Armed Conflict Criminal Justice & the Rule of Law Terrorism & Extremism

9/20 Session #7: Argument on AE155

Wells Bennett
Friday, September 20, 2013, 7:36 PM

At long last we come to argument on AE155, the defense’s motion to abate.

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At long last we come to argument on AE155, the defense’s motion to abate.

KSM lawyer David Nevin sums up.  Don’t force us to go forward with these IT burdens on us, your honor.  Postpone, until the defense can do this right---with an IT system that properly protects defense confidentiality. He overviews the reasons to grant the defense’s relief, moving from lost emails to “dirty shutdowns,” from failed backup procedures to monitoring of defense research activities.  Interrupting, the court squints at the defense’s chosen stopgap method of sending email, that of insecure WiFI.  Nevin rejoins that this email alternative is in fact more secure than the flawed DoD system, given the defense’s experiences and federal criminal law---which precludes intrusion by third parties onto computer networks.  Nevin sums up with a vivid comparison.  If our offices burned down, you would continue the case.  Well, our IT house has burned down.  He sits.

Cheryl Bormann joins Nevin’s claims.  This IT system has holes, she says, and it greatly increases our workload and leaves our secrets unsafe.  And nobody knows how to resolve our IT problems technically---just look at the discrepancies in the testimony we’ve heard this week, about what caused this or that IT muckup.  The situation is intolerable for this death penalty case.  To go forward in this fashion would undermine this tribunal system---which already has enough problems from a legitimacy standpoint.

Bin al-Shibh’s lawyer, James Harrington, sets AE155 in context: this is about the relationship between the defense in this case, and their clients.  All these snafus---OGA monitoring of the courtroom, audio monitoring in meeting rooms, what have you---damage that.  He doesn’t trust anyone in the government, he says.  Finally, Harrington highlights what's at stake in the defense’s motion.  All of these intrusions and muckups will add up, and some day the legitimacy of these proceedings will assessed.  His implication is clear enough.  

Over to Col. Sterling Thomas, attorney for Ammar al-Baluchi.  Thomas’s father was an expert marksman, and instructed him in the use of the .22 bolt-action rifle.  The shoddy IT system is for Thomas like that bolt-action rifle---only now being put to use in the most complex of  21st century shoots, the most complex terrorism case in history.  Until we have a system that permits the protection of legal privileges, he says, the case must be abated.  We can't protect them simply by opting for encryption, or by training up on IT processes.  Indeed, the Al-Baluchi defense has tried encryption, twice, and that hasn’t worked---and at any rate, addressing information isn’t encrypted, ever, and can sometimes encompass privileged information.  Or take CaseMap, the well-known litigation program---which Thomas and company absolutely must use, to process case information.  Encryption doesn’t work for that at all, full stop.  Moreover, it is not enough to disclaim, as the prosecution has, an interest in defense data.  No, Thomas is concerned about others in government, who clearly have accessed confidential material already.  What about them?  Lastly, the attorney mentions email: even Bechtold didn’t know why the defense’s email addresses had mutated, or why emails had been sent to inappropriate recipients.  He concludes by revising his IT-as-a-firearm hypothetical.  On second thought, Thomas argues, the current IT setup isn’t a bolt-action rifle at all. No, it is more like a drill rifle.  And that kind of gun can’t work in a case such as this.

The prosecutor Edward Ryan opposes the defense claims, and asks that AE155 be denied.  Among other things, many of the motion's premises no longer obtain---like the Al-Qosi ISR issue, which Col. Mayberry says has been resolved.  And the motion will be mooted, once Mayberry takes action to work with DoD IT folks, and those people enact tweaks they described in their testimony.  Such people---Ryan has in mind Glover and Bechtold’s testimony---have repeatedly offered to work with the defense in working out a solution, after all.

The defense filed a motion as an “emergency.” In light of such claimed urgency, your honor, the court probably could have expected a compelling case---but it didn’t get one.  Think about recent events.  For one thing, the defense cancelled the most relevant witness it sought initially, Mr. Bechtold.  Well, were this motion really about solutions, the defense would have called him.  Were this motion really about a conspiracy, the defense would have called him.  But no, the defense interviewed Bechtold, heard his breadth of knowledge, and backed off---thus the prosecution decision to call him.  Contrast Bechtold’s testimony with that of Col. Mayberry, the defense’s main witness.  She’s not an IT expert.  And Mayberry didn’t have to issue her “no email, no network drive” orders; she had other courses of action available to her.  But she did issue her order, and therefore consciously crippled the defense’s information management capabilities.  And what about encryption, that is so allegedly unsafe?  The American Bar Association endorses encryption, it turns out---and the defense has relied on the ABA before, as authoritative.

At some point, your honor must ask, is this really about privilege, or is this the emergency motion to abate du jour?  For their part, victims sitting this room might have to ask, is this about Col. Mayberry, or is it about the worst day in their lives?  Mention of the victims provokes the court, who dislikes such an emotional appeal. Maybe save this for the trial, counsel.  To the extent necessary, then, Ryan apologizes.  Having done so, he asks Judge Pohl to deny AE155.

David Nevin replies.  The prosecutor suggested there were no reasons to doubt the fairness of the proceedings.  Well, wrong.  Nevin cites Supreme Court precedent, in which invasions of privileged communications were held to constitute constitutional violations in some cases. And this record, he argues, is chock full of such invasions.  He adds that counsel could not have opted to continue on using flawed DoD IT systems, as the prosecutor suggested.  On the contrary, ethical obligations required Mayberry, and other defense counsel, to take evasive action.   And also contra Ryan, the defense interviewed Mr. Bechtold and in fact discovered he had nothing to add as a live witness, beyond what he said in his declaration.  Not calling him was a good decision, too, given how little Bechtold in fact knew about the issues in play. Indeed he testified that, until visiting Guantanamo, Bechtold was unaware of the defense’s troubles.  Nevin winds up.

So does AE155.  It is taken under advisement.   See y’all at the next session.

Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.

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