9/18 Session #5: Winding Up Direct

David Nevin resumes his discussion with the defense’s witness, Air Force Col. Karen Mayberry, the Chief Defense Counsel at the Office of Military Commissions. The pair discuss information technology problems which have burdened Nevin and his fellow defense lawyers since 2012---in particular, certain investigative search requests, like that notoriously conducted by IT personnel in connection with the Al Qosi case.  There, the Court of Military Commission Review ("CMCR") had ordered the production of information, from the prosecution, about the accused’s waiver of appellate rights in his plea agreement.  It thus sought assistance from information technology professionals and administrative people at the Office of Military Commissions.

The decision to search in Al-Qosi was not Mayberry’s of course, and her office had no idea about that inquiry---which, as we all know, improperly swept up privileged defense emails---until afterwards. Moreover, as Nevin illustrates by means of email correspondence around the time, it appears prosecutors and defense lawyers had, in advance, clearly instructed IT staffers not to search for defense emails, in response to the CMCR’s request.  From her perspective, the issue was seemingly resolved at that point, Mayberry tells Nevin.  But, as we all know, defense materials were searched, as a result of what IT people later called “human error.”

Mayberry is optimistic about at least one part of the search regime in place now, which, again, presumptively blocks searches of defense files absent sign-off from Mayberry or others in her crew.  This could work, she tells Nevin----though she is careful to make clear that the new, improved protocol only touches searches within the Office of Chief Defense Counsel’s email accounts.  Recall that, earlier, we discovered that defense personnel often carry multiple military email aliases---some of which exist outside of the defense counsel's office, and are thus subject to search without prior notice to Mayberry.

Nevin concludes his questioning; one of Bin al-Shibh’s lawyers, James Harrington, begins his.  Is Mayberry aware that some counsel must use private emails, as a consequence of the IT problems under discussion?  She is, and acknowledges that such an arrangement is less than ideal.   (This exchange will matter, later in the afternoon.)

Harrington tags in Lt. Col. Sterling Thomas, counsel for Ammar al-Baluchi.  Thomas mentions a prior claim, in August, by prosecutor Clay Trivett.  The latter had said that it was now up to Mayberry to approve a fix for the defense’s IT woes.  Was that right?  No, it wasn’t, answers the witnesses; the ball isn’t in my court, but that of the Defense Department, which must endorse any changes to IT architecture.  Also wrong was Trivett’s suggestion that the burdens on defense counsel, imposed by the IT snafu, all amount to mere inconveniences.  On the contrary, these are serious impingements, she says, and all caused by the underlying IT insecurity problems.  But not by Mayberry’s order, which she had to issue in order to address the situation.  And guess what?  Those same problems persist today. By way of example, Mayberry only recently tried to send an encrypted email---but it wouldn’t send, and wouldn’t encrypt.  Thomas can sympathize: he’s tried to email discovery requests to prosecutors, only to have the messages bounce back, among other things; moreover, he tells the witness his team lost privileged investigative notes, earlier, as a consequence of replication.   When asked, the witness tells Thomas sees no reason to revisit her “no email/no network drive”  order.

The last words---in the direct examination---belong to Mustafa al-Hawsawi’s lawyer, CDR Walter Ruiz.  Among other things, Mayberry tells Ruiz that Mr. Cronin, a member of the Al-Hawsawi defense team, was monitored by Defense Department personnel during internet research conducted on Al-Hawsawi’s behalf.  Well, whoever did that monitoring, Mayberry says, he or she wasn’t covered by any privilege. And he or she also managed to root around quite extensively in Cronin’s folders and files, too.  Regarding Al-Qosi, Ruiz reminds Mayberry that Suzanne Lachelier represented the accused there---along with, at the time, Al-Hawsawi, Ruiz's client.  Would there be any way for IT searchers to distinguish Al-Qosi emails from Al-Hawsawi emails?  The witness thinks not.

It’s cross examination time.