A nasty spat has broken out among defense lawyers over an issue that is likely to be front and center in the upcoming 9/11 trial in New York: who actually speaks for the defendants?
New York defense lawyer Scott Fenstermaker has made big headlines in recent days after telling The New York Times that Khalid Sheikh Mohammed (KSM) and four accused 9/11 co-conspirators intend to plead not guilty in their upcoming trial so they can use the courtroom as a forum to attack U.S. foreign policy. (Fenstermaker is the lawyer for one of the defendants, Ali Abd al-Aziz Ali, KSM's nephew, in a civil case challenging his detention.)
The comments kicked off a storm of controversy because they seemed to bolster complaints by conservative critics that the 9/11 defendants will use Attorney General Eric Holder's decision to try them in federal court as an opportunity to preach jihad.
But the U.S. military lawyers appointed to represent the other four 9/11 defendants tell NEWSWEEK that Fenstermaker hasn't met with their clients, has no authority to speak for them, and has no insight into what they might do at the trial.
Given that there's "not any way that he's been in communication with Mr. Mohammed, I can't see how he can be speaking for him," said Army Lt. Col. Michael Acuff, the military lawyer appointed to represent KSM.
U.S. Navy Cmdr. Suzanne Lachelier, the military lawyer for accused co-conspirator -, said she was so upset about Fenstermaker's public comments and TV appearances that she called him on his cell phone this week and warned him that he could be hit with a complaint to his state bar association.
"My client is represented," Lachelier said she told Fenstermaker, adding that "you are just as aware as I am of the professional risks of speaking for a client you don't represent." Fenstermaker's response, according to Lachelier, was: "OK, OK, thanks" and then to hang up. "He was a little shocked," she said. (She also sent Fenstermaker a letter warning him that his public comments may run afoul of New York bar rules.)
"They can say whatever they want," Fenstermaker said when reached on his cell phone on Tuesday afternoon and asked about the statements by the military lawyers.
He said the military lawyers had misrepresented his public comments and that he was only speaking for his client, Ali, whom he represents pro bono in his habeas civil case challenging his detention in federal court. (Ali's military lawyer did not return a phone call seeking comment.)
Fenstermaker conceded that he has never even spoken to the other defendants. But he said the military lawyers (with whom he has clashed in the past) don't speak for them either because, he charged, their clients have refused to be represented by them and have insisted on representing themselves.
"The military lawyers have no authority to speak for the 9/11 defendants, in any way, shape, or form," Fenstermaker said. "They have no relations with these people."
Fenstermaker is a controversial figure in defense circles, where critics have accused him of seeking publicity in order to attack the U.S. government. (In an appearance on Fox News's O'Reilly Factor on Monday night, host Bill O'Reilly denounced Fenstermaker as a "weasel" after he seemed to minimize the 9/11 attacks.) In the past, federal judges have rejected his attempts to represent other Gitmo detainees, including an accused conspirator in the 1998 bombing of the U.S. embassy in Tanzania.
But in the phone interview on Tuesday, he stood by his initial comments that he expects KSM and the other defendants to plead not guilty so they can have a greater opportunity to express their political and religious views. He knows this, he said, because "Mr. Ali told me, and he speaks to them" (the other defendants). But in making such comments, Fenstermaker said, he was speaking as a "person," not as their lawyer.
The spat between Fenstermaker and the defense lawyers underscores an issue that could be highly contentious early next year when the 9/11 defendants are expected to be flown to New York to stand trial.
In the military commission case against them—which is essentially now defunct as a result of Holder's decision—all five of the defendants have at various times said they did not want to be represented by their military lawyers or any other lawyers. KSM has said he wouldn't accept any attorney who is "not governed by Sharia" (Islamic law). He and the others have also used the proceeding to attack the U.S. government and celebrate the 9/11 attacks.
A letter signed by KSM and two other of the defendants in September 2009 denounced Guantánamo as the "island of oppression, torture, and terror" and expressed greetings to Osama bin Laden and his deputy Ayman al-Zawahiri "on the occasion of the anniversary of eight years past on the most noble victory known to history over the forces of oppression and tyranny in the Washington and Manhattan attack."
In the commission case, the military judge permitted three of the defendants (including KSM) to represent themselves. But he directed the military lawyers to serve as standby counsel, and most of them have sat by their clients at the defense table during proceedings. (The judge ordered competency hearings for the other two, including bin al-Shibh. Lechelier said she has continued to meet with bin al-Shibh.)
If, as they have in the past, the 9/11 defendants refuse to accept the representation of any U.S. lawyers, a federal judge will almost certainly appoint lawyers to serve as standby counsel.
But as Fenstermaker notes, no judge can force a defendant to accept a lawyer he doesn't want. So to learn the actual intentions of the defendants, it may be that the judge and jury will have to wait to hear it directly from the accused 9/11 conspirators themselves.