June 12 Session #3: Testimony on Monitoring, Part I

It’s witness time.  Bryan Broyles, Principal Deputy Chief Defense Counsel for the Military Commissions, is sworn.  We’ll hear from him, on matters relating to monitoring---in particular, AE153.

He’s been with his office since 2005.  Kammen gets the witness’s other biographical details and impressive military criminal law credentials out of the way, before turning to the sanctity (or not) of defense materials.  Among other things, the witness handles logistics and support for the Chief Defense Counsel---including information technology.  He’s not a “computer guy,” of course, but supervises tech personnel who manage the defense's computers.  When asked, Broyles affirms that, yes, the “IT issues,” as Kammen describes them, are pervasive and serious.  Broyles mentions three big concerns.  For one, investigative search requests (ISRs) in Al-Qosi did not distinguish between defense data and other data.  For another, during server replication, a bunch of defense files went missing mysteriously.  Finally, Broyles testifies, there was monitoring of defense internet activity by DoD personnel.

Some more detail on data loss, or "replication" in the shared jargon of counsel and witness.  The latter explains that server replication was required, in order to allow networks in GTMO and D.C. to communicate---the island’s standalone bandwidth then being quite crummy.  Thus defense drives were copied, and a comparison of the D.C. version with the duplicate down at GTMO took place.  During this, some defense files went missing.  He is aware of three discrete lapses, wherein significant data---7 gigabytes, as thus far ascertained by DoD information officials, Broyles says---was lost.  A repair effort has been ongoing, but replication has ceased for the defense (though not for the court and prosecution).  And now, defense lawyers are comparing its pre-replication network with that existing as of June 10.

Kammen turns to the other anxiety areas for the defense, beginning with the searching and disclosure of electronic defense network files---what we’ve come to call the “Al Qosi” issue.  Naturally this also involves some achingly dull technicalia, into which Broyles delves (but which we won’t describe, for mercy’s sake).  There’s a common bank of servers, he explains, before turning, at last, to ISRs.  These can be initiated after a threshold legal review by DoD information officers. Kammen asks about Al-Qosi---but what happened there simply is not relevant to this case, in the opinion of prosecutor Andrea Lockhart.  But it is relevant, in the court’s opinion, so Broyles proceeds.  He explains that the government had searched for emails between the prosecution and defense in that case, regarding a certain issue.  But the inquiry was too broad, and scooped up clearly privileged defense-only communications; apparently the search might have returned "hits" on emails belonging to the Al-Nashiri defense.  Later Broyles was told that the snafu arose from a failure to obey standard operating procedures.  This provoked bigtime concerns for defense lawyers, for obvious reasons.  Thus Broyles has sought, going forward, to segregate and secure defense data---though the technical process for doing so remains underway, and involves options presented by third party contractors.  (Kammen asks for Broyles’ input about the Chief Prosecutor’s helpfulness in adding further technical safeguards---but his question draws an objection which the court sustains.)  The project could take as much as ninety days, Broyles estimates.

Lastly, there’s the “monitoring issue."  Going forward, testifies Broyles, a defense-aligned person will monitor defense counsel internet use.  It’s a machine-driven process: a computer detects and flags an issue for monitoring personnel, who then investigate.  Previously, that regime was supervised by DoD personnel; under the new system, the security monitoring will be conducted by administrators supervised by Broyles’ office.  Broyles agrees that, to the extent the monitored items involve privileged material, defense counsel has an ethical obligation to protect it.  Consequently, upon discovering possible DoD monitoring, the Chief Defense Counsel instructed her subordinates not to store privileged items on common network drives.

Sensing the rapidly approaching lunch hour, Navy Cmdr. Andrea Lockhart promises a short cross-examination.  She asks about the three areas of Kammen’s concern, beginning with replication.  There’s a way forward for that, right?  Yes, Broyles says, though his crew was not consulted about its execution.  He agrees that the data loss timeframe extends from late December to March, and he isn’t aware of files being lost outside that range.  The prosecutor also suggests that a lost document might have existed in another form or version and thus not been lost---and Broyles seems to agree.  But as we stand today, Lockhart asks, IT folks are finding a good comparison of the December servers to server contents as of June 10, right?  Yes.  And it is possible, Broyles acknowledges, that the comparison might show no files to be missing; the Al-Nashiri team, moreover, will receive a report of what is and isn’t gone.  Broyles points out that this won’t be comprehensive or exact report, however---and thus seems to doubt the possibility of reconstructing defense servers perfectly.

The prosecutor addresses the Al-Qosi and monitoring matters together.  You’re aware of some proposed remedies for the former, aren’t you?  The witness is, and agrees that, if all goes according to plan, a defense consultant will advise Broyles and company about how to proceed.  The inertia is towards building a better system, he adds.  Lockhart then quibbles some with the witness, and the court moves her along.  On to emails: now, the defense will have a separate system for those, right?  Right, with an OCDC-supervised monitor.  And is Broyles aware of any ISRs being conducted in this case?  Broyles isn’t.  To the best of his knowledge, a software switch now excludes defense counsel data from ISRs, as of now.  (A bell sounds in the courtroom---perhaps signaling lunchtime? Nobody knows, so Lockhart resumes.)  And going forward, OCDC will be advised of pending ISRs.  The witness lastly acknowledges that the monitoring issue will be resolved, going forward.  A few more questions---about DoD encryption, among other things---and trial counsel comes to the punch line.

In this case, are you aware of any privileged attorney-client or work product materials being provided to prosecutors?  He isn’t.  What about the government writ large?  Again Broyles isn’t aware.  But he is aware of prosecutors accessing files belonging to the Al-Nashiri defense---in the course of seeking to remedy the replication issue.  Broyles explains that both sides had access to a common drive, as the process eked forward.  He infers as much because he could access what appeared to be prosecution materials on that drive; the same much have been true for the prosecutors' ability to see defense items.  But how do you know that, asks Judge Pohl.  The witness clarifies: he meant accessible, in principle, not that the prosecution in fact had accessed Al-Nashiri files.

We’ll recess for an hour---after which Kammen will turn to re-direct.