Chronic problems of Pentagon computer network insecurity have gotten worse in the five months since the military commissions chief defense counsel declared the system too compromised for Sept. 11 trial preparations, the counsel testified Wednesday.
Emails don’t arrive, legal motions have been stripped off electronic notices and case work that vanished has yet to be found, Col. Karen Mayberry testified in a defense bid to freeze the death-penalty proceedings until the Pentagon builds a separate, secure system for the war crimes court’s defense lawyers.
In an act of exceptional defiance in April, Mayberry, a career Air Force lawyer, directed her defense teams to keep their confidential work off the war court network. Wednesday, she testified that, after fresh failures in an email migration, it’s currently better for defense teams in the complex death-penalty case to use their home computers, private emails and coffee shop WiFi to conduct their business.
“We’ve got more issues now than we did then and we’ve resolved very little of the ones that existed at the time,” Mayberry said.
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A case prosecutor, civilian attorney Ed Ryan, noted that the Department of Defense network was good enough for the courts martial of Army Pvt. Chelsea Manning and Army Maj. Nidal Hassan, both convicted recently in separate intelligence leak and Fort Hood shooting spree cases.
Attorney David Nevin, defending the alleged 9/11 mastermind Khalid Sheik Mohammed, countered that public defenders across the country work off their own network protected from even inadvertent prosecution intrusion.
That’s what the Pentagon claims happened earlier this year when the war court prosecutor’s office instructed the Defense Department’s information technology division to search its email to comply with a court’s order — and the search delivered to the prosecution thousands of pages of defense lawyers’ privileged work product instead. Chief prosecutor Army Brig. Gen. Mark Martins says nobody read them after seeing one defense email and realizing what happened.
That’s also what happened when the war court’s technical team tried to mirror Washington-area files in a Guantánamo server — and draft motions, research notes and other case-related material vanished. In a failed bid to restore the files, defense and prosecution lawyers suddenly had access to the other side’s work.
Defense lawyers say the information technology snafus compromise their ethical obligations of confidentiality and the attorney-client privilege in the case that seeks the military execution of five men brought here by the CIA in 2006 for trial as alleged plotters of the Sept. 11, 2001 attacks that killed nearly 3,000 people.
Mayberry said she has been working with senior Pentagon officials to design a safe, separate system, but it could take 65 to 100 days to implement after the Pentagon settles on a plan and funds it.
The judge, Army Col. James Pohl, sounded dubious about the prospect of freezing the proceedings pending a fix.
He noted that he was not being asked by the government to order Mayberry’s attorney to resume doing their work on the current Pentagon computer system. Nor, he said, was he being asked to fund or choose a new email system or server.
“You want a 100 percent fail-safe system?” he asked.
Mayberry replied that the goal was to “remove the possibility of human error as much as possible.”