Prosecutors get access to defense emails

Gitmo dogged by new controversy

The Washington Post

The U.S. military justice system at Guantanamo Bay, Cuba, which has been dogged by charges of secret monitoring of proceedings and defense communications, became embroiled in a fresh controversy Thursday when it was revealed that hundreds of thousands of defense emails were turned over to the prosecution.

The breach prompted Col. Karen Mayberry, the chief military defense counsel, to order all defense lawyers with cases at Guantanamo to stop using Defense Department computer networks to transmit privileged or confidential information until the security of such communications is assured.

Army Col. James Pohl, the chief judge at Guantanamo, also ordered a two-month delay in pretrial proceedings in the military commission case against Abd al-Rahim al-Nashiri, who is accused of organizing the 2000 bombing of the USS Cole in Yemen. Defense attorneys in the trial of Khalid Sheik Mohammed, the professed mastermind of the Sept. 11, 2001, attacks, and four codefendants filed an emergency motion — via a handwritten note — seeking a similar pause in proceedings.

Pretrial hearings in both cases were scheduled to resume this month.

“Is there any security for defense attorney information?” said James Connell, attorney for Ali Abdul Aziz Ali, one of the Sept. 11 defendants. “This new disclosure is simply the latest in a series of revelations of courtroom monitoring, hidden surveillance devices and legal bin searches.”

The inappropriate transfer of the emails follows other questions about government intrusion and secrecy that have undermined the legitimacy of a judicial process that has struggled to establish itself as an effective forum for the prosecution of some terrorism cases.

In February, a military lawyer acknowledged that microphones were hidden inside devices that looked like smoke detectors in rooms used for meetings between defense counsel and their clients. The military said the listening system was not used to eavesdrop on confidential meetings and had been installed before defense lawyers started to use the rooms. The government subsequently said it tore out the wiring.

That same month, Pohl learned that the soundproofed courtroom at Guantanamo Bay was wired with a “kill-switch” that allowed an unknown government entity, believed to be the CIA, to cut audio of the trial to the public gallery. Pohl ruled that in the future only he could turn off the audio to protect classified information. But defense attorneys questioned whether the audio in the courtroom had been manipulated to allow for the government’s monitoring of attorney-client conversations.

In the latest controversy, the prosecution received about 540,000 emails from defense teams. It’s not clear which cases or lawyers the emails concerned. A Pentagon spokesman declined comment, citing ongoing litigation.

Defense lawyers said prosecutors told them that they stopped looking at the emails as soon as they realized they contained confidential defense information.

The mishandling of the emails was detected when IT specialists conducted a search on prosecutors’ behalf in a particular case in the government’s computer system. When they did so, they came across not only the emails they were seeking but also emails between defense lawyers.

Defense attorneys said military IT personnel tried and failed to refine their search parameters two more times — and in each case discovered more confidential defense material.

In a separate controversy, defense counsel recently complained that huge volumes of work product was lost when the Defense Department attempted to upgrade its network and mirror at Guantanamo Bay the same computer system available to defense attorneys in the Washington area.

“Entire files, months of work was just gone,” said navy Cmdr. Stephen Reyes, a lawyer for al-Nashiri. “I have no evidence of any nefarious conduct, but it demonstrates again that we don’t have confidence that our files and communications are secure.”