For 9/11 Lawyers, Starbucks Beats Pentagon Computers
FT. MEADE, Md. (CN) - Lawyers for accused Sept. 11, 2001, plotters will avoid Defense Department servers to protect their communications, an Air Force colonel said, reinforcing her earlier order as proceedings reconvened before the war court in Guantanamo Bay on Wednesday.
The decision has made the only Starbucks on Cuban soil a frequent destination for attorneys representing Khalid Sheikh Mohammed, the suspected "mastermind" of the attacks, and his four alleged accomplices, whose pre-trial hearings by military commission are being transmitted from the island via closed-circuit feed to reporters here in Maryland.
Captured between 2002 and 2003, prosecution was not yet on the agenda as the five men were held incommunicado in secret prisons for roughly three years. They were transferred to Guantanamo Bay on Sept. 4, 2006, but they would not be arraigned for roughly another six years.
Prosecutors now aim to bring the cases to trial sometime next year, but defense attorneys recently requested a delay of proceedings until their lawyer-client communications have been secured and protected.
Such issues have already caused this week's round of hearings to drag.
On Monday, Mohammad and co-defendant Ramzi Bin al-Shibh complained that sleep deprivation and lack of access to counsel had prevented them from meaningfully engaging in their defense. Their rambling statements became garbled in translation when processed through the hearing's video feed.
Col. Jame Pohl, the military judge, ejected Bin al-Shibh from the proceedings that day for speaking out of turn, and then called a recess for defense attorney Cheryl Bormann to seek medical attention for an upper respiratory infection.
As the parties reconvened Wednesday, Mohammad and Bin al-Shibh voluntarily chose not to return to the courtroom, and one of their lawyers told the judge that "sounds and vibrations" in their cells had been preventing them from sleeping.
That defense attorney, Navy Cmdr. Kevin Bogucki, said that a psychiatrist determined the men were not delusional, and he wanted the court to probe whether the Joint Task Force Guantanamo defied his order to make any noises stop.
The judge replied that he would entertain such a motion if filed by the attorneys but that he would not allow outbursts from the defendants.
For the rest of the day, the court heard testimony from Air Force Col. Karen Mayberry about the panoply of problems surrounding the computers at the Office of Military Commissions-Defense where she serves as chief defense counsel.
The colonel was questioned first by Bormann, who had mostly recovered from her head cold and returned to the court dressed in a black hijab in deference to the wishes of her clients.
In December 2012, the Pentagon informed her of a new program replicating their files from their office in Virginia to improve access to them in Guantanamo, Mayberry said.
An email about the shift came near Christmas, Mayberry added, when only a "handful of us were in the office," and most of the staff did not learn of any change until noticing quirks on their computers early next year.
All told, defense attorneys estimate that up to 500,000 emails have been "seized." Entire drives would disappear and reappear from servers, and hidden or modified files would appear on defense attorneys' drives, she said.
"There was no rhyme or reason," Mayberry said. "It was universal, across the board."
An information technology specialist confirmed that the servers had been repeatedly "tanking," leading to a "catastrophic" data loss in February and a "massive" loss in March, she said.
Mayberry said that she was told that the replication process was to blame, but she said that she learned that 7 gigabytes of her office's data disappeared on Dec. 12, 2012, weeks before she learned of any shift.
The Enterprise Information Technology System Division (EITSD) later informed the colonel that it would pass her office over a "migration" of email servers, but certain defense lawyers found their email servers switched an OSD.mil account to mail.mil.
This could have sidestepped protections guarding the defense team's privileged files, she said.
Two co-counsel representing Mohammad complained of "real-time monitoring" when they learned about after receiving phone calls asking them about the websites that they were visiting.
Attorney David Nevin noted that they ironically received an explanation stating that their Internet monitoring was "limited to" the name of the user, location of the user, the address that the user is looking at and the time spent on the website.
After learning of these incidents, Col. Mayberry issued an April 10, 2013, order forbidding defense attorneys from using the government networks. She predicted that her decision would upset the judge and risk shutting down the case.
Since that time, the defense attorneys that she supervises have opted for Guantanamo's Starbucks and a restaurant called The Jerk Shack rather than use Department of Defense computers.
While the Pentagon emphatically denies surveillance of attorney-client communications, defense attorneys say this position is undermined case of Ibrahim Al-Qosi, a Sudanese man who was repatriated to Somalia after serving a brief sentence for supporting terrorism.
A prosecutor in that case informed the defense that their protected communications appeared on his server, but he swore the he never read the document when he returned it.
Prosecutor Ed Ryan noted that prosecutors also have a professional obligation not to violate a defense attorney's privilege, and that a violation can be severely sanctioned up to a dismissal of a case.
"Shoplifting or mass murder, privileges are privilege," Ryan said.
Mayberry replied, "It's the sacrosanct rule with which we operate."
Ryan suggested that what he called the "Starbucks method" was not the way to get information security.
"Is this practice consistent with your order?" he asked.
Mayberry conceded that it was "not ideal," but she judged it better than remaining on Pentagon servers.
Ryan pressed, "We happen to be on an island, a foreign island whose government doesn't like us. Don't you think that increases the dangers even more?"
"We're on a military installation," she countered.
Judge Pohl noted that he might have no authority to make Mayberry lift her directive, as she is a supervisor and not co-counsel of the defense team.
The defense attorneys' ability to communicate will be stymied as long as her directive holds, but they have welcomed it for lack of confidence in the military's system.
Prosecutor Ryan noted that the same military system recently tried two high-profile cases: WikiLeaks source Chelsea Manning, the Army private formerly known as Bradley, and Nidal Hassan, the former major awaiting the death penalty for the Ft. Hood massacre.
He asked whether "these five individuals" - indicating the alleged Sept. 11 plotters - should be "getting more benefits than our soldiers, sailors and Marines?"
Mayberry replied: "No."
On redirect, attorney Nevins asked her whether hundreds of thousands of defense emails were ever reportedly seized in other military cases.
Mayberry replied that she probably would have heard if they were, and she agreed with Nevins that she would not have ignored such a development if she supervised it.
Unlike those other case, Mohammed and his alleged cohorts were "held incommunicado for 3 ½ years," designated "enemy combatants" and "tortured," Nevins added.
"The reason Col. Mayberry issued this order is that she knows she's dealing with an extremely unusual situation," he said. "We can't act like this is a shoplifting case on a military base in Texas."