You know something is wrong when defense lawyers have to hike to Starbucks to find Internet access they feel they can—relatively, anyway—trust. But that’s exactly what lawyers for the five men accused of plotting the September 11, 2001 attacks felt they had to do after widespread failures of the government computer network they’d been using resulted in thousands of private defense emails being handed over to the prosecution and entire files disappearing from defense team drives. That series of undeniable security breaches, they argued, made even a public Internet connection a better option than the government network.
Last week, I traveled to Guantanamo Bay as an approved observer for pre-trial hearings before military commissions where defendants in the Sept. 11 case are facing the death penalty. There I listened to testimony about a litany of technology problems plaguing Pentagon computer systems to such a degree that defense attorneys say they can no longer ethically use the system.
The problems, only the latest of many now dogging the military commissions painted a picture that should disturb anyone with an interest in these important proceedings being fair and credible. Col. Karen Mayberry, the chief defense counsel for the Office of Military Commissions, described a system failure that began, ironically, when Defense Department technicians were attempting to improve things in December by making files available to defense lawyers both while at Guantanamo and their main office in Rosslyn, Va. Mayberry testified that shortly after the first improvement attempt, some defense counsel could not access their computer drives while others found documents missing. According to David Nevin, lead counsel for Khalid Sheikh Mohammed, when members of his team regained access to their drives, they found a “modification date for dates and times” during which no defense lawyer had accessed the files. At the same time, somebody in a completely different government agency not on the defense team did have access to defense files.
There were multiple instances of data loss, including, according to Mayberry, a “catastrophic” one in February. The prosecution admitted in their briefs that at one point at least seven gigabytes of data disappeared from the system. Some of the data has since been restored, but it took months for that to happen. Cheryl Bormann, attorney for Walid bin Attash, pointed out that 57 of her investigatory files were still missing.
Further, Mayberry testified that the Pentagon had monitored internet searches by several members of the defense team (searches that can include attorney-client privileged material). In mid-April it emerged that about 540,000 defense emails had been inadvertently passed to the prosecution, though prosecutors said they did not read them.
All these problems prompted Mayberry to issue a directive in April that defense counsel stop using government computers to store and send privileged documents. She said defense counsel could not use the system while complying with their ethical duty not to breach attorney-client privilege. Defense counsel have since cobbled together a patchwork of workarounds including using removable external hard drives and private email accounts, filing handwritten motions to the court and, yes, relying on the aforementioned Starbucks wi-fi. As a result, it takes “three to four times as long to complete ordinary tasks of litigation,” Mayberry said.
Prosecutor Ed Ryan downplayed concerns, dismissively labeling the workarounds the “Starbucks system.” Even Judge James Pohl seemed to question how serious the issue was in light of broader U.S. government surveillance revelations (which were not disclosed until June, long after these problems arose). But Nevin replied: “Are we to just throw up our hands and say, well, the NSA [National Security Agency] is omnipresent and let’s forget about security at all?”
Indeed, Mayberry acknowledged that the defense’s patchwork solution was far from ideal. But, she said, it was the “least bad” option they had, and was preferable to a “network that had already proven itself to be unsafe.”
Prosecutors acknowledge that problems with the computer system exist. Their main witness last week, chief information officer for the Secretary of Defense Ronald Bechtold, called the network “unstable.” But prosecutors suggested quick fixes like encryption and non-disclosure agreements from those who have access to the system. Defense attorneys say they need a separate system, which could take months.
The problems compound those already faced by defense counsel in presenting their case before the military commissions. In February, defense attorneys discovered listening devices disguised as smoke detectors in attorney-client meeting rooms. The judge halted proceedings when a courtroom feed to the media and observers that supposedly only he could control was cut off by an unnamed U.S. agency, presumably the CIA.
If defendants had been prosecuted in federal court, there would have been little to no danger of material being lost or shared, as prosecutors and defense attorneys work on separate systems, and established rules are already in place to safeguard attorney-client communications.
Congress has barred the transfer of Guantanamo detainees to the U.S. for trial. But the Senate is set to consider a new proposal to lift those restrictions this fall. Given the monumental importance of these trials to the victims and the country, as well as the risk these problems pose to ensuring any verdicts obtained can withstand appeal, Senators would be wise to pass this new proposal.
Meanwhile, defense attorneys say they continue to work without a reliable computer network. This is far from a trifling concern – anyone who has ever sought the assistance of an attorney understands the need for a safe conduit and repository for confidential case information. The court did not always seem sensitive to these concerns, however. At one point, Judge Pohl seemed to share the prosecution’s impatience with defense requests, ruminating whether the defense was holding out for a perfect system. Mayberry denied that this was so. “What we need is a system that works,” she testified later, adding “and we don’t have that now.”