A Kangaroo Court at Last

Defense attorneys spied on, files missing, emails accessed – what next?

by , April 16, 2013
camp_justice

Kangaroo Court: 1.) a mock court in which the principles of law and justice are disregarded or perverted

For years, activists have been referring to the military tribunal system at Guantanamo Bay as a “kangaroo court.” Evidence pouring in from the island compound and from the U.S Military Commissions office in Washington indicate this invective may have finally found its mark.

Why? For one, the government admitted last week that “hundreds of thousands” of defense lawyers’ emails were turned over to the prosecution, ostensibly “by accident.” This, after it was reported a day earlier that a huge trove of documents stored by defense counsel (U.S military and civilian lawyers tasked with providing the Gitmo detainees fair and adequate representation) were “lost” – poof! – into the ether without a trace and somewhat predictably.

We say “predictably,” because I wrote a story last year that quoted several attorneys in the Office of Chief Defense Counsel at the U.S Military Commissions in D.C who said they did not trust that the prosecution or any other federal government agency were not already peeking at their files through a back door built into the government network. They complained that, because they were forced to use Department of Defense computers for all official business – including communications with other attorneys about specific cases – and because they were being forced to sign user authorization agreements that allowed the Pentagon access to their log-ins and passwords for “security” and “maintenance,” they could not maintain their professional oaths and duty to uphold client-attorney privilege and confidentiality and exhaustive representation for their clients.

In other words, everything they feared would happen it turns out has happened, and since this is an evolving story, we don’t yet know how much damage is has done. But we can start to size it up: it’s beginning to look now that the government never really cared much about giving the prisoners held at Guantanamo Bay a “fair” trial, at least in any way American jurisprudence would recognize, and that the tribunals are just an elaborate series of smoke and mirrors deployed to give a sheen of legality to what is clearly the more immediate intent of detaining foreigners indefinitely without charge and interrogating them how the government wants and under the military’s own rules.

kangaroocourt

As for the tribunals, they are clearly programmed to ensure a preferred outcome, if and when charges can be brought and a trial undertaken (of which there have been very few over the last 11 years). That part of the plan has been a failure, however, with only a handful of actual convictions and even those are on their way to being overturned.

What’s happened recently threatens to tear down the whole façade, however. Former Chief Prosecutor, (Ret.) Col. Morris Davis, who resigned in 2007 in opposition to the use of evidence gained through the torture of prisoners, has become a major critic of the prison and military tribunal system.

“There were a lot of problems over the course of the two years I served as chief prosecutor and a lot of debate in choosing where legal lines should be drawn, but we never encountered as clear a foul as the government having access to everything the defense says and writes, which seems to have been the case recently,” Col. Davis shared with Antiwar.com over the weekend.

“This isn’t a ‘could we or should we’ kind of issue, it’s one that undermines the most basic notion of justice and the rule of law. Imagine an American citizen being tried in a second-tier system of justice some other country created after holding the American in prison for more than a decade. Imagine that the other country tortured the American to make him talk. And now imagine learning that the American’s discussions with his attorneys are being monitored and the government has access to his defense team’s materials.”

When we asked (Ret.) Lt. Col. Donna Lorraine Barlett, who served as a defense attorney for the U.S Commissions until retiring from the Army late last year, what would happen if hundreds of thousands of defense counsel emails suddenly found their way to the prosecution in a civilian court trial, she wrote back immediately: “Sanctions for prosecutorial misconduct, grant of defense Motion to Suppress, or even dismissal of charges... mistrials. All hell would break loose.”

“I always felt spied on”

When I began speaking to the defense attorneys in late 2011, they’d already been refusing to sign the mandatory user agreements for the DoD network. They knew, however, this would not prohibit DoD technicians or anyone else from accessing their accounts. Those who complained and brought this issue before the judge in the case of Abd al-Rahim Nashiri, the only surviving plotter in the 1998 U.S.S Cole Bombing, were rebuffed by government lawyers who said there were plenty of safeguards to ensure the defense files were protected. The government did acknowledge, however, that the DoD “routinely intercepts and monitors communications” on the network for purposes “including, but not limited to, penetration testing, communications security (COMSEC) monitoring, network operations and defense, personnel misconduct (PM), law enforcement (LE), and counterintelligence (CI) investigations.” Sounds like enough of a loophole to drive a truck through, or at least a surveillance van.

Nevertheless, in response to the Nashiri team’s complaint in the winter of 2012, the government argued, “monitoring of defense’s information systems does not violate any applicable privileges nor the accused’s right to the effective assistance of counsel.”

In Friday’s news that the prosecution actually saw and was able to read an untold number of defense attorney’s confidential communications because of the “inappropriate transfer” of 540,000 emails, the government took the same, albeit more guarded tone, according to Washington Post reporter Peter Finn. The Pentagon would offer no statement to the media about what happened to the emails, but:

Defense attorneys said prosecutors told them that they stopped looking at the e-mails as soon as they realized that the messages contained confidential defense information.

The mishandling of the e-mails was detected when IT specialists were conducting a search of the government’s computer system on behalf of prosecutors in a particular case. When they did so, they came across not only the e-mails they were seeking but also those between defense lawyers.

Defense attorneys said military IT personnel unsuccessfully tried to refine their search parameters two more times — and in each case discovered more confidential defense material.

Meanwhile, Finn reported that the disappearance of “huge volumes” of defense attorneys’ files is still being treated as a separate, equally controversial issue. Apparently these files were “lost” when the Pentagon tried to upgrade and mirror the system in the attorney’s offices in D.C with the network at Gitmo, to make them more compatible. “Entire files, months of work was just gone,” Navy Commander Stephen C. Reyes, who represents Nashiri, told Finn.

“I have no evidence of any nefarious conduct, but it demonstrates again that we don’t have confidence that our files and communications are secure.”

Unfair Justice

As a result of this mess, Chief Military Defense Counsel Col. Karen Mayberry duly ordered that her attorneys immediately stop working on DoD computers to transmit privileged or confidential information. The judge in the Nashiri case, Army Col. James Pohl, who has been arbitrating these issues of government intrusion for over a year now, also ordered a two-month delay in the pre-trial proceedings in the Nashiri case. He is reportedly considering a similar delay in the 9/11 conspirators’ case, too.

The defense attorneys have been seeking a new computer network independent from DoD servers so that they can ethically do their jobs. So far that has been too much to ask, but perhaps last week’s developments might make their case stronger. “I’m not going back to the same broken system,” Mayberry told Miami Herald writer Carol Rosenberg, by “putting a Band-Aid on it so we’ll bleed somewhere else.”

The point that everyone seems to be making but as usual, the mainstream media has treated like a bland side-dish story, is that the missing and misdirected emails are just one part of this strange, parallel universe in which the Rule of Law is turned on its head, seemingly, to benefit the prosecution, which is part of the same institution that happens to be running the jail and providing the judges and the defense counsel.

That defense counsel has not only been afraid to use their government computers, but have complained that their phones in D.C are tapped. Last year, they filed complaints that new prison rules were allowing military guards to read their clients’ legal mail. In a strange twist, Judge Pohl learned there was a “kill switch” that allowed an outside entity (thought to be the CIA) to censor the audio feed to the public gallery during hearings, which actually happened during the February pre-trial hearings for the 9/11 conspirators. At the same time, defense attorneys confirmed there were listening devices planted in the rooms where they assumed their meetings with clients were private.

The latest debacle with the emails and confidential files are “too bizarre for words but entirely predictable and only one of the reasons I had no faith in the commissions system and decided not to extend,” my tour, said Lt. Col. Barlett, who has called Gitmo our “national wound.”

“There were too many red flags that I recognized early on; it was like that Jim Carrey movie where he was in a reality TV show under constant observation but didn’t know it till the end. I always felt spied on and never thought that the attorney client privilege meant anything there.”

How can the American public still believe what is going on there is justice? On one hand, there has been such a campaign to make these men out to be less than human, that it won’t matter to many Americans whether they are treated fairly or not (though we know now, nearly half have been cleared to leave but cannot). On the other hand, politicians love to engage the near-religious mantra that America is the world’s “beacon,” a shining model of liberty for the rest of the world to emulate.

If that is truly the case, isn’t it time to call it what it is – a kangaroo court? “I would, and I have,” said Barlett. “The cards are fully stacked against the defense…If I were the Chief Defense Counsel, especially based on this latest revelation, I would advise all my attorneys move for mistrials at once. Now, she cannot control their moves, but certainly it would be a dramatic and bold move of protest. In fact, if I were the Chief Prosecutor, I would do the same. This episode will destroy what little is left of Commissions credibility.”

Col. Davis, offering a different angle, wonders if this is not the beginning of the end for Gitmo at last.

He noted first the string of bad press. Over the weekend for example, military guards raided the communal cell block for the prisoners — ostensibly to end the ongoing hunger strike — and moved the men into individual cells. The action led to a skirmish between the military and inmates, in which a guard reportedly fired “four non-lethal rounds.” We don’t know much more than that, because the media has been locked out of the facilities for weeks. One hunger striker, Shaker Aamer, a detainee who was cleared to leave Gitmo as far back as 2007, spoke to his civilian lawyer Clive Stafford Smith over the weekend and said people “are dying inside.”

In addition, there’s been unwelcome news that the prison needs a multimillion dollar upgrade, and Morris noted that the government has chosen to try the recently indicted Abu Ghaith, Osama bin Laden’s son-in-law, in federal, rather than military court.

“There are just too many anomalies of late for this to be a random pattern,” Davis shared. “I think they’re prepping the optics so when President Obama says ‘enough is enough, I’m closing Guantanamo’ it will be hard for anyone to make a serious argument that he’s making a mistake.”

That is for sure. It’s hard to think that President Obama, so careful about his political legacy, would want a kangaroo court anywhere near it.

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