature, that was the focus of my involvement both because of my experience with my training at the Air Force Academy and also because of my experience as a criminal defense and practitioner and and former prosecutor in New York. So but but as far as their detainment status, they were enemy combatants.
Romeo Salta:By the way, were were you paid for any of this? Is is this a a paid position to be part of the pool or is it, strictly voluntary?
Scott Fenstermaker:On my in my case, it was strictly voluntary but the the way that it ultimately worked out is that after I was removed from this, which we'll be discussing during this interview, they did come up with a group of attorneys that are now essentially full time employees of the Department of Defense who are being paid, as their job to defend these people.
Romeo Salta:So the Department of Defense handles the prosecution and the defense?
Scott Fenstermaker:Exactly. And and as well as the judiciary. I mean, it's, for for reasons that I think are gonna become clearer as we continue the interview, it it's an obviously problematic setup that they have there. But in my opinion, it's purposely set up to be problematic for reasons that I'm gonna describe once once we talk a little bit more depth about what happened in my efforts to be involved in these cases.
Romeo Salta:Okay. Well, let's do that. So did you get involved in any of the cases and, if so, how?
Scott Fenstermaker:Alright. So what happened was after the case was dismissed and the government had finally been forced to provide me with the contact information for the detainees is I wrote out to of of the 14 prisoners who were subject who were, that I wrote to at Guantanamo Bay, I wrote to 12 of them. I had been given information to 2 of the 12 or 2 of the 14 had been already had attorneys, and I I did not wanna interfere with that. So I did not write to those 2. I wrote to the other 12.
Scott Fenstermaker:The of those 12, 8 of them wrote back to me and essentially, in writing back to me, asked me to help them at at one level or another. And because of the because of the clarity or lack thereof of some of the responses that I got from these 8 8 detainees, I only actively tried to help 4 of them. Because as I will describe in a moment, the government was taking the position that the detainees had not actually asked me to help them, and therefore, because of the government's position, I did not want to overstep any ambiguity, arguable ambiguity that was included in the letters that were sent to me. During and that started those, the correspondence that I sent to them and the correspondence that I received took place in the summer to fall of 2007.
Romeo Salta:Right. Who who were some of these d ten e's? Do you remember?
Scott Fenstermaker:There were a total of 8 of them that wrote back to me. And the names were, Abu al Farraj Al Libi, Mohd Narir bin lep, Mohd Farik bin Amin, Zain al Abideen, Ahmed Khalfan Ghalani, Ammar Al Baluchi, Rahim Al Nashiri, and Mustafa bin Ahmed Al Hasawi. And when I started getting these letters at at the at the time that I initially sent the letters, I didn't really pay attention. But when I started re getting the letters, I looked in more depth to determine what the allegations were against these 8 individuals. And it turned out that these were amongst the 8 most wanted alleged terrorists in the world, and they were writing me letters asking me to help them with greater level greater or lesser levels of specificity.
Scott Fenstermaker:2 of those the 8 detainees that I just mentioned were directly implicated with, the attacks on September 11th. 1 of them was Ammar al Baluchi and the other was Mustafa bin Ahmed Al Hasawi. Those 2 detainees are still facing charges as a result of the 9/11 attacks and the listens listeners will probably recognize those names. Mister Al Hasawi, is one of the 3 detainees that, had apparently offered to plead guilty and then the secretary of defense, Lloyd Austin, a couple weeks ago, revoked his plea agreement. And mister Al Baluchi was another detainee who apparently was negotiating some sort of deal, but his negotiations were not as well publicized because they did not reach any I I guess they did not reach any level of conclusion, recently.
Romeo Salta:What what were the reasons why, the deals were revoked by the secretary of defense.
Scott Fenstermaker:I myself don't have any knowledge of that. I'm not involved in it any longer and but essentially, my understanding of the deals from the from the publicity that was received is that they the effect of them is that they were going to ensure that the defendants were not gonna be subjected to the death penalty. Apparently, as a result of secretary Austin's decision to revoke those plea agreements, there's still a possibility now that they will face the possibility of the death penalty.
Romeo Salta:Okay. So just, there's there seems to be a disconnect. So, a deal was struck. Correct? Right.
Romeo Salta:And, I assume, the prosecution, the defense obviously agreed to the deal. And is there some kind of judicial oversight to this or who who would be the judge, for example? Would it have to be signed off by the the court down there?
Scott Fenstermaker:The person who would have the person who would have to sign off on them would be the appointing authority for the military commissions. Again, keep in mind that the Office of military commissions is an independent organization that reports directly to the secretary of defense and the head of that the head of that organization, the office of military commissions is is called the appointing authority and the appointing authority is the person who would have had to sign off on those, and apparently forward those that, those agreements to the Secretary of Defense. And again, I do not have personal knowledge of this because I'm not involved in it any any longer. But apparently, when the appointing authority forwarded those 3 plea deals to secretary Austin, secretary Austin rejected them and also removed the appointing authority as as the direct, oversight individual for the 9/11 case and replace that person with himself.
Romeo Salta:Okay. That that that sounds a little, draconian, doesn't it? I mean, so the appointing authority, it it appears approved of the deal and, followed procedure to put it up the chain of command to the to the secretary of defense. Correct? I mean
Scott Fenstermaker:That's my understanding. That's my understanding. Again again, I'm not involved in this at this stage. As as we will hopefully discuss during this interview, I I was removed from this this pool, but my understanding from what I've read in the news is that when the appointing authority approved the plea bargain deals of the 9/11 defendants and forwarded them up the chain of command, the secretary of defense rejected them.
Romeo Salta:Sounds like, political pressure there.
Scott Fenstermaker:I I I don't have personal knowledge of that but as as we will hopefully discuss when we get back to discussing, how I was removed from this, I the the listener should get a better idea of how this might have happened.
Romeo Salta:Alright. So, so you're part of the pool and and you were ultimately removed and what was the reasoning behind that?
Scott Fenstermaker:Well, let me give you a little bit bit of background behind what happened. As I mentioned, I wrote to the detainees in the summer of 2007. Again the 12 that I wrote to, which included the 8 that I've mentioned that I that wrote back to me. But I wrote to them and, during the course of my receiving the letters, I started to act on the behalf of 4 of the detainees. So the the the 2 9/11 defendants that I've mentioned as well as Ahmed Khalfan Ghalani who was alleged to have been had to have taken part in the bombing of 2 United States embassies in East Africa and and Kenya and Tanzania back in 2008.
Scott Fenstermaker:I'm sorry. Not 2008. In 1998. And as well as Rahim Al Nashiri who was allegedly the mastermind of the bombing of the USS Cole which was the United States Navy ship that was bombed in a port in Yemen in, October of the year 2000. And what happened was as I started getting the letters from these 8 detainees and specifically the 4 that I just mentioned, the two 9/11 defendants, mister missers Al Hasawi and Al Baluchi and mister Ghailani and mister Al Nashiri, I started reaching out to the office of military commissions and informing them that I was gonna be representing these people before the military commissions.
Scott Fenstermaker:And so what happened was during the period from, say, October of 2007 through through the summer of 2008, the military as well as probably the CIA as well because the CIA was involved in all of these cases as a result of the fact that all 8 of these detainees or actually all 12 of the detainees that I wrote to had been detained in the CIA prison system, and therefore the CIA was involved in all these. What ended up happening and I can describe this in greater detail as you question me, is that the military attorneys at Guantanamo Bay who were part of the defense function in the office of military commissions began implementing a number of roadblocks to my involvement. And as you question me, I think that the nature and extent of those roadblocks will become clearer and what will end up happening is the the listener will understand why, not only I was removed from this pool but also why there's so much political involvement in these cases.
Romeo Salta:Okay. Okay. So by the way, the the the correspondence that you received from these detainees, were they clear and unequivocal that they wanted you to represent them?
Scott Fenstermaker:To greater and lesser extents. Okay? And remember that I told you that I had only agreed to represent 4 of them. It was my belief based upon my understanding of the contents of the letters from those 4 4 detainees that they clearly want me to represent them. With respect to the other 4, it was clear that they had an interest in in speaking to me and that they wanted to meet with me in order to establish some sort of relationship.
Scott Fenstermaker:But because of my concerns about how the the government was going to resist my involvement in these cases, I did not attempt to represent those other 4 because I was concerned about the government attempting to call into question the the veracity of my claims. As as it turned out, even with the 4 that I I attempted to represent, the government questioned the veracity of those claims as well. Although I don't think that they did that in good faith. But again, as we discussed this in in greater detail, I think the listener will understand what the government was doing and why.
Romeo Salta:Let's back up a second. I mean, the whole point of you being on on, this pool of attorneys is to represent the detainees. Correct?
Scott Fenstermaker:That that's that is that's the theoretical point. That's the theoretical point. But but, but, again, I'm gonna as I'm gonna explain when you as you question me, the the actual reality of that is that the the pool of qualified civilian defense attorneys is not an independent organization of attorneys who's who have been approved to represent, people, in a fair minded, even handed, and independent basis. The real purpose of the pool of qualified civilian defense attorneys is to lend a a patina of legitimacy to the to the military attorney's representation of these defendants. Based upon what happened to me, it is my belief that the purpose of the of the actual defense of of these defendants by the military is to essentially make sure that the narrative of their cases is is kept within strict bounds.
Scott Fenstermaker:And because of my background as an Air Force Academy graduate, a graduate of SERE and as a as a graduate of Harvard Law School, I think that there was some concern amongst the military as well as the CIA that they would not be able to effectively oversee my compliance with their narrative.
Romeo Salta:K. What gave them that idea? What was it what was it that you did or didn't do, that that made them decide that, they really didn't want you to represent any of these people?
Scott Fenstermaker:Well, it was 2 things. 1, I think was that they trained me on how to be how to represent people who were in this very position. And part of this, training that we had in SERE had to do with the possibility that you would should you become a, prisoner of war that you would be brought before war crimes tribunals in a foreign country and that those war crimes tribunals would be used for political purposes and we were trained on what to do should that ever happen to us. So I was literally trained by them on how to represent myself if I were ever in this position and knowing how to represent myself facilitated my knowledge on how to represent these detainees. And second of all is that I was when the military started to get involved in my efforts to represent these people, which was back in the fall of 2007 through through basically the fall of 2008, I was resistant to the military's efforts to control the scope of my representation and as a result of my my resistance to the government's efforts to control the scope of my representation, the government became dissatisfied with me.
Scott Fenstermaker:And as you as as you specifically asked me about my representation of the detainees, particularly mister Ghailani and mister Al Nashiri, I think it's gonna become clear what what I did and what was causing the problem.
Romeo Salta:Now they already knew your background, right, when you applied?
Scott Fenstermaker:When you say they, who you who are you talking about?
Romeo Salta:Well, the the whoever decides who goes into this pool of attorneys, the the commission or the Department of Defense.
Scott Fenstermaker:Yes. They had all my records. I mean, they had all my records. I mean, the my records from the Air Force Academy, would have been available to them, and and they knew who I was and and what the issue was. I mean, most of the attorneys, at least the ones that I'm aware of, who were part of this pool had absolutely no military experience whatsoever and and had no idea what to do when dealing with the military.
Romeo Salta:Okay. So with respect to, say, mister Ghailani, what what what did you do or would you say that you ruffled some feathers? I mean, for for lack of a better
Scott Fenstermaker:That that would put that would be putting it mildly. Essentially, what happened was is that in starting in in the fall of 2007 around October November, I started notifying the, government of all 4 of my involvement in all 4 of these cases. And that they again, the government had freely stated that it was going to charge each of these fellows with war crimes. And I had notified the government that I was gonna be involved in all 4 of these cases. And, the government, what it did was it started to assign military attorneys to oversee the defense of each of these 4 detainees, including mister Ghailani and mister Al Nashiri.
Scott Fenstermaker:And those attorneys essentially informed me that I was not going to be involved and that they were gonna be conducting the defense without my meaningful involvement. What happened was is when, I started learning of this claim from the government, I started pushing back and explaining to them in no uncertain terms that I was the attorney. The the rules of the military commissions as well as the Military Commissions Act all make it clear that the civilian defense attorney, if he's retained by the detainees, is the lead counsel and and he or she is going to be conducting a defense. Well, the government, from based upon the actions that I saw had no intention of respecting that role of the civilian lead counsel and essentially was made clear that the government was going to be determining the defense and circumscribing whatever efforts an independent attorney would have in the defense of these detainees.
Romeo Salta:So basically, what you're saying is a detainee would have a lawyer but the lawyer had to do whatever the whatever the commission said he had to do. I mean, I I I mean, you you're talking about oversight of an attorney who's trying to do his or her job. Is is is that is that what it sound that that sort of sounds like?
Scott Fenstermaker:It's it's an oversight. It's it's an oversight of the attorney who's trying to do his or her job by the very organization that's trying to to secure the death penalty against that, defendant. Yes.
Romeo Salta:So, basically, they would they would determine what kind of defense you can proffer? What kind of, I don't know, what kind of arguments, what kind of motions, what kind of, what kind of legal theories you can they would tell you what to do, what not to do?
Scott Fenstermaker:It didn't even get to that point because it they with respect to my involvement in these cases, they they were going to determine not only what what defense I was gonna present, but what my role was going to be at all. In fact, they in mister Ghailani's case, the military attorney whose name was Lieutenant Colonel Mike Acuff, a c u f f, told me that that essentially I was not gonna have any role in the proceedings at all, and that he himself was going to direct the defense and decide what was going to be done. And during a series of communications that I had with mister or excuse me, Colonel Acuff back in April, May June of 2008, he made it clear that he made it clear that if I were to continue to attempt to independently represent mister Ghailani without Colonel Acuff's approval that he would have me removed as mister Ghailani's attorney. Now at the time, what happened was, that in May of 2008, lieutenant colonel Acuff met with mister Ghailani at Guantanamo Bay, at a time when I had no access to mister Ghailani and only could communicate with him through very delayed, correspondence.
Scott Fenstermaker:And, Lieutenant Colonel Acuff claimed to have gotten the assurance from mister Ghailani that it was okay that colonel Acuff would direct the defense. As a result of my concerns about the circumstances surrounding colonel Acuff's meetings with mister Ghailani, I pushed back and I informed colonel Acuff that he was not to speak to mister Ghailani any further and he had no permission to meet with him. At which point, I was told that, I had no role in saying what level of communications Colonel Acuff could have with mister Ghailani and that he Colonel Acuff was going to ensure that the defense was done, was conducted in a manner that was acceptable to the military and to the CIA. Although Colonel Acuff directly mentioned the CIA but the CIA was involved heavily in each of these cases.
Romeo Salta:Alright. Well, it sounds like, it's it's just, this whole process was designed to give the appearance of, of an objective trial or court proceeding or judicial process. But it was really conducted, I mean, it that that that it was managed, let's say, by the, very people that was prosecuting them.
Scott Fenstermaker:That's correct. And and what would happen in mister Ghailani's case is that when it became clear to me that Colonel Acuff was was essentially, essentially what had happened was that Colonel Acuff had commandeered the defense of mister Ghailani's case in such a manner that it would be amenable to the authorities in
Intro Performer:the American government and any other foreign countries that might be involved, that I filed
Scott Fenstermaker:a petition for a writ of habeas corpus in the federal court in Washington in June of June 24, 2008, to essentially attempt to gain some control over, the defense of mister Ghailani. And it was my filing of that, petition for habeas corpus as well as one, in mister Al Nashiri's case that led to what ultimately happened and what I'm which I'm gonna describe in a few minutes when you ask me about, how my involvement in these habeas cases ended.
Romeo Salta:So you you you filed the habeas, writs. Correct?
Scott Fenstermaker:I filed I filed 1 on June 24th for mister Ghailani, and I filed 1 on I believe it was July 12th for mister Al Nashiri. Mister Al Nashiri, the the military attorneys were not as directly involved in contacting me directly. But what happened what
Romeo Salta:By the way by the way, let let me interrupt. Were were these were these writs filed that were in the Southern District of of New York or where?
Scott Fenstermaker:No. The the way that there was a case, that was decided in 2008 in the Supreme Court which decided that the petitioners or the the the detainees at Guantanamo Bay had the right to file petitions for writs of habeas corpus and the that the appropriate venue for that was the federal district court in the District of Columbia. So these these I'm sorry.
Romeo Salta:So it was in DC. Yeah.
Scott Fenstermaker:Yeah. Yeah. These petitions for writs of habeas corpus were filed in DC.
Romeo Salta:K. And, what happened to the writ?
Scott Fenstermaker:Well, two different things with respect to the 2 different writs for mister Ghailani and mister Al Nashiri. With respect to mister Ghailani, shortly after I filed the petition for writ of habeas corpus, one of the civilians civilian attorneys, that Lieutenant Colonel Acuff had drafted in order to assist in his, essentially hijacking mister, Ghailani's defense, a gentleman by the name of David Remes who was at the time with Covington and Burling in Washington, filed a an entry of appearance in that case. He made a motion to strike my appearance and to have himself appointed as mister Ghailani's, attorney, in the habeas case and also ask that the habeas case be dismissed because according to affidavits that were filed by lieutenant colonel Acuff and the chief defense counsel whose name was colonel Steve David, according to affidavits that they filed, mister Ghailani did not want a habeas case filed for him. So essentially what what happened was is that an attorney that was working with lieutenant colonel Acuff under his direction essentially made a motion to kick me off the case.
Romeo Salta:Alright.
Scott Fenstermaker:And sit and I'm sorry. Go ahead.
Romeo Salta:It was maybe just back up. So an attorney was, taking over for for you. Correct? And
Scott Fenstermaker:He was attempting to. He was attempting to.
Romeo Salta:Alright.
Scott Fenstermaker:Based upon based upon I'm sorry. Go ahead.
Romeo Salta:And and he made a motion to strike the writ that you filed.
Scott Fenstermaker:He made a motion to to to strike my appearance Your appearance. In the in the case. He made a motion to dismiss the habeas case, and he also made a motion for an order of the court directing that I not be able to file any further papers in court on mister Ghailani's behalf.
Romeo Salta:Is there any logical reason why mister Ghailani would not want a writ of habeas corpus filed?
Scott Fenstermaker:From his perspective, no.
Romeo Salta:I mean, is there any strategic reason, any any any rational reason why, someone in his position would not wanna have, his writ heard in court?
Scott Fenstermaker:From the perspective of the detainee, no.
Romeo Salta:Whose perspective?
Scott Fenstermaker:From the perspective of the United States military, the Central Intelligence Agency and other any other governments that were involved in these cases, they they did not want these cases to go forward in in that venue. The the the, I'm I myself have never been able to confer with lieutenant colonel Acuff or mister Remes regarding the reasoning behind this effort to to strike that petition, but there was no rational basis from the the detainees' perspective, from mister Ghailani's perspective to strike that petition. None.
Romeo Salta:Oh, that's amazing. Isn't he? And did did mister Remes say that Mr. Ghailani specifically say that mister Ghailani did not want it, filed, or or was that just
Scott Fenstermaker:Well, what happened was there were 2 there were there were 2 affidavits. The affidavits mister Remes had no contact whatsoever with mister Ghailani. None. He didn't didn't speak to him. He didn't write
Romeo Salta:to him.
Scott Fenstermaker:He had no because because mister Remes told me he didn't. Okay. And but his only his only knowledge of mister Ghailani's desires came from Colonel Acuff and and Colonel David, who were mister Ghailani's military counsel and mister Ghailani's military's counsel supervisor. So So 2 officers from the United States Army informed mister Remes that mister Ghailani did not want a habeas
Intro Performer:petition filed, and they didn't want me having anything to do with the case. And mister Remes filed this application to essentially get me
Scott Fenstermaker:kicked off the case.
Romeo Salta:Alright. For maybe for for those listeners who don't understand what a writ of habeas corpus is or what exactly was requested or plead in, in the writ. What exactly did the the writ, seek? What was the purpose of the writ?
Scott Fenstermaker:It was basically a a petition for a writ of habeas corpus is a is a petition seeking to address the legality of a individual's custodial status. And the writ that I filed was purposely very brief. It was, if I recall correctly, 2 pages, and it just basically said he was being held illegally by the federal government at Guantanamo Bay.
Romeo Salta:The argument was that mister Ghailani didn't want to have his argument heard in court. I mean, according to, according to the military, he decided, he he he didn't want the court to hear his
Scott Fenstermaker:Correct. Correct. Not only did he not want the court to hear a challenge to the legality of his detention but he also didn't want me involved in his defense at all. And and and the the purpose of this episode is to address address that. So I think if we continue to ask the questions and we also need to address the parallel proceeding that was going on in mister al Nashiri's case at the very same time, I think it'll become clear, why.
Romeo Salta:Right. So with regard to mister Al Nashiri, same thing. You you filed a writ in DC.
Scott Fenstermaker:Well, what happened what happened to mister Al Nashiri's case is that there was a competing attorney from the federal defender for the District of Nevada based in Las Vegas, whose name was Paul Turner. And mister Turner was attempting to, secure mister Al Nashiri as his client with the assistance of the government. And when I learned of what was happening, I filed a petition for of for writ of habeas corpus shortly after mister Ghailani's petition was filed. And mister Al Nashiri's petition, I believe, was filed on July 12th whereas mister Ghailani's petition had been filed on July on June 24th. And the same thing essentially what happened was that shortly after I filed the petition for mister al Nashiri, mister Turner filed one shortly thereafter, and there became a dispute in the federal court in Washington about whose petition was authorized.
Scott Fenstermaker:And the the focus of this particular episode talks about one specific application that I made in both of those disputes in which I applied for the to the court for the court to actually ask the detainees who they wanted to be as their attorney. And the the the process of litigation of that request is, I think, really the focus of this episode.
Romeo Salta:Okay. So the, alright. But this other attorney filed a writ, sort of like a parallel writ, and, disputed your your representation of, of the of the detainee. Is that correct?
Scott Fenstermaker:I think in the writ I don't know that he I I don't I never actually read mister Turner's writ. It was filed after mine so I never really considered his to be the actual petition. But essentially, mister Turner took the position that I had no authorization whatsoever to represent mister Al Nashiri. As a result, my petition should be dismissed notwithstanding the fact that I filed mine first and that I actually had communications with the detainee, which led me to believe that he wanted me to to assist him. In both of these disputes, the one that this where mister Remes filed to have me removed from mister Ghilani's habeas case and the and the habeas petition dismissed.
Scott Fenstermaker:And in mister the dispute between my petition and mister Turner's position in Al Nasiri's case, I made parallel applications or nearly identical applications in both cases to have the judge convene a hearing either at Guantanamo Bay, at Washington or virtually over some sort of electronic format to just ask the detainee who they wanted as their attorney. And it was that application that really and how the it played out with that is really the the thrust of this episode.
Romeo Salta:Okay. So can can you explain what, what arguments were made, if any, by the, Justice Department or or the government, with regard to both of these petitions? What would they, what arguments were being made, if any?
Scott Fenstermaker:Well, in in Ghailani's case, it was pretty straightforward. They just said that that Colonel Acuff and Colonel David had met with mister Ghailani Right. And mister Ghailani informed them that that he wanted his petition withdrawn and me fired. Okay. And with respect to mister Turner's application, he basically said that that they had been working on trying to represent mister al Nashiri for some time and as a result of the fact that they had been working on their efforts to help him for some time that it would be unfair to them to dismiss their case.
Romeo Salta:It would be unfair for them to dismiss the case? Was it dismissed? What hap
Scott Fenstermaker:yeah. It would be unfair for the it would be unfair for the court to dismiss their petition as opposed to mine because they had been working on it for some time and had had dedicated some resources to it. That's essentially what their argument was. They they had no real relationship with mister Al Nashiri. They were permitted to meet with him in May of 2008, whereas I had been given no permission to meet with him at all.
Scott Fenstermaker:They were had been given permission to meet with him. He did sign some sort of authorization during that meeting, but at on the same day, he wrote to me and said he wanted nothing to do with them and asked me to to to protect him from mister Turner and his colleagues.
Romeo Salta:He actually said that, that he he he wanted you, not them.
Scott Fenstermaker:Yes. And not only that, but he wanted me to protect him from them. Yes. In a letter that was dated the very same day that mister Turner met with them met with mister al Nashiri. Yes.
Romeo Salta:What what ultimately happened to that, mister Turner's writ or petition or what happened to his case?
Scott Fenstermaker:Well, again, the thrust the the focus of this episode is my application for the for the hearing which where the court would directly ask the defendant or not the defendant, but the detainee who he wanted to represent them. What ended up happening was that the in both of those cases, mister Al Nashiri's case and mister Ghailani's case, the the Department of Justice intervened and essentially said that no such hearing should be held. 1, because it would create a national security threat, and 2, because if I didn't have sufficient evidence of, my right to my right to represent the detainees then I my my petition should be dismissed. And one thing that I should mention and it is gonna be the subject of the second episode that we're gonna do is that on July 1st, right between my filing of these two petitions, the the government issued an edict declaring that I was no longer permitted to write privileged legal mail to the detainees. So, essentially, what happened is as this dispute between mister Turner, mister Remes, and myself was playing out in these two cases, the government announced that it was no longer gonna deliver privileged legal mail from me to the detainees.
Scott Fenstermaker:The effect of that, and again, we're gonna discuss this in much greater detail in the second episode, was that it essentially cut off my communications with the detainees at the same time that I needed assurance from them that I could represent them. So essentially essentially what happened was is that the the, the court decided based upon the government's opposition to any hearing that about whether or not mister Ghailani and mister Al Nashiri wanted me to represent them. The the government the court decided that it didn't need to hold such a hearing and it dismissed both of my habeas petitions based upon the government say so in in both cases. They based solely based solely upon the say so of 2 military officers.
Romeo Salta:Right. Well, with with respect to mister Ghailani, they said mister Ghailani didn't want it. Okay? So that, that takes care of that, I suppose. But, they didn't have to come up with any kind of, decision on the writ because it was with it was withdrawn, based on the say so of these okay.
Scott Fenstermaker:It wasn't withdrawn. It was dismissed. It was dismissed that it was it wasn't withdrawn. I I did not withdraw it. I did not I would never would have withdrawn that.
Scott Fenstermaker:But the the the court, based upon the say so of 2 military officers from the same military that was holding him in custody, dismissed mister Ghailani's habeas petition based solely upon the say so of 2 field grade military officers who were in the same military that was holding him in custody.
Romeo Salta:And with regard to mister Nashiri, they cited security issues?
Scott Fenstermaker:No. In both of them in both of them, the the courts denied my application for a hearing. Again, the hearing the sole purpose of the hearing was to ask the detainee, mister Ghailani and mister Al Nashiri, who do you want to represent? The government opposed that based upon national security claims and also the claim that if I didn't have sufficient evidence of my right to represent them that I shouldn't be able to further inquire regarding that. And again, keep in mind that mere weeks before this was taking place, they had cut off my ability to write privileged legal mail to the detainees, all of them, every detainee at Guantanamo.
Romeo Salta:And this even though that you were an approved member of the pool of attorneys?
Scott Fenstermaker:Yes. And and as I as we're gonna describe in the 3rd episode, I was suspended from that pool shortly thereafter. I was suspend again, the the notification that I could no longer send, privileged legal mail to Guantanamo Bay was dated July 1, 2008. About 8 weeks later on August 29, 2008 I was suspended from the pool. But we're gonna describe that in the 3rd episode.
Romeo Salta:Okay.
Scott Fenstermaker:So at this at this stage, basically, what happened was is that I the the detainees I could no longer communicate with the detainees in any efforts that I had taken to help them were were being dismissed as a result of claims of, either government attorneys or attorneys selected by the government to represent them. And that that effectively ended my ability to to help any of the detainees at Guantanamo Bay with the exception of Amar al Baluchi, who we can discuss in later episodes. Just to make clear, at this stage, my federal court efforts to help these detainees had ended as a result of applications filed by government selected attorneys and the the the attorneys had been able to secure orders from the court forbidding me from following any further efforts on their behalf. And the government had also cut off my ability, eliminated my ability to communicate with them through privileged communication channels. And as an as a New York attorney, I'm obligated to make my communications confidential, and therefore, I could no longer ethically communicate with the detainees about their legal needs.
Romeo Salta:That's that's amazing. Alright.
Scott Fenstermaker:Yes. It's it's also true. And it's and I have documents to to substantiate each and every claim that I'm making here.
Romeo Salta:Do you know of any other attorney that was isolated like you were?
Scott Fenstermaker:No. No. No. I mean, one of the one of the things that was very clear to me in dealing with Guantanamo Bay is that every attorney who was participating in this was complicit with the government's controlling the litigations. And and that continues to this day.
Romeo Salta:Well, when you say hold on. When you say complicit, you mean they had to bend to the rules of, that that that were that were handed to them, you know?
Scott Fenstermaker:They not only had to, but they very willingly and enthusiastically did so. I mean, what what mister Remes did in his application is is nothing short of shocking. What what mister Remes did in his application to have me removed, is stunning. Stunning. And and mister Remes is, just so you know, is from the habeas standpoint, was one of the best known lawyers for the detainees at Guantanamo Bay.
Scott Fenstermaker:But what he did in mister Ghailani's case, I mean, I I don't know the best way to characterize it other than to say that it was stunning. And at the time, he was a partner at Covington and Burling in Washington. He he subsequently was left, I believe, because he was asked to because he got in some trouble in in Yemen, with an incident during a an interview. And he was asked he was he left Covington and Burling , and he's been gone since. But at the time that he was doing this, he was a partner at Covington and Burling and and literally got a habeas case dismissed without any knowledge or contact with the client.
Scott Fenstermaker:And in in in a circumstance where the dismissal thereof was completely inexplicable from a strategic standpoint.
Romeo Salta:Right. Do you know if he represented any other, detainees?
Scott Fenstermaker:Many. Many. I mean, David Remes was one of the most prolific, attorneys at Guantanamo Bay with respect to the habeas cases. I don't know about the military commissions. As far as I know, the only military commission that he was nominally involved in was mister Ghailani's.
Scott Fenstermaker:But with respect to the habeas cases, he was one of the most prolific attorneys at Guantanamo, which is one of the reasons that I highlighted the nature of his activities in mister Ghailani's dismissal of his habeas case because it was completely and utterly inexplicable what he did.
Romeo Salta:So he filed, he filed writs on behalf of other detainees in Guantanamo?
Scott Fenstermaker:Many. Many. I I mean, many. It might be for all I know is dozens. I mean, he was very very prolific, in representing the defendants in habeas cases at Guantanamo.
Scott Fenstermaker:Again, I don't know about the military commissions, but he filed many habeas petitions, and certainly knew what they were. But one of the things that one learns with respect particularly to the military commissions is if you don't do what the military wants you to, you're gonna be gone. And mister not only did mister Remes do what the military wanted him to, but what he did was inexplicable and just there there's no explanation for it. None.
Romeo Salta:Okay.
Scott Fenstermaker:And I I think that that really was the focus of the first episode, Romeo, because really what I wanted to emphasize for the purpose of this type of podcast is the the fact that the government opposed having a hearing where they asked the defendants who they wanted to represent them. I mean, literally at that stage, the government had complete and utter control of the representation of these detainees, and the detainees had nothing that they could do or say to to protect themselves. And any independent effort to help them, which was mine, was stymied by the government attorneys. And and the government's position that these these detainees could never even testify about such a simple question of that being what who what they wanted to represent them is was really the focus of this episode.
Romeo Salta:Well, then we'll, we'll go deeper into the story of, your experiences in at Guantanamo with the next few episodes.
Intro Performer:And and
Scott Fenstermaker:I look forward to speaking to you again at that time. Thank you. Have a nice day, Romeo. Alright.
Romeo Salta:Thank you very much. Alright. Bye.
