Guantanamo Defense Lawyers Barred From Email After Suspicions of Massive Surveillance Arise

Human Rights

A top Guantanamo Defense lawyer ordered everyone in her office to stop using their official Pentagon email system to send privileged or confidential information due to an inability to ensure that information remains private, according to an email sent to media outlets. The cease-and-desist order came from Air Force Col. Karen Mayberry, the chief defense counsel (CDC), after 500,000 emails were turned over to prosecutors in relation to the case of Ibrahim al-Qosi, a Sudanese man who was transferred from Guantanamo Bay back to his home country in 2012.

As a result of questions regarding confidentiality of Pentagon computers and email systems, Judge James Pohl has postponed until June a hearing for the defendant in the USS Cole bombing case, initially scheduled for next week.

The email alerting reporters to the cease-and-desist order came from Navy Commander Walter Ruiz, defense attorney for Mustafa al-Hawsawi, one of the co-defendants in the so-called 9/11 trial. “This measure was taken as the CDC 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,” Commander Ruiz wrote.

This severe limiting of email use is sure to make defense lawyers' jobs more difficult. “If we were in the infantry, this would be like an order not to use our rifle,” Commander Ruiz told me over the phone. He also said that the CDC had determined certain safeguards like passwords and encryption weren't sufficient to protect the privileged material. James Connell, defense attorney for one of the defendants in the 9/11 case, issued a statement this morning saying that the defense team had filed a handwritten emergency motion to halt the 9/11 trial until the computer security issues were resolved.

In addition, defense attorneys have lost a significant amount of work from what are supposed to be secure servers. As of now the disappeared files seems to be irretrievable, and account for a loss of about three to four weeks of work.

There is also new reason to believe that defense attorneys' online activity is being monitored. Commander Ruiz described a situation in which a co-worker recently downloaded open-source material, another name for information that is not classified and available to anyone with an Internet connection, after which time the co-worker got a call asking about his downloads. The co-worker's computer was then searched, according to Commander Ruiz. The open-source material in question were declassified reports, which may have raised alarm bells.

Allegations of surveillance and lack of confidentiality around Guantanamo Bay cases are not new. At a pre-trial hearing for the 9/11 case in late January, the CIA hit a kill-switch that cut the courtroom feed to the media, which is on a 40-second delay. That an authority other than the presiding judge could kill the feed came as news to defense attorneys and seemingly the judge himself, though prosecutors quickly said they could explain what happened in a closed session. The judge ordered all kill switches – other than his and his assistant's – to be immediately dismantled.

Defense attorneys also feared that discussions in the courtroom among themselves and with their clients were being surreptitiously recorded. Suspicions of surveillance were only bolstered by the discovery that devices made to look like smoke detectors had the ability to record sound and had been placed in rooms where attorneys meet with their clients. Lead prosecutor Brigadier General Mark Martins has denied that the prosecution has been provided with any recordings of or information about privileged conversations.

The questions surrounding email confidentiality come as calls to close Guantanamo have been increasing, due in large part to the ongoing hunger strike taking place in the prison. Attorneys for the hunger strikers say 130 men are participating, while the DoD says the number is 42. At least 11 are being fed through a tube in their nose, and the International Committee of the Red Cross recently acknowledged that force feeding is happening in the prison.

A Pentagon spokesperson declined to comment because the issues are currently under litigation.

Thursday, April 11, is a national day of action calling for the closing of Guantanamo Bay, with events planned in cities throughout the country.

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