A controversial criminal defense lawyer from New York City, Scott L. Fenstermaker was thrust into the national spotlight on Monday after he announced that his client, Ali Abd al-Aziz Ali -- one of the five September 11th suspects being brought to trial in federal court in New York -- would use his court case as a platform to express political views and religious beliefs.
The story, first reported by The New York Times was quickly held up by conservatives as confirmation of their fears about the Justice Department decision to bring terrorist suspects to civilian courts.
In conversations with the Huffington Post, however, several prominent national security lawyers cautioned that Fenstermaker's interpretation of his client's intentions may be, in part, his own wishful thinking. Indeed, Fenstermaker himself told the Huffington Post on Monday that he "would like" the trials "to become more of a forum for the war on terror," specifically including detention policies and torture.
But there is context to consider. For starters, Fenstermaker isn't actually representing Ali in his upcoming criminal trial -- rather, he is representing him in a wholly separate, habeas case being considered in federal court in Washington D.C. challenging the basis of the suspect's detention. Ali, the nephew of 9/11 mastermind Khalid Shaikh Mohammed, may try to turn his upcoming criminal trial into a referendum on American foreign policy, but it won't be with Fenstermaker at his side.
The New York City defense lawyer has long been a particularly zealous critic of the Bush administration -- and now Obama White House's -- policies on suspected terrorist detention and trial. His protests have usually been in the form of legal activism. In 2005, Fenstermaker filed lawsuit in the Southern District of New York challenging the legality of the use of military commissions to try detainees held at Guantanamo Bay. It was ultimately dismissed. But "through this lawsuit," he said, "detainees found out about me and were appreciative."
But for all the vigor he brought to the cause, Fenstermaker faced practical limitations. In 2007, a federal judge in Manhattan dismissed a petition he filed on behalf of a group of detainees on grounds that he had not spoken with the suspects and wasn't "truly dedicated" to their interests. Fenstermaker appealed the ruling.
A year later, the Office of Military Commissions suspended from the Pool of Qualified Civilian Defense Counsel on grounds that his actions were "counterproductive to the mission" of the Office of the Chief Defense Counse, and that he had not been "forthright" about his representation of certain detainees.
An employee with an NGO working on national security issues, who had knowledge of the dismissal, explained that some of the top-notch defense lawyers who were representing 9/11 suspects at the time "were saying that Fenstermaker was causing a lot of trouble and was in no way qualified to be representing these guys but had managed to set up a relationship with these detainees."
Fenstermaker would ultimately challenge his suspension. In contemporaneous letters he provided to the Huffington Post, he argued that he had not seen evidence of his misconduct or a proper chance to defend himself.
In March 2009, the Office of the Chief Defense Counsel would lift the ban to allow Fenstermaker to act as the defense of Ahmed Khalfan Ghailani, the first Guantanamo detainee to be tried on U.S. soil. But by June 2009, Judge Lewis Kaplan, who was overseeing the trial in New York, had Fenstermaker removed from his position after Ghailani asked to be represented by two military lawyers.
"You have not in fact formed a close relationship with the defendant, and I think the defense department will authorize Colonel Colwell to defend Mr Ghailani," the judge said.
Nevertheless, Fenstermaker remained committed to being at the legal frontlines of the detainee issue. He said that when he first got word that Attorney General Eric Holder would be trying five 9/11 suspects in criminal court, he jumped on the first flight to Guantanamo Bay to talk to detainees. The decision ended up being announced on Friday, Nov. 13. Fenstermaker was on the ground by Monday and interviewing inmates on Tuesday and Wednesday.
Shortly thereafter, he relayed his conversations to The New York Times and provided them with a letter written by Ali, his uncle KSM and a third 9/11 defendant. The letter called President Barack Obama a "liar," warned of the "black ages of Barack" and denounced the use of torture as well as U.S. policy to the Middle East.
In an interview with HuffPost, the NGO source expressed concern that Fenstermaker's outspoken politics would potentially overshadow the serious debate finally being waged over how the United States should legally handle detainees.
But Fenstermaker insists that he is uniquely suited for the job -- untainted by the policies of past and current administrations and with close relationships to many of the suspects.
"The real problem here is an issue of trust," he said. "I can't imagine that these guys are going to voluntarily take any American lawyer other than me because of what is going on at Gitmo. The behavior and conduct of the military and civilian attorneys representing the detainees has been atrocious."