national security litigation
Our Firm’s Involvement in National Security Matters
Mr. Fenstermaker was involved in the representation of detainees at Guantánamo Bay from April of 2004 until March of 2010. He represented Ammar al-Baluchi and Mustafa bin-Ahmed al-Hawsawi, two of the five detainees facing charges related to their alleged involvement in the terrorist attacks that occurred on September 11, 2001. He also represented Rahim al-Nashiri, who the American and Israeli governments claim facilitated the bombing of the USS Cole in Yemen in October of 2000. Mr. Fenstermaker also represented Ahmed Khalfan Ghailani, the first, and to this day only, Guantánamo Bay detainee to be brought to American soil. Upon Mr. Ghailani’s removal to New York for prosecution, a federal judge in Manhattan terminated Mr. Fenstermaker’s representation of Mr. Ghailani and, in his place, appointed counsel selected by the government.
Mr. Fenstermaker’s aggressive defense of his Guantánamo Bay clients led the Central Intelligence Agency, Department of Defense, and Department of Justice to suspend him from the Pool of Qualified Civilian Defense Counsel, the group of civilian attorneys authorized to practice before the military commissions at Guantánamo Bay. When Mr. Fenstermaker made inquiries of the Department of Defense regarding the alleged justification of his suspension, Department of Defense attorneys responded by reinstating him to represent Mr. Ghailani before the military commissions, but otherwise left his suspension intact. At the time the government reinstated Mr. Fenstermaker to the Pool, it had already decided to transfer Mr. Ghailani to New York for civilian prosecution. Hence, Mr. Fenstermaker’s reinstatement was essentially a formality.
Shortly after a number of Guantánamo Bay detainees, including Messrs. Ghailani, al-Baluchi, al-Hawsawi, and al-Nashiri contacted Mr. Fenstermaker seeking his representation, Mr. Fenstermaker notified the Department of Defense that he represented the detainees. The Department of Defense responded by appointing military lawyers to represent Mr. Fenstermaker’s clients. The military lawyers met with Mr. Fenstermaker’s clients, notwithstanding the fact that Mr. Fenstermaker directed them not to do so. In several instances, the military lawyers secured written direction from the detainees that they serve as their lawyer, rather than Mr. Fenstermaker. When Mr. Fenstermaker questioned the authenticity of these letters and sought to communicate with his clients to learn their wishes, the government cut off his ability to write letters to the detainees that are subject to the attorney-client privilege, which ensures confidentiality of communications between a client and his lawyer.
This tactic ended Mr. Fenstermaker’s ability to communicate with his clients in a meaningful manner. Shortly after cutting off Mr. Fenstermaker’s ability to communicate with his clients, the military lawyers retained civilian attorneys to assist in their efforts to sever the detainees from their chosen counsel. The civilian attorneys retained by the military to sever Mr. Fenstermaker’s relationship with his clients include David Remes, Esq., of Silver Spring, Maryland, Nina Ginsberg, Esq., of Alexandria, Virginia, and Nancy Hollander, of Albuquerque, New Mexico. After Mr. Remes, Ms. Ginsberg, and Ms. Hollander sought to interfere with Mr. Fenstermaker’s relationship with his clients, each of these attorneys was dismissed by the detainees, in favor of Mr. Fenstermaker. When Mr. Fenstermaker objected to the tactics of the Department of Defense in seeking to sever his relationship with his detainee clients, Colonel Steven David, a Army reserve officer who serves as a state court judge in Boone County, Indiana, suspended Mr. Fenstermaker from the Pool of Qualified Civilian Defense Counsel. Mr. Fenstermaker remains suspended from this Pool, over 5 ½ years after his August 29, 2008 suspension.