Commentary Magazine


For the Defense

One big difference between a civilian trial and a military tribunal is that in the latter, the government can exercise some control over who is selected to represent the accused. In an Article III trial, the defendant can choose anyone he wants. And KSM chose Scott Fenstermaker. Others are beginning to dig and have found that Fernstermaker 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 for the Gitmo detainees.” And that isn’t the only instance of Fernstermaker’s questionable lawyering.

A colleague provides a copy of this decision in which Fenstermaker litigated against a school district in Westchester County and sought documents from the school district in the applicable freedom of information law. But it seems he went overboard there, too. In seeking reams of documents, Fenstermaker accused the school district “of having created a situation ‘rife with bribes and kickbacks;’ that he was certain that respondents had already altered or destroyed certain of the requested records; that counsel was operating under a conflict of interest in that he was responsible as counsel for respondents’ malfeasance; and that he was therefore demanding that the records be sent to a copy service designated by him.'” Much wrangling ensued, and the matter wound up in court.  There, the court held that each of the school district’s actions that Fenstermaker challenged was “supported by statute and administrative rulings” and that Fenstermaker “cited no authority to the contrary.” It deemed the matter frivolous, and the court not only awarded statutory costs to the school district but also ordered Fenstermaker to pay costs “for the actual expenses reasonably incurred and reasonable attorney’s fees incurred in defending this proceeding.”

And that was against a school district in a case with no national implications or coverage. So buckle up, it’s going to be a bumpy show trial, I have a feeling.

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