The Guantanamo Tribunals Can't Continue On Like This

Stored on what was supposed to be a secure server, defense documents and emails have apparently been "corrupted" and "lost."
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Bob Strong/Reuters

From Cora Currier on Thursday at ProPublica:

"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.

From Carol Rosenberg at the Miami Herald:

At issue has been the disappearance recently of certain defense documents off what was thought to be a secure hard drive at the Office of Military Commissions. Technicians were creating a mirror of the war court's server, so lawyers could work on their documents between the Pentagon region and the crude war court compound at the remote Navy base in Cuba, and documents on both the Cole and Sept. 11 death penalty cases simply vanished.

"I honestly don't know how bad it is. All I know is that the information systems have been impacted, corrupted, lost," [Chief Defense Counsel, Air Force Col. Karen] Mayberry said, describing the lost work product by 9/11 defense lawyers as of a greater magnitude than the Cole case. Plus, the information was on a server that held both defense and prosecution documents, Mayberry said, something that in light of the problems can no longer be tolerated. Had [Judge James L.] Pohl not issued the delay, she added, she was prepared to ask Secretary of Defense Chuck Hagel to freeze the commissions.

From Peter Finn at the Washington Post:

The discovery of the misplaced e-mails follows other questions about government intrusion and secrecy that have undermined the legitimacy of a judicial process that has struggled to establish itself as an effective forum for the prosecution of some terrorism cases. In February, a military lawyer acknowledged that microphones were hidden inside devices that looked like smoke detectors in rooms used for meetings between defense counsel and their clients. The military said the listening system was not used to eavesdrop on confidential meetings, and had been put in the rooms before defense lawyers started to use them. The government subsequently said it tore out the wiring.

I have written or spoken these words in one form or another perhaps 100 times since the military tribunals ordered by President George W. Bush began more than 11 years ago, but I will write them again. A society that purports to be based on rule of law -- even one that seeks to expedite justice for men it believes warrant fewer due process protections than others -- cannot lawfully or morally implement or sustain legal proceedings which make it patently impossible for the accused to fairly defend themselves; or for their lawyers to ably represent them; or which otherwise create such obvious appearances of bias and prejudice so as to render any resulting conviction unworthy of any deference at home or respect abroad.

If these emails were manipulated or lost as part of some intentional act on the part of federal officials it would be unacceptable. But even if these emails were inadvertently manipulated or lost -- even if this is just a case of plain old government negligence or terrible computer technical work -- it is still wholly unacceptable in legal proceedings watched by the entire world. In response to these revelations, the Pentagon late Thursday afternoon directed me to a long-ago directive (see AE 016 at this linkwhich explains that email communication between defense lawyers and their clients is monitored anyway. That response, that attitude, is precisely why these tribunals have failed, and seem doomed.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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