The long-troubled military trials at Guantanamo Bay were hit by revelations earlier this year that a secret censor had the ability to cut off courtroom proceedings, and that there were listening devices disguised as smoke detectors in attorney-client meeting rooms.
Now, another potential instance of compromised confidentiality at the military commissions has emerged: Defense attorneys say somebody has accessed their email and servers.
“Defense emails have ended up being provided to the prosecution, material has disappeared off the defense server, and sometimes reappeared, in different formats, or with different names,” said Rick Kammen, a lawyer for Abd Al Rahim Al Nashiri, who is accused of plotting the 2000 attack on the U.S.S. Cole.
The lawyers say they don’t know exactly who is accessing their communications. And it’s not yet clear whether the emails were intentionally grabbed or were scooped up mistakenly due to technical or procedural errors.
Either way, the lawyers are concerned.
In response to the apparent breaches, the military’s chief defense counsel ordered defense lawyers to stop using email for privileged or confidential communications.
“This follows on the heels of the seizure of over 500,000 e-mail containing attorney-client privileged communications as well as the loss of significant amount of defense work-product contained in shared folders,” Commander Walter Ruiz, one of the military defense counsels, said in an email.
The search of thousands of emails was revealed by the prosecution, attorneys say.
“The searches on their face looked to be fairly benign,” Kammen said. The defense emails turned up when prosecutors requested a search of prosecutors’ own emails. “The people who were doing the searches ended up providing all manner of defense material as well.” It’s not clear what department, agency, or office did the search.
It is not possible to corroborate the attorneys’ accounts because the full documents are undergoing security review, and are not yet public.
The Pentagon declined to comment, citing the ongoing trial.
In recent months, defense lawyers also realized that files were missing from their shared and personal servers. There is no evidence that the missing files are connected to the email searches.
“The main thing is that the integrity of the system as the whole is in very serious question,” said Commander Ruiz. The order to stop using servers and emails, “essentially cripples our ability to operate,” he said.
Hearings in Nashiri’s case were scheduled for next week, but in response to a motion from his lawyers, military judge James Pohlhas delayed the hearings for two months. Yesterday, lawyers for the 9/11 plotters also filed a motion regarding “Information Technology Corruption and Loss of Relevant Defense Files.”
These new concerns are the latest example of irregularities of military commissions overshadowing the actual facts of the cases brought before them. Pretrial hearings have been consumed by issues such as whether defendants can wear camouflage to court (they can), when mail can be read, and what exactly lawyers can discuss with or send their clients. The prosecution has also tried to prohibit “informational contraband,” including any material on “current political or military events in any country; historical perspectives or discussions on jihadist activities.” Copies of the 9/11 Commission Report and the memoirs of an FBI agent have been taken from defendants’ cells.
In cases before the commissions, defendants’ interactions with their attorneys are subject to strict controls. Orders aimed at protecting classified information govern most proceedings and lawyers have limited access to their clients. Defense lawyerspreviously had to get a security officer’s approval to use even mundane information from defendants. That requirement was loosened a bit, but details of the defendants’ time in CIA custody – including their own accounts of being tortured – are automatically classified.
There have been seven convictions under the military commissions. Another seven detainees are currently facing charges, and 24 others may yet be prosecuted. The government has deemed 46 detainees simply too dangerous to release but doesn’t plan to try them.
The Obama administration initially sought to try Khalid Sheikh Mohammed and the four other alleged 9/11 plotters in federal court in Manhattan, but reversed its position after heated opposition from Congress and New York City officials.
Though President Obama has thus far failed to fulfill his pledge to close Guantanamo, no one has been brought to the prison under the Obama administration. In recent months, a string of terror suspects have been extradited from foreign countries to face charges in U.S. courts.
In a statement, Pentagon spokesman Lt. Col. Todd Breasseale disputed defense attorneys’ characterizations of the email and data breach described below, saying that none of the government prosecutors “saw the content of any privileged communications.”
The search was conducted by the Pentagon’s IT department. Breasseale said the reason prosecution ended up with defense emails at all was likely because a security officer “miscommunicated the search parameters.” As soon as one prosecutor “realized the search results included privileged material, the searches completely ceased, and, upon agreement of defense counsel … the IT department deleted all the search results from the two searches,” Breasseale said.
Statement emailed to reporters by Pentagon spokesman Lt. Col. Todd Breasseale:
Perhaps the biggest myth in the current reporting is that US government prosecutors saw defense e-mails.
I can tell you unequivocally that NO prosecutor and no member of the privilege review team saw the content of any privileged communications. Only one prosecutor and only one member of the privilege review team each actually saw a single defense communication. To be clear: there were a series of searches for a particular piece of information in which both prosecution and defense took part. One prosecutor saw the email when reviewing results generated from the first search. The privilege-review attorney saw the email when reviewing the results generated from the second search. However, in both cases, they only saw the “To,” “From,” and “CC” lines, and the one prosecutor saw the opening salutation of the email (it was “team,” or some similar word) and saw NOTHING ELSE. As soon as that prosecutor realized the search results included privileged material, the searches completely ceased, and, upon agreement of defense counsel in Qosi, the IT department deleted all the search results from the two searches.
But more generally – though terrifically more importantly – the attorney-client privilege ranks among the oldest and most established evidentiary privileges known to our law, and we take this seriously. The fact that this arose from a defense-initiated petition, was promptly dealt with due to a PROSECUTION report, and that it is receiving appropriate focus to identify corrective measures, confirms that. All attorneys, including both our professional corps of defense and prosecuting attorneys, are duty-bound to safeguard privileged material. Attorneys are obligated to scrupulously avoid reviewing the other side’s privileged material. Specifically, the attorneys in the office of the chief prosecutor have demonstrated their respect for the attorney-client privilege and they diligently work to protect it.
In any complex litigation, privileged material sometimes accidentally ends up in the wrong place – from both ‘sides.’ For example, just last week, a member of the defense counsel mistakenly sent to a number of prosecutors an ex parte filing that was meant to be sent only to the court. Defense counsel notified the prosecution, and actions were immediately taken to protect the confidentiality of the filing. This sort of human error is unfortunate but not out of the ordinary in complex litigation in both civilian and military systems, and both sides work together to resolve any issues that arise.
Meanwhile, encryption–which is the recommended means of communication–would have precluded even this inadvertent and fully contained disclosure that involved no content.
So, if you’ll indulge me, I’d like to offer some point-for-point responses to some of the growing myths that are out there.
“[I]t was revealed that hundreds of thousands of defense e-mails were turned over to the prosecution.”
“In the latest controversy, the prosecution gained access to about 540,000 emails from defense teams.”
— This is patently FALSE. **The Enterprise Information Technology Services Directorate (EITSD) did not turn over any of the those emails to any attorneys—prosecution or otherwise. IT has maintained possession of these emails and the prosecution attorneys do not have access to them. Because no one has reviewed these emails, we simply do not know whether any of the emails included any defense emails.
“Defense attorneys said military IT personnel unsuccessfully tried to refine their search parameters two more times—and in each case discovered more confidential material.”
— The court wanted communications between the prosecution and the defense regarding waiver of appellate review. The office of the Chief Prosecutor (OMC-P) asked their IT professional, he relayed to them that they had to go through OMC Security Department (now part of Washington Headquarters Services), and OMC Security relayed that they would have to contact the search technicians with OMC-P’s search request. OMC-P gave the search parameters to OMC Security (including the names of the relevant prosecutors and defense attorneys, identifying who was a prosecutor and who was a defense attorney), and OMC Security was supposed to properly communicate them to the search technicians. The representative from OMC-Security miscommunicated the search parameters, which we asses is the likely reason it caused OMC-P to receive the privileged communications which, again, were never read by the prosecutors.
— The IT search that generated 540,000 emails was the third search. Again: no one has reviewed these emails, so we do not know if they include confidential material. After the first search, prosecutors directed IT to deliver any search results to a privilege review team composed of attorneys from the DOD OGC who had no involvement in the Qosi case before the United States Court of Military Commission Review or the Cole and 9/11 trials. IT has deleted the search results from the first two searches.
— Finally, the Office of Military Commissions (OMC), in toto – including both defense and prosecution – suffered from a nearly catastrophic server ‘crash,’ that affected not only the main server, but both of its back-up servers. The server ‘crash,’ coupled with the satellite latency issues that exist between computers here in the US and those at Guantanamo Bay, have caused losses of indiscriminate data across the OMC spectrum. Of the nearly 400 gb of data originally ‘lost,’ there remain some 7 gb yet to be accounted for. To be sure, this data loss – which affects the whole of OMC – is indeed indiscriminate and appears to be mostly affecting updates to pre-existing documents and new documents that were saved to the server and not e-mailed.
**Breasseale’s statement originally said that, “no one knows from where this “540k” number comes and I would direct you to the defense counsel who allege this number.” In a follow-up, Breasseale corrected that to say that “the 540k number comes from one of the prosecution’s pleadings.