A computer server crashed and programmers set the wrong search parameters in two mishaps involving Guantánamo war court files, but prosecutors did not breach defense lawyers’ confidentiality or attorney-client privilege, a Pentagon spokesman said Friday.
“No prosecutor and no member of the privilege review team saw the content of any privileged communications,” Army Lt. Col. Todd Breasseale wrote reporters.
The comments came a day after the chief war court judge, Army Col. James L. Pohl, delayed until June a hearing in the death-penalty case against a Saudi man accused of orchestrating al-Qaida’s October 2000 suicide bombing of the USS Cole warship off Yemen.
Pohl is expected to rule Wednesday on a similar request to delay hearings in the Sept. 11 conspiracy case by defense lawyers who sought a delay in a handwritten request because the Pentagon’s chief defense counsel has ordered lawyers to stop using computers for confidential work until the computer problems are resolved.
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Meantime, Breasseale disputed defense claims that the office of the war court prosecutor, Army Brig. Gen. Mark Martins, got access to 540,000 emails belonging to the defense teams. Rather, he said, computer programmers helping prosecutors comply with a court order ran a search “that generated 540,000 emails” but “no one has reviewed these emails, so we do not know if they include confidential material.”
Rather, once they realized that the search yielded too wide-ranging and potentially confidential email, the computer technicians destroyed the results.
Breasseale separately confirmed defense claims that confidential and privileged documents disappeared from a supposedly secure Pentagon computer system. Pentagon computer technicians were trying to create a mirror copy of defense files to let lawyers work more efficiently between their Washington, D.C., offices and the war court complex in Cuba.
But the Pentagon spokesman described the losses as a system-wide problem in the Office of Military Commissions afflicting more than just defense lawyers, who were already suspicious about whether U.S. agencies have eavesdropped on their private conversations.
Both defense and prosecution material went missing in “a nearly catastrophic server crash, that affected not only the main server, but both of its back-up servers,” Breasseale said, and “caused losses of indiscriminate data across the OMC spectrum.”
The episode has provided defense attorneys with their latest opportunity to argue that the court President George W. Bush had set up after the Sept. 11 attacks is too unsettled and unreliable to carry out death-penalty prosecutions of men held for years by the CIA, and in some instances tortured.
Whether or not the prosecutors read confidential emails, according to the chief defense counsel, Air Force Col. Karen Mayberry, the latest episodes showed vulnerability in a system that requires confidentiality and protection of the attorney-client privilege. So Mayberry has asked senior Pentagon officials to establish a separate server for war court defense attorneys, to wall off her office from other government agencies, and prevent the possibility of a future breach — and ordered no privileged work be done on the Pentagon computers.
The Office of the General Counsel, where Secretary of Defense Chuck Hagel’s legal team works, has such a separate server, Mayberry said.