9-23-2013By Daphne Eviatar
Law and Security Program
Witnesses provided more details of the Defense Department’s computer mess-ups and confidentiality breaches in the 9/11 hearings on Friday, and defense lawyers renewed their request to delay the hearings until those problems could be resolved.
Defense lawyers have also asked the judge not to hold monthly hearings at Guantanamo so they have time to investigate their clients’ cases, which require extensive foreign travel.
Lengthy testimony from information technology experts serving the Office of the Secretary of Defense revealed how seven gigabytes of defense material was lost, including 57 investigative files that still have not been retrieved, and why e-mails sent by defense team members continue to disappear without explanation.
A senior Pentagon IT official also could not explain why a defense team’s privileged files were searched or who searched them.
On Thursday, Scott Parr, Chief of the Office of Military Commissions IT services,
testified that for about four months, no one backed up the computer servers used by defense counsel. At the same time, Pentagon engineers made a series of mistakes - including “dirty shutdowns” of the system – that led to the loss of a large volume of documents. Because the files hadn’t been backed up, many of the documents lost were irretrievable.
On Friday, Ronald Bechtold, Chief Information Office for the Office of the Secretary of Defense, blamed faulty computer hardware. But he also explained technicians had used a software program provided but not “approved” by Microsoft that retrieved some of the files, but not the still-missing seven gigabytes.
“We had some hardware that was failing,” Bechtold testified. “It was intermittent. That’s a problem if you’re running an IT shop.”
Defense counsel have been requesting a new secure computer system since April, when the chief defense counsel told them to they stop using the Defense Department’s system. She issued that directive after discovering that defense lawyers’ e-mails were searchable by other government officials, defense files had shown up on the computer of a government employee at another agency, and regular Pentagon computer monitoring had led to government investigators tracking defense team members’ Internet searches. Defense lawyers say they cannot ethically continue to represent their clients in this highly complex criminal matter until they can assure the confidentiality of their communications.
On Friday, Bechtold testified that he did not know who had searched the defense team’s files. He said defense lawyers could use encryption technology until the system is fixed, but acknowledged that not all information can be encrypted and that encryption significantly slows down the system.
He also said he knows some defense team members have had problems sending and receiving e-mail due to a massive “migration” of the Defense Department’s e-mail from one server to another. One defense team member lost about 2500 of her e-mails as a result. The e-mails of military members of the defense teams were not supposed to move, but those with the Army ran into problems.
“I made a mistake,” Bechtold admitted Friday morning.
Witnesses have testified this week that two options for fixing the system have been proposed. One, which would create a separate server for the defense, would cost about $1 million more, said Bechtold, adding, “I figure we’ve spent that already this week.”
The government has objected to putting the case on hold until the computer problems can be solved. It’s also objected to defense lawyers’ request to hold week-long hearings at Guantanamo Bay no more than every other month.
Lately the judge, Army Col. James Pohl, has scheduled monthly hearings in an effort to speed up the case. But on Friday, lawyers for Khalid Sheikh Mohammed and Walid bin Attash objected that the schedule was making it impossible for them to investigate their clients’ defenses. The defendants are all from other countries, and the lawyers say investigating the charges of their clients’ involvement in a complex international conspiracy requires extensive travel. Each trip they take, however, must be approved in advance by the Convening Authority of the military commissions, which takes about 60 days, said Cheryl Bormann, who represents bin Attash. The lawyers also need to wait for government funding and visas.
“We are charged with a gargantuan effort of investigating guilt, innocence and abatement, which involves a gargantuan amount of work and a gargantuan amount of travel,” said Bormann. She also complained she didn’t have sufficient paralegal staff to help her, and asked if defense counsel could have a brief private meeting with the judge to explain the exact nature of their obligations and time pressures.
Brigadier General Martins, the government’s lead prosecutor, objected to any delays, including one caused by such a meeting.
But David Nevins, representing Khalid Sheikh Mohammed, was insistent. “Holding hearings every month makes it as a practical matter impossible to do the behind the scenes work we have to do,” he said, citing the practical difficulties of having to travel to Guantanamo to meet with their clients and attend hearings and the difficulties of working in the “unplowed ground” of the military commissions. Because the military commissions are a new systemcreated in 2009, the relevant law and rules governing them remain unclear.
The court should not be “speeding through the proceedings,” said Nevin, adding that the government waited ten years after the September 11 terrorist attacks to bring the case.
“I’m telling you we cannot practice law under the way the system operates now,” he said at the end of a long week of testimony and argument about computer problems — just one of the 45 legal motions that were scheduled to be heard. “If we’re going to move forward with this case, then we should do it right.”