Nearly a dozen years after terrorists guided commercial jets into the Pentagon and the World Trade Center, the prosecution of the alleged masterminds of the 9/11 attacks continues to be plagued by bizarre incidents that have threatened to derail the proceedings at Guantanamo Bay.
Now, some observers are beginning to question whether a series of seemingly embarrassing gaffes might instead be part of a strategic plan by the Obama administration to shutter the military prison at Gitmo.
“Perhaps I’m wrong, but there are too many fiascos in too short an order to be the result of random chance,” said Air Force Col. Morris Davis, who for two years served as chief prosecutor of the military commissions at Guantanamo.
First there was the revelation in late January that an”invisible hand” was secretly monitoring and censoring the pre-trial hearings of five men accused of conspiring in the 9/11 attacks.
Then there was the discovery soon after that a listening device, disguised to look like a smoke detector, was placed inside meeting rooms at Guantanamo, where lawyers conferred with the prisoners.
The strange turn of events have taken place against the backdrop of a three-month old hunger strike at the prison that turned violent Saturday when guards staged a predawn raid at the communal camp and isolated prisoners into single cells in an attempt to bring an end to the protest.
Just when it seemed the chaotic sideshow surrounding the military tribunals had come to an end, half a million privileged e-mails fell into unauthorized hands, and at least seven gigabytes of defense documents in government computers have vanished, days before the war crimes hearings were scheduled to resume.
Air Force Col. Karen Mayberry, the chief defense counsel in the Office of Military Commissions, issued an order late Wednesday instructing all military and civilian defense attorneys in her office to immediately cease using their government-issued computers to conduct legal work on their cases.
“This measure was taken as the [chief defense counsel] has determined that the integrity of these systems is not sufficient to ensure that we safeguard confidential and privileged materials, as it is our ethical duty to do,” Navy Cmdr. Walter Ruiz, lawyer for Mustafa Ahmed al-Hawsawi, one of the five 9/11 suspects on trial, said in an e-mail sent to reporters.”This follows on the heels of the seizure of over 500,000 emails containing attorney-client privileged communications, as well as the loss of a significant amount of defense work-product contained in shared folders. The effect is that this essentially cripples our ability to operate.”
The incident has resulted in a two-month delay in hearings that were set to begin today [April 15] for Abd al-Rahim al-Nashiri, the alleged mastermind behind the 2000 bombing of the USS Cole.
It is likely Army Col. James Pohl, who granted a defense motion to pause the hearings in al-Nashiri’s case, will do the same in the case of Khalid Sheikh Mohammed and four other accused 9/11 plotters, whose attorneys filed a handwritten emergency motion on Friday seeking a temporary halt to the proceedings, scheduled to begin April 22.
Colonel Davis believes the embarrassing turn of events is no coincidence. In addition to the growing list of gaffes at Gitmo, he said:
- Gen. John Kelly, commander of the US Southern Command, told a financially-strapped Congress he needs a quarter-billion dollars for Gitmo renovations on top of the hundred-plus millions in yearly operating expenses.
- Osama bin Laden’s son-in-law, Abu Ghaith, was taken to New York for detention and trial in federal court, instead of being sent to Guantanamo.
“I believe it is all part of a plan to tamp down outrage when President Obama announces that he’s closing Gitmo, sending the majority of the detainees already cleared for transfer home, bringing the rest to the US and prosecuting them in federal courts,” said Davis, who helped write parts of the 2006 Military Commissions Act passed by Congress, and has since become a vocal critic of the use of the system to prosecute terrorism suspects.
“I suspect they are painting the picture to show it’s taken too long, and there’s no end in sight; it’s too fatally flawed to save; it creates too much damage to our standing in the eyes of our allies and enemies alike; and it costs too much money at a time when money is tight to continue trying to spit-shine the Gitmo cow-pile in hopes that someday it will shine up nice and look pretty,” he said.
The White House declined to offer up a response to Davis’ theory and instead pointed Truthout to comments White House press secretary Jay Carney made during a press briefing on Thursday in which he told reporters,”The President remains committed to closing Gitmo for national security reasons.”
Monitoring, a War Crimes Appeal and an E-mail Breach
Whatever the politics, attorneys defending terrorism suspects facing war crimes charges aren’t playing along.
“The theme is incredible,” said James Connell, an attorney for Ammar al Baluchi, one of the 9/11 accused, referring to recurring efforts to undermine defendants’ cases, in an interview with Truthout. “The breach of “e-mails were the only place left.”
The defense lawyers said the breach of their confidential e-mails is part of a larger problem: the “blanket” monitoring of their electronic communications that dates back many years. In October 2011, Al-Nashiri’s defense team filed a motion requesting that the military commissions judge order the Department of Defense to cease its ongoing monitoring of defense counsel’s confidential use of information technology and communications.”
According to an Oct. 27, 2011 court document: “Due to a voluntary disclosure by the DOD to defense counsel a year ago, counsel became aware that the DOD conducts blanket monitoring of defense counsel’s communications and information technology when conducted or routed through the government’s network.”
This blanket monitoring provided various government agents “unfettered access” to al-Nashiri’s confidential electronic information” with little to no known oversight,” the document said.
Richard Kammen, al-Nashiri’s civilian defense attorney, told Truthout what came out of that hearing was a decision by the government that defense attorneys should use encryption to “protect confidences.”
“The government called a witness who said our fears were vastly overstated,” Kammen said.”But it’s been demonstrated over the last few weeks that our fears weren’t overstated. It is really clear to us that the government has no conception of the need for confidentiality within the attorney-client relationship.”
Connell, attorney for al-Baluchi, said defense lawyers received a“series of assurances over the years“ from the government“that all of our information is secure and encrypted e-mails can‘t be read.“
But,“system administrators get authority to read encrypted e-mails because the Department of Defense owns the encryption and public and private keys,“ he said. “The whole idea that [the 2011 hearing in] Nashiri resolved this issue is not true.“
Pentagon spokesman Lt. Col. Todd Breasseale vehemently denied that prosecutors had read any of the defense attorneys‘ e-mails recently turned over to the government by information technology specialists under contract to the Department of Defense. He said prosecutors only saw“to“ and“from“ and“cc“ lines.
“Our corps of military and civilian attorneys – both defense counsel and prosecution – follow the same protocols for ethics as every other ethical, reputable attorney,“ Breasseale told Truthout. “Purposely reading privileged mail is always unethical, and I cannot imagine a time when doing so wouldn‘t lead to disbarment.“ (When microphones were discovered in the meeting rooms at Guantanamo where lawyers meet with prisoners, military officials said they were never turned on.)
A review of court documents revealed that military prosecutors gained access to the defense attorneys‘ confidential e-mails last month while battling with Ibrahim al-Qosi‘s defense attorneys, who have laid the groundwork for an appeal of his war crimes conviction.
Al-Qosi was Osama bin Laden’s cook. In 2010, he struck a deal with the government and pleaded guilty before a military commission to material support for terrorism and conspiracy charges, in exchange for a lighter sentence and a promise that he would become a cooperating witness. Al-Qosi was repatriated to Sudan last July after fulfilling the terms of his pre-trial agreement.
The government is trying to thwart al-Qosi’s attempts to appeal his case, claiming he signed a waiver prior to his sentencing giving up his rights to challenge his conviction.
In February, military appeals court judges ordered Army Brig. Gen. Mark Martins, the chief prosecutor, and Navy Capt. Edward S. White, a government appellate attorney, to “produce copies of any communications, or records thereof, between the Government, and the Petitioner or any member of the Petitioner’s trial defense team or Appellate Defense Counsel regarding waiver or withdrawal of appellate review, not otherwise included in the authenticated Record of Trial.”
On March 29, al-Qosi’s defense team asked the court to order the government to “immediately cease its searches” due to the fact that more than half-a-million defense attorneys’ e-mails were turned over to prosecutors in the course of a search of files for responsive records about the waiver of appeal.
Highly critical news coverage of the email breach led Breasseale to disseminate a lengthy statement to reporters last week downplaying the gravity of what occurred and disparaging some journalists for relying upon “factually uninformed, third-party opinion.”
But Ruiz, the defense attorney for al-Hawsawi, told Truthout no matter how the government spins it, the”blunders” are”colossal.”
“They were conducting searches using attorneys’ names as keywords,” Ruiz said.”I think it’s just incredibly bad judgment. I don’t’ know what they were thinking. They obviously thought what they did was appropriate.”
Breasseale said “no one has reviewed these e-mails, so we do not know if they include confidential material.”
He said three separate searches in the al-Qosi case took place, and it was the third search that scooped up 540,000 defense attorneys’ e-mails, which were turned over to a”privilege review team composed of attorneys” from the Defense Department’s Office of General Counsel” who had no involvement in the Qosi case before the United States Court of Military Commission Review or the Cole and 9/11 trials.”
Davis said the email breach is serious. Although he dealt with”lots of issues” during his tenure as chief prosecutor, none were “as fundamentally troubling as the government apparently having access to everything the defense compiles, writes or says.”
“This isn’t one of those gray areas where reasonable minds can debate whether something is right or wrong,” Davis said. “Attorney-client privilege and the confidentiality of an accused’s communications with his attorneys are core principles in countries that purport to adhere to the rule of law. From the start there’s been the question of how much government information the defense is entitled to see, but now it’s turned into a game where the government says ‘you can’t see our cards but we have the right to see yours.’ That’s a rigged game in cards and it’s a rigged game in court.”
Missing Files Too
Kammen, al-Nashiri’s attorney, said he’s willing to accept the government’s explanation about how e-mails were scooped up, but the bigger mystery to him involves the disappearance of attorneys’ legal files, which the government”is glossing over.”
It started in mid-February, not long after the revelation at a tribunal hearing that the hidden microphone had been in place in meeting rooms at Guantanamo. Kammen said files just disappeared from the attorneys’ computers and, in one case,”reappeared under a different file name.”
“I have heard that at least one team has lost a file that represents 18 months of investigative effort,” he said.
Ruiz said defense attorneys”have lost legal motion-type documents, drafts, outlines and correspondence.”
“We have a network drive that we share,” he said.”Everyone on the team has access to the folder and we also have a personal folder. What we have seen is that when we go to our personal folder, half of it is missing.”
Breasseale said it isn’t just defense attorneys who suffered a massive loss of data. A “catastrophic server crash” wiped out nearly 400 gigabytes of data in the Office of Military Commissions that impacted prosecutors as well as the defense attorneys, he said.
The crash “affected not only the main server, but both of its back-up servers,” Breasseale said.
Ruiz said defense attorney will face a difficult challenge trying to duplicate their work, and it will bring the military commissions to a crawl.
“I’ve been practicing law for 17 years, and I’ve never seen this type of indictment of the process,” Ruiz said.
Kammen chalked up the fiasco to just”another example in which issues we are dealing with in military commissions are issues that would never arise in federal court.”
“In the 35 death penalty cases I have been involved in, nothing improper like this has ever occurred,” Kammen said. “This problem has to be fixed or the lawyers are going to be placed in an impossible position.”
In the absence of shutting down the detention facility and abandoning “the legal charade called military commissions,” Davis said, “at an absolute minimum, all of those outside of the respective defense teams who’ve had access to defense information should be barred from further participation in any capacity.