9/19 Session #1: Mayberry Wrap-Up

Buckle up, Smallwood CCTV fans; we’re back in session at Guantanamo’s Expeditionary Legal Complex, Courtroom 2.

Khalid Sheikh Mohammed and Walid Bin Attash are the only two accused present.  The absences of three others, as per usual, means a chat between prosecutor Robert Swann and LCDR George Massucco, the JTF Staff Judge Advocate.  The latter testifies that the absentees knowingly and intelligently waived their rights to attend the day’s fun.

Now the Chief Defense Counsel, Air Force Col. Karen Mayberry, returns to the witness stand for further rebuttal questioning, on IT issues raised by AE155---in which the defense seeks to postpone the case, because of email and network systems that insufficiently protect privileged and/or confidential defense materials.  Bin Attash’s attorney, Cheryl Bormann, questions Mayberry, among other things about the IT burdens on defense counsel who work remotely---that is, away from Mayberry’s main offices in Rosslyn, Virginia.  It seems that, unlike their colleagues, some remotely-working defense personnel do not receive laptops.  Thus they cannot access Defense Department networks.  Mayberry adds that even if such a person could connect with such networks, encryption would still preclude him or her from reading DoD email message.  Apropos of networks, what about the other military services’ IT systems?  Mayberry had met with defense lawyers in the other services---and they didn’t complain about the sorts of problems that plagued Mayberry's office, and that gave rise to her "no email/no network drives" order.  (Nor did counsel in the Manning case, with whom Mayberry is acquainted, raise such issues: no gripes about searches of privileged documents, monitoring of internet use, or handover of privileged emails there, either.)  Of course, each of her inter-services defense colleagues agreed that an experience like Mayberry’s would justify serious actions, and further that some re-tooling of other services’ IT regimes might be called for.  

Federal defenders, Mayberry adds when asked, have their own, standalone IT systems.  And those folks handled the Moussaoui case.  Bormann asks Mayberry is any other service's systems permit the Defense Department to have access to, and control over, defense files.   She doesn't believe so, and finishes her answer by returning to her leitmotif: we don’t need any heightened protections for defense material.  We just need a system that works.  And that system, Mayberry tells Bormann, must be informed by ethical requirements on defense counsel---which apply regardless of whether the case involves a terrorism conspiracy or shoplifting. Of course the defense lawyer distinguishes, as does the witness, between the former and the latter, so far as concerns discovery volume, complexity, and investigative and paperwork burden.  This case simply cannot be compared with any other tried in a military jurisdiction, in Mayberry’s view.

Oddly enough, it seems Mayberry and company found some prosecution files on their servers; upon discovery, the witness’s people disclosed the incident to the prosecution and the affected person immediately, and returned the materials in question.  It was seemingly a mistake, Mayberry says, but one caused by the shared nature of the DoD network. The witness also agrees with Bormann’s suggestion that the same could be true, now, of defense files: they might be visible to prosecutors even as we stand here. Judge Pohl asks whether any files-found-in-the-wrong-place incidents have recurred, since Mayberry instructed her subordinates to store work product on external drives, rather than the defense network.  None have, seemingly.  A bit further, and Bormann is done.

Now comes James Harrington, Learned Counsel for Ramzi Bin al-Shibh.  He asks about a few topics, including monitoring and classification issues in civilian court.  Mayberry is familiar with those, and agrees that Harrington can only access secret materials at special facilities---like at Niagara Falls Air Force Base, near his home.  What about the “Starbucks” method, to which Ryan referred?   This means the use of a network other than a DoD network, says the witness.  But the private system is the least bad option, in Mayberry’s view, given insecurities in the DoD network.  Next Harrington inquires about ethics: his ethical obligations exist, regardless of Mayberry’s instructions, according to Mayberry; her superior rank doesn’t do away with that, though counsel relying on her “no email/no network drive” order might benefit from some measure of what she calls “top cover."  Finally: did Mayberry ever talk with defense teams about using IT issues to delay the proceedings?  No, she didn’t.  (Correspondence, in which she used that word, and to which the prosecution referred yesterday, went to the possible consequences of her order---not the reasons underlying it.)

Col. Sterling Thomas, lawyer for Ammar al-Baluchi, is next.  Do external hard drives--part of the makeshift information approach devised by defense counsel, after Mayberry’s order---solve the IT insecurity problems she described earlier?  No, to the extent they are connected to networked computer, and unencrypted, says Mayberry.  For example, could a person with administrator rights observe a document open on Thomas’s networked machine, despite the external drive?  Yes, answers the witness.  The court puzzles: isn’t counsel making a choice to connect to the network?  Or is there no option but to connect to a DoD network?  It’s more complicated than that, says Mayberry: some programs are web-based, and cannot be operated without a networked machine.  Then why opt for external hard drives at all?  To prevent saved files from being lost, Mayberry tells Judge Pohl.  This went to data loss, not communications safety.  Thomas sits.

Other counsel---defense and prosecution---don’t wish to question Mayberry further.  Will there be, today or some other time, more IT evidence?  Apparently, according to KSM attorney David Nevin.  The court cautions that he will hear any needed evidence to resolve AE155---but doesn’t wish to hear, and won’t hear, anything cumulative.  Nevin’s co-counsel, Gary Sowards, proffers that the defense’s next witness, the Office of Military Commissions IT chief, will discuss possible remedies.

We’ll hear from him shortly.  Recess-time.