9-18-2013By Daphne Eviatar
Law and Security Program
In testimony that revealed one shocking level of incompetence after another, the Chief Defense Counsel for the Guantanamo military commissions described Wednesday how Pentagon computer problems led to the loss of hundreds of thousands of defense team files, the disappearance of innumerable defense counsel e-mail messages, and the search of defense data, communications and internet usage by government officials who were neither authorized to see defense materials nor required to protect defense privileges.
Air Force Col. Karen Mayberry, testifying in full uniform, at times looked almost embarrassed responding to questions from defense lawyers that verified the problems they’d been complaining to the military commissions about for months. But she confirmed that while she’d been trying to work with computer experts at the Office of the Secretary of Defense since December, none of the problems had been solved. On the contrary, she testified, since July, they’d only gotten worse.
Members of the Army on defense teams “stopped getting any email,” testified Mayberry. “E-mails sent from our office to other components of OMC [Office of Military Commissions] were not going. Most of the time we got no notice or bounce-back message. Folks were hitting ‘send,’ thinking e-mails went through, and they weren’t. Sometimes e-mails went through, but the attachments were stripped. In other instances, e-mails were not going anywhere.”
Mayberry testified she learned defense counsel were not receiving e-mails from other military commissions offices, including from the judge’s chambers. Civilian members of defense teams “weren’t getting emails at all.” There were “multiple issues affecting different people differently and oftentimes we didn’t know what we didn’t know.”
It didn’t help when she received a directive from the Information Technology office to “tell us what emails you’re not getting.”
“I don’t know unless someone tells me something I haven’t received,” Mayberry said.
The e-mail problems compounded the problems of lost files Mayberry and her defense teams had been contending with since January, she testified.
The problem started after she was informed, shortly before Christmas of last year, that the Pentagon computer office was going to “replicate” all of the lawyers’ files, located in two computer drives, so they’d have a complete set of documents on their computers at Guantanamo Bay.
Beginning in January in Washington, “some people had lost access to the drives entirely. They did not appear on their computers when they logged on. Others had access to the drives but what was on them was incomplete.”
But the problems didn’t all happen at once. “A variety of people were affected each day. It’s not like it all happened that first Monday. Every day was a different consequence. Some people who didn’t have access one day would have access the next,” she said. “It was a very fluid process. Each individual was impacted individually and distinctly.”
A computer drive from Army Major Jason Wright, a lawyer representing Khalid Sheikh Mohammed, for example, was mapped to someone’s computer in a completely different agency, Mayberry confirmed, responding to questioning from Mohammed’s lead attorney David Nevin.
“So all of a sudden someone in a completely different agency is turning on his or her computer and seeing Major Wright’s documents?” asked Nevin.
“Yes,” said Mayberry.
Mayberry testified she was repeatedly told repairs were being made, beginning last winter, but she saw no signs of them. Some attorneys had their computer files, but couldn’t move or edit them. When Mayberry sought an update on the repairs, she was told “the O and H drives” used by the defense lawyers “have tanked again.”
In February, while hearings in the 9/11 case were ongoing at Guantanamo, she was told that “restoration efforts” were taking place, but the IT office was “going alphabetically” through the military commissions employees. Lawyers with active commission cases were not given priority.
When restoration did happen, Mayberry testified, the files were sometimes replaced with much older versions, so months of work was lost.
“Over 85-90 percent” of defense staff had problems, Mayberry testified. “We had a large percentage of people who had incomplete access to virtually everything. Uncertainty was the rule of the day. Every day it was a question of who will be restored, what they might have, and who might fall off the other end of the spectrum… we were going in circles.”
All the while, she said, some of the government’s computer experts were still insisting no files had been lost. Eventually, a software comparison of the files that existed on Dec. 28, 2012 and those existing on June 10, 2013 revealed that “hundreds of thousands” were missing. That software comparison did not even include many documents that existed on December 28, Mayberry learned later, so it understated the number of missing files.
Mayberry testified she eventually learned a Pentagon computer office was authorized to conduct searches of all documents in the system, including defense documents. Prosecutors in another military commission case had requested a search that had turned up e-mails between defense counsel. The prosecutor alerted the court.
At that point, “I had severe concerns about the integrity and the security of the information we were using and saving on the network,” Mayberry testified.
On April 10, she issued a directive to all military commission defense personnel that no one in the Office of the Chief Defense Counsel “was to use the network system for creation or storage of privileged information from that day forward.”
“I had spent a considerable amount of time looking at the ethical responsibilities of counsel, and of myself,” she explained. “I was aware of our obligation to protect the confidentiality of materials, both attorney-client work product and attorney work product. I no longer had confidence in the system we were using, that it could adequately protect that material. And ethically we had to stop using that material.”
As a result, she said, it now takes defense counsel 3-4 times longer to do ordinary work on their cases – and that’s only if they’re all located in the government offices in Washington, D.C.. For the many located elsewhere – Nevin, for example, is located in Boise, Idaho – ordinary tasks take much longer.
Mayberry also testified to three instances when she learned that members of defense teams had been investigated due to their internet searches on Pentagon computers. All Pentagon computers are monitored, she said, and those involved in that monitoring are not authorized to view defense materials and have not signed nondisclosure agreements to protect against their release.
More than nine months later, Mayberry testified, the problems continue. “Nothing has improved in that system since the time I issued the order,” she testified Wednesday. “In fact, we have more issues now than we did then.”
“I can’t allow that system to be used as the means to protect our privileged communication,” she explained. “The rules require us to use reasonable methods . . . and it was my determination that the network did not provide reasonable security.”
Mayberry confirmed in later testimony that in the civilian federal court system, the Office of Federal Defenders uses a separate computer system that is not searchable by the Department of Justice or any other federal agency.
Defense lawyers have asked Judge Pohl to delay the case until a separate secure computer system is made available for use by military commission defense counsel.
On cross-examination, prosecutor Ed Ryan tried to suggest that Mayberry’s motive for issuing her directive was merely to delay the case, which Mayberry denied.
Nevin responded by asking Mayberry if she was aware that his clients were “tortured” in CIA custody for three and a half years before the government ever even brought them to Guantanamo. They were not formally charged in this military commission until 2012, more than a decade after the September 11 terrorist attacks.
Responding to an objection on grounds of relevance, Nevin told Judge Pohl that it’s disingenuous for prosecutors to complain now about a defense request to delay this case for a few months when “99% of the delays in this case have been due to the prosecution.”