Journalism in the Public Interest

Gitmo Defense Lawyers Say Somebody Has Been Accessing Their Emails

Defense attorneys for men accused of terrorism before military commissions at Guantanamo Bay say their email communications have been searched and files have gone missing from servers.

Defense attorneys for men accused of terrorism before military commissions at Guantanamo Bay say their email communications have been searched and files have gone missing from servers. (John Moore/Getty Images)

Update, April 12: In a statement, Pentagon spokesman Lt. Col. Todd Breasseale disputed defense attorneys’ characterizations of the email and data breach described below, saying that none of the government prosecutors “saw the content of any privileged communications.”

The search was conducted by the Pentagon's IT department. Breasseale said the reason prosecution ended up with defense emails at all was likely because a security officer “miscommunicated the search parameters.” As soon as one prosecutor “realized the search results included privileged material, the searches completely ceased, and, upon agreement of defense counsel … the IT department deleted all the search results from the two searches,” Breasseale said.

As for lost data, Breasseale said that was due to a “nearly catastrophic server crash” and problems with satellites that had affected both the defense and the prosecution.

Read the whole statement here

The long-troubled military trials at Guantanamo Bay were hit by revelations earlier this year that a secret censor had the ability to cut off courtroom proceedings, and that there were listening devices disguised as smoke detectors in attorney-client meeting rooms.

Now, another potential instance of compromised confidentiality at the military commissions has emerged: Defense attorneys say somebody has accessed their email and servers.

“Defense emails have ended up being provided to the prosecution, material has disappeared off the defense server, and sometimes reappeared, in different formats, or with different names,” said Rick Kammen, a lawyer for Abd Al Rahim Al Nashiri, who is accused of plotting the 2000 attack on the U.S.S. Cole.

The lawyers say they don’t know exactly who is accessing their communications. And it’s not yet clear whether the emails were intentionally grabbed or were scooped up mistakenly due to technical or procedural errors.

Either way, the lawyers are concerned.

In response to the apparent breaches, the military’s chief defense counsel ordered defense lawyers to stop using email for privileged or confidential communications.

“This follows on the heels of the seizure of over 500,000 e-mail containing attorney-client privileged communications as well as the loss of significant amount of defense work-product contained in shared folders,” Commander Walter Ruiz, one of the military defense counsels, said in an email.

The search of thousands of emails was revealed by the prosecution, attorneys say.

“The searches on their face looked to be fairly benign,” Kammen said.  The defense emails turned up when prosecutors requested a search of prosecutors’ own emails. “The people who were doing the searches ended up providing all manner of defense material as well." It’s not clear what department, agency, or office did the search.  

It is not possible to corroborate the attorneys’ accounts because the full documents are undergoing security review, and are not yet public.

The Pentagon declined to comment, citing the ongoing trial.  

In recent months, defense lawyers also realized that files were missing from their shared and personal servers. There is no evidence that the missing files are connected to the email searches.

“The main thing is that the integrity of the system as the whole is in very serious question,” said Commander Ruiz. The order to stop using servers and emails, “essentially cripples our ability to operate,” he said.

Hearings in Nashiri’s case were scheduled for next week, but in response to a motion from his lawyers, military judge James Pohl has delayed the hearings for two months. Yesterday, lawyers for the 9/11 plotters also filed a motion regarding “Information Technology Corruption and Loss of Relevant Defense Files.”  

These new concerns are the latest example of irregularities of military commissions overshadowing the actual facts of the cases brought before them. Pretrial hearings have been consumed by issues such as whether defendants can wear camouflage to court (they can), when mail can be read, and what exactly lawyers can discuss with or send their clients. The prosecution has also tried to prohibit “informational contraband,” including any material on “current political or military events in any country; historical perspectives or discussions on jihadist activities.” Copies of the 9/11 Commission Report and the memoirs of an FBI agent have been taken from defendants’ cells.

In cases before the commissions, defendants’ interactions with their attorneys are subject to strict controls. Orders aimed at protecting classified information govern most proceedings and lawyers have limited access to their clients. Defense lawyers previously had to get a security officer’s approval to use even mundane information from defendants. That requirement was loosened a bit, but details of the defendants’ time in CIA custody – including their own accounts of being tortured – are automatically classified.

There have been seven convictions under the military commissions. Another seven detainees are currently facing charges, and 24 others may yet be prosecuted. The government has deemed 46 detainees simply too dangerous to release but doesn’t plan to try them.

The Obama administration initially sought to try Khalid Sheikh Mohammed and the four other alleged 9/11 plotters in federal court in Manhattan, but reversed its position after heated opposition from Congress and New York City officials.

Though President Obama has thus far failed to fulfill his pledge to close Guantanamo, no one has been brought to the prison under the Obama administration. In recent months, a string of terror suspects have been extradited from foreign countries to face charges in U.S. courts. 

Of course, using email for privileged communication is sort of like writing on a postcard and then leaving it on the street for someone to pick up and mail for you.

Email is not secure and not intended to be.

Never write anything in an email that you don’t want to be read by a third party.

Rule number one when conducting sham trials in kangaroo courts is to always know everything the defense is thinking.  How else are they going to pin all of those convenient terrorist acts on the patsies?  It certainly wouldn’t look good if word got out that some renegade faction of our intelligence apparatus played a role in orchestrating any of these attacks which happened to justify a marked shift in foreign policy, an orders-of-magnitude increase in defense spending, a consolidation of power amongst the establishment, and a strengthening of the police state, now would it?

If you try a man in a Kangaroo Court why are you surprised that their is no objective justice, or you are subject to dirty tricks?

If justice was the object of the trial there is none better than our regular courts.  If this is not the case then we better change them.

The Statue of Justice for a military commission is an angry lady holding a set of scales with two biasing weights labeled, “don’t embarrass the US” and “Congressional politics” on one side and a label stating objective justice on the other.  In her other hand she holds a double ended black magic marker for redacting documents on one end and a rubber stamp that says, “restricted national security” on the other.

American where no man is above the law and all men are innocent until proven guilty in a court of (Kangaroo) law.

Now I must admit I have no sympathy for the GITMO prisoners I do have concern for government snooping.

I am of the mind that when government takes undo themselves to deny rights to one is to deny rights to all of us. I think we all have a presumption of privacy even though the DOJ has   made the case in all that is online or not, mobile phone, bank accounts etc. warrantless searches as a matter of practice. We all should be outraged.

Benjamin Franklin’s words “They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” are more relevant today than when he spoke those words.

We all, I think, must fight for liberty, freedom and the right to privacy even when it has been abridged by government on people we find distasteful.

One would hope you at least had sympathy for those imprisoned at Guantanamo who have been _cleared for release_ by even our paranoid government but have not because they “cannot” be sent to Yemen, their home country. Those men are _completely_ innocent yet still rot away, accused of no crime, convicted of nothing.

Sorry but after 9/11 I have no sympathy for the prisoners held. Believe it or not, I trust our government and believe that our government agencies are doing their best to protect us.  Freedom is ours only through proactive measures including incarceration of those who allegedly threaten our existence. Otherwise we will live in fear without the freedom that we all desire.  I have nothing to hide, am not paranoid, nor do I believe that our government will misuse private information.  After all, we the people are the government that runs our nation,

Sometimes trusting with a gut is simply more comfortable and convenient than questioning with an informed mind.

“Proactively” protecting “our” freedom usually means depriving “them” of theirs without due process.  It seems fine until “we” become “them.”

It must be the North Koreans who are hacking the emails.  Or, maybe it is the US military.  Same thing, in a way.  Military-Police state.  And we, the citizens are the enemy, not the “protected”.

Yeah…  Bear in mind almost all the people in that jail were connected in one way or another to people who helped terrorists blow up the twin towers.

So - think about that as you whine.  Think about people, jumping from burning buildings, while on fire, to their death 1000 ft below.  Think about that and the thousands of Americas who have later been maimed and killed in action. 

As for me - I care less about the prisoners in Gitmo.

Who’s whining?

The human suffering resulting from the attack on the Twin Towers is horrifying to contemplate. But you’re right: we have a duty to contemplate it.  We also have a duty to contemplate the courage and subsequent suffering of the brave people who rushed in to mitigate the suffering of others without thinking of the consequences to themselves.

But we have, I believe, an even greater duty to try to understand what motivated that attack and what we might do to lessen the likelihood of similar attacks.  We also have a duty to realize that our “war on terrorism” has taken far more innocent victims in Iraq and Afghanistan (often referred to as “collateral damage”) than the attacks on the Twin Towers.

We always forget, but its always present, that government continues to acquire more power, in doing so they take away or weaken our constitutional rights. How can you still pick up a paper or read these articles and not know that. . .  the relationship between government and the citizenry has always been, and always will be “adversarial.” Thinking why this is, standing next to you in the line at McDonald’s idle conversation, but one may be a cop or prosecutor or judge, who leaves that meaningful idle conversation and goes to work and is then compelled to believe the governments point of view; while there are checks and balances, they type of integrity to get justice rarely exist in the government. Jury’s should be used often in almost all cases. Now that the incarceration rate is climbing where states as Louisianan has been basically caught incarcerating just about anyone for government funding of local jails and prisons, no secretes there, just need to control the local media. And we, USA, involve ourselves in other countries human rights affairs when ours is in dire need of attention. How much of the trillions of China dollars go to the intentional rising rate of incarceration?

James M. Fitzsimmons

April 12, 2013, 12:28 p.m.

“ one has been brought to the prison (GITMO)... under the Obama administration…”. Of course not, instead of capturing and harshly interrogating terrorist suspects, the Obama administration simply kills them with drones with hardly a whimper from the same people who were so outraged by GITMO, enhanced interrogation techniques and most everything else the Bush administration did to prevent a future terrorist act against us. Four to five years into the Obama administration and it is still not held responsible for anything. “What difference does it make now” states his former Secretary of State to inquiries about Benghazi and this passes as a sufficient explanation to the media. Without arguing the merits of any of either administration’s policies, I am concerned about a media that does not do its job and is blatantly partisan. With regards to this article’s substantive allegations, my first reaction is that our terrorist adversaries have probably hacked into the Defense Attorney’s electronically stored data to gain access to valuable information for future terrorist operations.  Defendant Nashiri is, in fact, a mass murderer and a high ranking member of Al Qaeda and I have difficulty being sympathetic to him or any of the other terrorists in GITMO who believe that killing innocent people to make a political poit is justified by their warped interpretation of religion.

The final paragraph begins: “Though President Obama has thus far failed to fulfill his pledge to close Guantanamo, no one has been brought to the prison under the Obama administration. ”  Sloppy and misleading writing.  He has not “failed to fulfill his pledge” - he did everything in his power to do it and was stymied by Congress.  He cannot act contrary to their legislation that has precluded Gitmo from being closed.  It is not something solely within his power.  How does this translate to “failing to fulfill his pledge”?

“Somebody” illegally accessing defense emails? It has already been clearly demonstrated that the Rule of Law is only for the little people when the little people break the law. “Somebody” is above the law, has contempt for the law and is a valued member of Team O. Which makes perfect sense.

For all you hard case he men that feel no sympathy for the Gitmo prisoners…

It is not about sympathy; it is not about whining.  It is about what America stands for and boasts to the world about.  You know, “Justice for all;  Innocent until proven guilty by a jury of your peers.”

It is about American heroes that stood up to the populations disapproval like John Adams that defended the British troops no matter how much his peers disapproved and no matter how distasteful it was to him.  He believed in the AMERICAN idea that one is innocent until proven guilty, and that one has a right to a fair and unbiased trial and to be represented by counsel.

These are the things that make America better than the terrorist.  These are the things I am proud of and that differentiate us from terrorists that use Kangaroo Courts and sham trials and spy on defense attorneys.

Fair trials are not optional if we want to be America the land of the free and the home of the brave.

If you can’t convict a man in a fair trial you HAVE to let him go free.  You don’t have to like it.  You don’t even have to agree with it.  But you do have to do it if you want to live in a country that is a Nation of Law that lives and believes in the Rule of Law.

I object to creating a “Military Commission”  and then trying to convince us that it provides justice.  This is way too close to the argument that was used to “support” segregation in the South, you remember “Separate but equal”?

If and when America becomes a land where we are so afraid that we will sacrifice our principles, ignore our Constitution and the Bill of Rights, and take up the ways of a terrorist we have lost and the terrorist has won.  He will have destroyed our way of life and started us down a path to dictatorship and oppression. 

The end NEVER justifies the means.  Never ever.  Never.  It will just destroy our freedoms, our way of life and our nation.

Think of all the brave men and women that have fought and died for America.  The America you and I grew up in.  It is now our turn to support the free way of life.  To live and if needed die by the Constitution and the Bill of Rights, and to show our kids the American spirit. 

Pogo said 60 years ago in his comic strip, “We have met the enemy and he is us.”  Don’t let this be true.  Re-read the Constitution and the Bill of Rights and then if you can the legislative history that outlines the thoughts of the men that created those sacred documents, and finally the story of John Adams when he defended the British.

Then support a fair trial for all men and be proud of America.

I bet dollars to donuts the emails reappearing with different names was done deliberately by federal IT employees that had a problem with being ordered to breach attorney client privilege, specifically to raise some red flags for the defense.  Geeks tend to have rather black and white moral principals. And good for them!

Well put Makaainana.

What Makaainana said.  But with more words and harder to follow.

But hey, you manly men go on trusting a government that “protects our freedoms” by monitoring us and treating us like criminals when we travel, and suspects us of criminality based on our skin color, religion, or national origin.

And trust me, if the government says that anything the defendant says can be censored, removes the defendant’s (and his lawyer’s) right to privacy, and limits access to information about the crime?  That’s blatant railroading, and shows that the government doesn’t have a case.  If they did, they’d present it fairly.

Real patriots don’t hide the truth and they don’t decide that the rules don’t apply when they’re unhappy with the likely outcome.  Patriotism is about principle, not which flag gets to wave the longest.

(Quick disclaimer:  I’m a New Yorker.  Former classmates and friends-of-friends died in the towers.  A friend’s brother was the sole survivor of his company.  So don’t even try to tell me “it’d be different if,” because that’d lose you the argument.)

Any thoughts on if there may be any connection with this mess and the recent “suicide” of Federal Defense Attorny Andy P. Hart? Sems a bit ironic and there are suspicions on if he actually did shot himself or if he was murdered and the note/thumb drive left behind was planted. Just a thoguht….

This article is part of an ongoing investigation:

The Detention Dilemma

The government remains uncertain what to do with its prisoners at Guantanamo Bay.

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