10-2-2013By Daphne Eviatar
Law and Security
A little government shut-down wasn’t going to deter Army Colonel James Pohl. While most federal employees were furloughed, the judge presiding over the 9/11 case at the Guantanamo Bay military commissions on Tuesday insisted the pre-trial hearings continue apace despite Pentagon computer malfunctions that have compromised defense lawyers’ confidentiality obligations and drastically compounded the difficulties involved in preparing their clients’ defenses.
Just two weeks ago, the Chief Defense Counsel for the Office of Military Commissionstestified at the Guantanamo Bay courtroom that since January, defense lawyers’ computer files and e-mails had been searched by unknown U.S. government officials, their internet searches had been tracked and hundreds of thousands of computer files and e-mail messages had mysteriously disappeared. Although some have since been retrieved, about seven gigabytes of investigative case files remain missing. Lawyers still don’t know whether their e-mails are being sent, or even if they are receiving case-related communications from the judge.
“We had a large percentage of people who had incomplete access to virtually everything,” Air Force Col. Karen Mayberry testified in September about the computer problems. “Uncertainty was the rule of the day.”
In April, concerned that defense lawyers were unable to fulfill their ethical obligations to their clients to keep their communications confidential, Mayberry instructed her legal teams not to use the Pentagon-provided computer system.
As a result, the commission defense attorneys have had to practice law through a bizarrely cumbersome process of hand-writing legal documents, sending confidential e-mails on their personal laptops using an unsecured public wifi system, and never knowing whether messages or documents sent to one another or even to the military commission judiciary had been received.
When the Chief Information Officer for the Secretary of Defense, Ronald Bechtold, took the witness stand in September, he confirmed that defense counsel’s Pentagon-supplied computers were routinely monitored but could not explain why government officials had personally tracked the internet searches of one of the defense teams, and searched the computer files of another.
Responding to a question from Navy Commander Walter Ruiz, representing Mustafa al Hawsawi, about who had searched his defense team’s files, Bechtold said: “It looked like some outside group, outside of the organic IT staff, had searched certainly a folder or probably several folders… I’m really troubled by that, because I don’t believe that should have ever happened under any scenario.”
Defense lawyers had asked the judge to put the 9/11 case on hold until the Pentagon could provide a secure computer system, which experts testified would take several months.
Despite the extensive problems revealed at the last hearing, and the fact that the government didn’t even bring this case until a decade after the September 11, 2001 terrorist attacks, Judge Pohl on Tuesday refused to delay the case any further.
As always with the military commissions, his opinion was not made publicly available when he issued it. Documents in the case usually aren’t available for public viewing for several weeks, until after they’ve been reviewed by a government official for classified material.
In a press release yesterday, James Connell, defense attorney for Ammar al Baluchi, said “very little has actually changed” with regard to the computer system. “There are hopes that the system will improve in the future, but for now, the IT problems still handicap the defense.”
Hearings are scheduled to resume in the case on October 22.