8/23 Motions Session #8: A Hot Mess

The noncontroversial dispensed with, we move to the controversial: now, the defense’s emergency motion regarding information technology matters.  Maj. Jason Wright, one of KSM’s lawyers, previews it---only a preview being appropriate now, because the matter is not yet fully briefed, and because the court desires, nevertheless, to hear about it.  Current conditions---chiefly disappearing defense work product from computer servers---Wright argues, continue to threaten privileged communications, and to impose big burdens on defense counsel.  Thus he seeks an abatement of the proceedings, pending IT and hardware fixes.

Technical difficulty of course is not new for defense counsel at Guantanamo, as Wright reminds the court at some length.  After this windup, he pitches: these days, we’re having major issues with email receipt and delivery. Emails are believed to be sent from counsel, but in fact are never delivered to intended recipients, and vice versa.  Another problem: communicating with Wright’s co-counsel, David Nevin, who lives in Idaho. That can require Wright to rummage around for open wi-fi networks in Rosslyn, Virginia, then to email Nevin, and then to return to his secure office to continue work---after, of course, receiving another email from Nevin on his Defense Department account.  This makes it awfully hard to get work done; in point of fact, Wright goes on, the Chief Defense Counsel recently called the whole situation a “hot mess.”  The defense attorney lays out a proposed remedy: creation of a stand-alone network for the defense.  Alas, setting that up could take as many as 150 days, and call for outside contractor help. Think, Wright says, of the logistical challenges associated with any government procurement effort; having those in mind, we are a long way away from a solution, he concludes.  So the relief you would like is for me to continue the hearings until the defense can use their computers, right? Judge Pohl asks, and Wright confirms, before sitting down.

The latter tags in Cheryl Bormann, counsel for Bin Attash.  She says: there are the communications roadblocks, sure, and disappearing files too.  But that’s only the half of the nightmare.  Defense counsel also are completely unable to file any substantive motions.  (The Convening Authority rebuffed Bormann’s request for help, while surmising that technical matters would be redressed by April; obviously that didn’t happen.)  Then it’s James Harrington’s turn.  Your honor can raise hell, and that will help expedite our efforts, he says. Next Lt. Col. Sterling Thomas, counsel for Al-Baluchi, pipes in, recounting his team’s apparently unsuccessful attempt to file motions electronically.  Because he doesn’t receive the expected confirmation email, Thomas consequently is restricted to hand-filing motions; otherwise he can’t tell if a paper made it to the court or not.  Naturally, he won’t be able to handle the reams of discovery that the prosecution will eventually turn over this way, either. Finally CDR Walter Ruiz, representing Al-Hawsawi, adds dramatic flourish to the defense’s complaints thus far: the state of affairs is unprecedented, he says.  He can’t find the words to describe the burdens on him and his colleagues.

Clay Trivett takes up the baton for the prosecution. In so many words, he asks: really, how did the defense manage to pull together those fancy powerpoints and zealously represent their clients for all this time, given these ostensibly insurmountable difficulties? At any rate, he says that the government is planning to file a preliminary response to Maj. Wright’s motion, which his crew will describe a way forward---though not, of course, the selection of any contractor to perform needed technology fixes.  That’s a matter for Col. Karen Mayberry, the Chief Defense Counsel.  In any event, counsel can work effectively under the status quo.  (Trivett and company had asked the defense about how current outages had affected, say, their capacity to argue purely legal motions---but got no response.)  A bit more from Trivett, and he wraps up. As he does, Cheryl Bormann is moved to correct the record. Mayberry has made her decision on IT contracting already, she says.  No hold up there. The delay, actually, is money-related.  Our office labors under severe budget constraints---ones which stand in the way of any quick solution to such pervasive technical problems.

Last but not least for the defense on this Friday afternoon, David Nevin address Trivett’s claim that the defense can so ably perform in this case, despite any technical difficulties.  My arguments would be much more effective, had I the technological resources I need, Nevin says. Indeed, such resources are standard-issue in every criminal case in the country, even the most trivial ones; the most complicated case now pending anywhere in the country (and perhaps ever brought), warrants the same.  With that, KSM’s attorney sits back down.

The Chief Prosecutor rises to emphasize the standard for abating proceedings---it’s okay to do so in “the interests of justice.”  The standard, in his view, warrants proceeding further without putting the case on hold a la Maj. Wright.  The court’s decision isn’t clear here---though Judge Pohl gestures towards additional litigation, as he assures Martins that upcoming September hearings will encompass more than AE155, as supplemented between now and then.