Ed Morrissey Attempts to Unscramble Scott Fenstermaker

Update: Welcome Hot Air readers! Thanks for the link, Ed!

Last week I posted this video of Bill O'Reilly's interview with attorney Scott Fenstermaker in which Fenstermaker explains his role as a member of the defense team for two of the 9/11 terrorists coming to New York. He claims to also represent the USS Cole bomber who has been relegated to be tried in a military commission.

If Fenstermaker is purposely trying to come off as despicable public enemy number one, he is succeeding, and, appears to be pleased with that perception, as evidenced by the video.

After that video aired on television last week, Ed Morrissey at Hot Air began an email exchange with Fenstermaker which has been fascinating, sort of like watching a train wreck. Basically, Fenstermaker claims to represent two of the detainees, but says he can't meet with them, because of ACLU and DoJ interference, and the only evidence he has of his representation is that they asked for him:

I represent Mr. al-Nashiri and Mr. al-Baluchi, but Messrs. al-Hawsawi and Mr. Ghailani both want me as their counsel, but have been denied by various federal judges to have counsel of their choice. I have never been permitted to meet with Messrs. al-Nashiri or al-Hawsawi, as a result of the government’s claims that I don’t represent them. The only evidence I have of my representation of Messrs. al-Nashiri and al-Hawsawi is multiple letters from them asking me to represent them. The government doesn’t recognize that apparently. In addition, the fact that I am cut off from writing to them also creates a bit of a logistical problem as well.

Ed rightly concludes then, that the fact of representation is still an open question, one that he will attempt to unravel this week.

On the one hand, as an interview subject, Fenstermaker is very forthcoming with Ed and offers to share documents and emails freely. However, he is a frustrating subject as well, because he throws out accusations or claims, then tells Ed to go elsewhere to get the information. Sometimes this is because Fenstermaker claims not to know the reasons, and other times, it just seems coy.

For example, in Ed's November 24 post, Ed points out that Fenstermaker was "booted from the military commissions civilian defense counsel pool in 2008 for 'counterproductive' interactions with the staff, and not representing himself in a 'forthright' manner to the chief defense counsel." Fenstermaker responded in an email to Ed in which he tells Ed to ask the chief defense counsel himself why Fenstermaker was suspended. Ed was already on the case.

I find it hard to believe that Fenstermaker had no idea why he was suspended; he could have illuminated Ed at that point as to what had occurred, but having both sides of the story is always a good thing, and Ed had his queries out already.

In the November 25 post, Fenstermaker lays it out a little more clearly. He says that he had been asked by five detainees to represent them. He agreed to represent three of them. Of the other two, one he felt there was a conflict and the other had not directly asked him for representation, even though he has since done so and Fenstermaker believes that he does, in fact, represent the detainee now.

At any rate, after he had agreed to represent two of them, Fenstermaker claims that the John Adams project paid government selected attorneys to have him removed from the case. The John Adams Project is a joint venture between the ACLU and the National Association of Criminal Defense Lawyers (NACDL) formed to assist in the representation of detainees facing prosecution at Guantánamo.

Does Fenstermaker know why the Project and the DoJ wanted him removed? It's hard to tell. He says "I urge you to contact the ACLU and ask them why they dropped the John Adams Project..." but then explains that the detainees fired their John Adams Project attorneys as soon as they learned of his suspension. Fenstermaker says that this interference in his representation is a violation of their rights and blames the ACLU and NACDL for "assisting in these violations." He alleges wrongdoing in that they "went so far as to pay civilian attorneys to do legal work, with donated funds, to violate these guys' rights."

We're then told to believe that the detainees were so upset about Fenstermaker's suspension that they fired their attorneys and tried to plead guilty. He says that his "suspension was a real sore spot for the detainees":

My suspension was a real sore spot for the detainees and directly led to the 9/11 defendants firing their military and civilian attorneys and attempting to take a guilty plea about 12 or 13 days after they learned, on October 22, 2008, that I had been suspended.

As it stands now, Ed Morrissey is following up on the question of who really represents whom. I can't figure out why Fenstermaker is making such a show of this. He had to know how inflammatory his comments on the O'Reilly interview would be. For him to hold the position with both Ed and O'Reilly that the 9/11 victims weren't necessarily murdered is preposterous. His line is "that's for a jury to decide" is just ridiculous, and intentionally inflammatory.

Fenstermaker is baiting the American public with this interview with O'Reilly and this very open exchange with Ed Morrissey. Fenstermaker has made it clear that he's reading all the comments on Ed's posts, and he has almost insisted that Ed print his email address and cell phone number for readers to contact him. He even offered to meet with them. He's baiting Ed's readers when he says

Please encourage your subscribers to continue attacking me. Their attacks only highlight how absurd it is for people who don’t know what is going on to have a say in matters such as these. For bloggers to imply that I never served on active duty is quite humorous. My AF friends are getting a kick out of this. I relish reading your subscribers’ nonsense.

Multiple times he makes reference to the readers and comments.

But what are his motivations? Do you really want to invite that much negative publicity? Does he hope it will taint his client's case? Is he trying to build his own case against the ACLU and DoJ? Is he trying to be the next Gloria Allred or Mark Geragos? Is he trying for a reality show?!

At any rate, it's going to continue to be interesting to see what Ed uncovers here in the next few days, or if Fenstermaker makes any more television rounds. You can bet he isn't going to crawl quietly back under his rock.

For more, see Ed's posts in full:
November 24
November 25
November 28