Confronted with claims that a portion of the Pentagon computer system used by defense lawyers is not secure, the chief Guantánamo judge Thursday postponed until June next week’s hearings in an ongoing death penalty trial at the war court in Cuba.
Army Col. James L. Pohl, the judge, agreed to delay the proceedings in the USS Cole conspiracy trial “in the interest of justice” hours after the chief defense counsel, Air Force Col. Karen Mayberry, ordered all war court defense counsels to stop using their computers for confidential email and court documents.
At issue has been the disappearance recently of certain defense documents off what was thought to be a secure hard drive at the Office of Military Commissions. Technicians were creating a mirror of the war court’s server, so lawyers could work on their documents between the Pentagon region and the crude war court compound at the remote Navy base in Cuba, and documents on both the Cole and Sept. 11 death penalty cases simply vanished.
“I honestly don’t know how bad it is. All I know is that the information systems have been impacted, corrupted, lost,” Mayberry said, describing the lost work product by 9/11 defense lawyers as of a greater magnitude than the Cole case.
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Plus, the information was on a server that held both defense and prosecution documents, Mayberry said, something that in light of the problems can no longer be tolerated. Had Pohl not issued the delay, she added, she was prepared to ask Secretary of Defense Chuck Hagel to freeze the commissions.
The postponement is the latest blow to the Obama administration’s version of the war court that President George W. Bush created in the aftermath of the Sept. 11 attacks. The last round of hearings revealed other confidentiality issues, including an eavesdropping system hidden in what looked like a smoke detector at the attorney-client meeting rooms at the prison camps and the existence of an intelligence censor who until recently had the capability to mute conversation at Guantánamo’s maximum-security courtroom.
No evidence had been uncovered that the problem was a result of an unseen intelligence agency interference, Mayberry said, adding “I suppose anything’s possible. I don’t have any reason to think that’s what’s going on. But I know that we didn’t have any reason to think that smoke detectors weren’t smoke detectors.”
Mayberry said she was insisting on the creation of a separate defense-controlled computer system to assure confidentiality before the hearings could proceed. “I’m not going back to the same broken system,” she said by “putting a Band-Aid on it so we’ll bleed somewhere else.”
The judge had yet to rule on a similar request for postponement of pre-trial hearings scheduled for April 22-26 in the Sept. 11 tribunal. A 9/11 team lawyer wrote a motion by hand Thursday morning because of Mayberry’s order not to use Pentagon computers for privileged or confidential work product. Pohl gave the prosecution until Tuesday to explain how pre-trial motions could go forward in the complex conspiracy case.
“It speaks to the problem of creating a system from whole cloth,” said attorney David Nevin, defense counsel for alleged 9/11 mastermind Khalid Sheik Mohammed, discussing the confidentiality question at the Pentagon’s Office of Military Commissions.
No secure defense computers complicates “the entire ability of the defense teams to do their work and strikes at the heart of requirements for confidentiality, for protection of the attorney-client privilege.”
Richard Kammen, defense attorney for the accused Cole bomber, Abd al Rahim al Nashiri, applied for the delay Monday but the judge didn’t rule on it until after the chief defense counsel brought confidential work to a standstill in an order Wednesday night.
Kammen, from Indianapolis, said disclosure of the computer problems at the Pentagon defense office means “under my state rules it’s improper for me to communicate with people using the defense system.”
“It may be that people don’t understand the nature of the attorney-client privilege,” he said. “It may be sinister, it may not be sinister. But you can’t have a system that is accessible to people who don’t understand the nature of the privilege and then call it secure.”