Shortly after Eric Holder announced the KSM Five would be tried in federal court in New York, I predicted it would become a circus and in the center ring the defendants would use this opportunity to turn the tables and put the United States on trial. Of course, I was not the only one who made this prediction, but I’m glad to know that I was correct.

The five men facing trial in the Sept. 11 attacks will plead not guilty so that they can air their criticisms of U.S. foreign policy, the lawyer for one of the defendants said Sunday.

Scott Fenstermaker, the lawyer for accused terrorist Ali Abd al-Aziz Ali, said the men would not deny their role in the 2001 attacks but “would explain what happened and why they did it.”

There you have it…just as predicted. But who is Scott Fenstermaker? I did a bit of digging and found this on his firm’s website:

Scott L. Fenstermaker
Member
Email: scott@fenstermakerlaw.com

Practice Areas: Criminal Litigation; Tax Litigation.

Admitted: 1993, New York; 1994, U.S. District Court, Southern and Eastern Districts of New York; 1996, U.S. Court of Appeals, Second Circuit; 2006, United States Supreme Court

Law School: Harvard Law School, J.D., cum laude, 1992; New York University Law School, LL.M. in Taxation, 1997

College: United States Air Force Academy, B.S., with distinction, 1984

Member: American Bar Association (past Chair, Subcommittee on Federal Sentencing, Tax Section); National Association of Criminal Defense Attorneys; pool of Qualified Civilian Defense Counsel.

Biography: Former Assistant District Attorney, New York County. Member, Practitioner’s Advisory Group, Federal Sentencing Commission.

Born: Pittsburgh, Pennsylvania, May 1, 1962

You might be wondering what it means to be a member of the “pool of Qualified Civilian Defense Counsel.” This is explained elsewhere on his site:

Mr. Fenstermaker is…authorized to represent the detainees at Guantanamo Bay, Cuba before the Military Commissions being conducted at Guantanamo Bay. He has a secret security clearance and is available to represent clients involved in national security-related issues. Mr. Fenstermaker has experience litigating pursuant to the Uniform Code of Military Justice and is prepared to assist service members confronted with issues within the military criminal justice system.

What I’m especially curious to know: is Fenstermaker being paid for his work on this trial or is he doing it pro bono? If he is being paid, who is paying him?I’m inclined to believe he’s doing it gratis - the publicity alone is as valuable as gold.

While I’m troubled that Fenstermaker took the case (given that these men are avowed terrorists who freely admitted their guilt and even requested execution, I would have declined to represent them) I’m not entirely surprised. I understand that in a civilian court of law the accused has a right to legal counsel and I would deny no accused man - regardless of his crime or the empirical certainty of his guilt - an advocate for his defense.

I understand what is meant by “advocate for his defense” and I’m just as sure that many people today (including many defense attorneys) misunderstand that role.

Contrary to what you might think, the job of the advocate for the defense is not to prove that his client is innocent, but to challenge the prosecution’s case and create a reasonable doubt in the mind of the jury with regard to its strength and veracity. Remember: the burden of proof in our system of justice is on the state, not the defendant. When the state indicts and tries a person for committing a crime or crimes, it must prove the case for its prosecution and does this by presenting evidence, witnesses, etc.

If the defense has evidence that can exonerate the defendant it will certainly present this, but such evidence does not exist, the defense is still obligated to challenge the veracity of the prosecution’s evidence and witnesses.

As airtight as the prosecution’s case sometimes appears, we must be careful not to be lulled into a sense of false security; it is the job of the defense advocate to find any weaknesses in the prosecution’s case and exploit them - not so much for the sake of the defendant’s acquittal, but for the sake of ensuring that justice has been properly meted out and that only the truly guilty are convicted.

Having said that, I see the logic of Fenstermaker’s defense strategy. Admittedly, it’s a shaky and desperate one that attempts to turn the tables on the prosecution. Assuming the judge chosen to hear the case will tolerate this approach and further assuming the jury pool contains at least one individual who can be swayed by the defendant’s rhetoric, a hung jury is the best that Fenstermaker can hope for. At worst, the jury will be repelled by what they hear and find the defendant guilty.

The U.S. Justice Department announced earlier this month that Ali and four other men accused of murdering nearly 3,000 people in the deadliest terrorist attack in the U.S. will face a civilian federal trial just blocks from the site of the destroyed World Trade Center.

Ali, also known as Ammar al-Baluchi, is a nephew of professed 9/11 mastermind Khalid Sheikh Mohammed.

Mohammed, Ali and the others will explain “their assessment of American foreign policy,” Fenstermaker said.

“Their assessment is negative,” he said.

We never saw that coming, did we? Negative, you say? Who’d ever a thunk it?

Fenstermaker met with Ali last week at the U.S. prison at Guantanamo Bay in Cuba. He has not spoken with the others but said the men have discussed the trial among themselves.

Fenstermaker was first quoted in The New York Times in Sunday’s editions.

Critics of Attorney General Eric Holder’s decision to try the men in a New York City civilian courthouse have warned that the trial would provide the defendants with a propaganda platform.

That would be me and a great many other people who are intelligent, educated and rational. We are the ones who actually study history and make an effort to benefit from the lessons it teaches us. We are the ones who understand the mindset of the creatures - both domestic and foreign-born - trying to destroy this nation. Hence a prediction based less in clairvoyance than in a solid understanding of both history and human nature.

Dean Boyd, a spokesman for the Department of Justice, said Sunday that while the men may attempt to use the trial to express their views, “we have full confidence in the ability of the courts and in particular the federal judge who may preside over the trial to ensure that the proceeding is conducted appropriately and with minimal disruption, as federal courts have done in the past.”

Will it be anything like Judge Ito’s court during the O.J. Simpson trial? What a model of procedural decorum that trial was. We all know how well THAT turned out, don’t we? Yes, I realize the Simpson trial was not held in a federal court. It doesn’t matter: federal judges are no less human and therefore suffer from the same character flaws and biases as state court judges. If anything, political biases may be more pronounced in federal judges than in state judges since the former are nominated by the President and confirmed by the U.S. Senate.

The judge for a particular trial is chosen by random lottery, which means there is roughly a 50/50 chance the judge presiding over the KSM Five trial will be a Clinton or (God forbid) Carter appointee - and that assumes the political make up of the total number of judges assigned to that court is evenly split between activists and constructionists.

Last week, the Senate Judiciary Committee questioned Holder for hours about his decision to send the five 9/11 suspects to New York for trial.

Critics of Holder’s decision - mostly Republicans - argued the trial will give Mohammed and his co-defendants a world stage to spout hateful rhetoric. Holder said such concerns are misplaced, and any pronouncements by the suspects would only make them look worse.

Good grief. It reminds me of liberal school teachers who deal with schoolyard bully issues by counseling the victim to remember that the bully is only making himself look bad in other people’s eyes.

“I have every confidence that the nation and the world will see him for the coward that he is,” Holder told the committee. “I’m not scared of what Khalid Sheikh Mohammed has to say at trial - and no one else needs to be, either.”

Perhaps the nation will, but the world? Not so much - especially the Muslim world. If, heaven forbid, this trial is broadcast, the nightly satellite feeds will make their way into countless terrorist training and propaganda videos. Far from appearing like coward, KSM and his crew will look like heroes and their stirring condemnation of the United States will have the effect of gasoline on an open fire.

The attorney general said he does not believe holding the trial in New York - at a federal courthouse that has seen a number of high-profile terrorism trials in recent decades - will increase the risk of terror attacks there.

He should pray - not in a public place, of course - that he’s right. Because if another attack occurs in New York and innocent people perish, their blood will be on Holder’s hands and all of Neptune’s oceans will not be able to wash it off.