June 11 Session #2: Who Gets to Talk about IT Issues

The in-court audio gadgets having been satisfactorily adjusted, the hearing picks up again.  Some more odds and ends noted for the record: the court raises the recent Rule 706 examination requested by the prosecution.  It has been completed, and a summary of it unsealed pursuant to defense request.  And AE118, regarding the use of belly chains, has been mooted.  The chains are no longer used as a matter of policy, Kammen says.

That brings us to voluntariness, and a pending government motion (AE99D) for the court to review with Al-Nashiri certain matters that he missed during previous sessions.  The defense doesn’t oppose such a colloquy---but, Kammen adds, then-prevailing rules called for a presence waiver to be valid for each day Al-Nashiri was away.  In any event, the commission observes that three sessions, in July and October, were held.  When asked, Al-Nashiri affirms that he voluntarily chose not to appear for those.  Furthermore, he had the opportunity to discuss the missed proceedings with counsel.  Economizing, Judge Pohl then advises the accused once more of his presence and attendance rights as to this and future sessions.  Does Al-Nashiri understand these?  Yep.

The defense is keen to talk witnesses, with respect to what Kammen calls the case’s “IT issues.”  The underlying motion here is AE153, a prior request to abate proceedings in light of possible monitoring of defense communications.  The court has partially resolved the defense’s witness requests here, but Kammen isn’t clear why the military judge denied some of them: did the denial go to the judge’s authority, or to a determination about relevance?  Judge Pohl says his concern, so far as concerned the witnesses in question (the Chief Defense Counsel and her Deputy) had to do with privileged information.  The sought people might have conflicts as between various commission accused, the judge explains.  In any case, Kammen emphasizes that the OCDC witnesses, and another one, are important to his position here.  And both could testify in open session, no problem.  So what’s the factual predicate you want to establish, asks the Commission.  Kammen summarizes: the first issue for him is the loss of six gigabytes of defense information from computer servers linked between Guantanamo and D.C.

Prosecutor Andrea Lockhart interrupts Kammen's technically-flavored explanation, doubting its utility; the court sees its usefulness, however, given Judge Pohl's apparent goal of sorting between disputed and undisputed facts.  The latter, he says, don’t require witnesses.  He turns back to Kammen, who ticks off the two other factual predicates he plans to prove with his witnesses: one has to do with the “Al-Qosi issue,” that is, the disclosure of defense communications to prosecutors by court personnel.  Finally, there’s  intermittent monitoring of defense communications by government officials.  On the latter, Kammen is especially worried, unsurprisingly, about privileged discussions.  What if the folks doing the monitoring can’t discern between a lawyer-client chat and other kinds of chats?

So who exactly does Kammen still need to resolve AE153? This takes us to a blow-by-blow comparison of witnesses whose presence has been blessed by the court, and witnesses whose presence has been rejected or deferred.  The parties review the court’s recent order, AE153M.  Among others, the defense still wants these folks who have been denied: Chief Defense Counsel Karen Mayberry and her Deputy, Bryan Broyles, along with two others.

But do we really need to hear all of this?  Here’s where we are, says Prosecutor CDR Andrea Lockhart: security personnel are right now comparing an image of defense databases, both as of December and as of now, in order to establish whether---not necessarily what---defense files have been lost.  (She certainly doesn’t accept the defense’s view that files indeed have disappeared from Al-Nashiri case folders.)  Thus far, Lockhart argues, no defense files have been lost that haven’t also been recovered. She next notes that the prosecution hasn’t been given a real picture of the defense’s problem: how can the government respond to issues it hasn’t been made aware of?  Without answering, she argues that, with respect to alleged monitoring, there’s no evidence of monitoring of defense activities in this case.  Zip.  And the defense’s sought people have nothing to say on that issue in any event, and should thus be turned away once more by Judge Pohl.

Kammen returns and wonders aloud, in a disbelieving voice: did a prosecutor just really complain about being kept in the dark about needed information?  He disputes Lockhart's premise, that events in this case can be neatly severed from other ones, wherein information was concededly compromised. If this many gigabytes of defense information somehow migrated to the prosecutors’ servers, Kammen goes on, of course we don’t know that such information came from this case---but we also don’t know that it didn’t.  The whole system is insecure.  The remedy, argues Kammen, is to abate these proceedings as well as all others.  No dice there: I won’t be abating other proceedings across the board, says Judge Pohl.  Of course Kammen doesn’t just want an abatement; he also wants an order directing prosecutors to describe search requests from administrative personnel, which might have swept up defense materials.  That seems to address both monitoring and the Al-Qosi problem, in the court’s view.  Kammen doesn’t buy this, suggesting that some Department of Defense personnel may also need training in the attorney-client privilege---so as to distinguish between a security problem and a confidential, not-to-be-heard matter.

The prosecutor stands to educate the commission about the facts on the ground, as she puts it.  By July 22, the defense will have its own email system that will only be monitored by OCDC-aligned personnel. So that’s no longer an issue.  And the Chief Defense Counsel separately has been working, with OSD, on the implementation of defense-only IT systems----ones apparently designed according to her preferences.  That seems to take care of Kammen’s main problem, at least in part.  Next Lockhart tackles the Al-Qosi problem: there isn’t one here, she says---no handing over of Al-Nashiri defense materials to our team, inadvertently or otherwise.  Lastly, she emphasizes, if any monitoring requests come through as to Al-Nashiri, policy requires the government to advise the Chief Defense Counsel before they take place.  So, she seems to say, there’s a fix in place already, or just around the corner.  And in the meantime, resources provided to the defense as of April ensure that it can robustly present Al-Nashiri's case---as illustrated by the reams of paper the defense has filed since security issues first arose.

All that’s prospective talk, to Kammen’s ears.  But he’s interested in the retrospective inquiry, and making a record of what took place already.  The system established initially is insecure, he urges, and we don’t know what the effects of that insecurity have been.  We don’t know who has what, Kammen says regarding possible monitoring. The court pushes Kammen some more about his sought witnesses.  He cannot really see the relevance of the four witnesses, save Broyles.  There's a bit more back and forth, but we can see a resolution coming.  There it is: it turns out Broyles will testify about IT issues after all.