Files have been lost, computer searches monitored and e-mails "disappeared into the ether" at Guantanamo Bay since January, say lawyers for the five co-defendants in the 9/11 case.
One after another, defense lawyers stood before Judge James Pohl in a Guantanamo courtroom on Friday to claim the government-provided computer system has made modern-era legal practice impossible. They say they've had to hand-write complex legal documents, travel to send e-mails from their personal laptops over the Starbucks wifi system, and struggle to reconstruct lengthy legal briefs that disappeared without explanation from their computers.
Major Jason Wright, a military defense attorney for Khalid Sheikh Mohammed, described how his defense team learned prosecutors had had access to their e-mails, and that once, a case-related computer search caused a Pentagon official to search that individual's computer system. As a result, the Chief Defense Counsel ordered them to stop using the government system for any case-related matters.
"We were basically put back in the 19th century," said Wright.
"We lost files," Cheryl Bormann, defense counsel for Walid bin Attash, told the court. "I can tell you we submitted a document requesting files be restored that contain approximately 50 - 55 investigative files. These are things that were compiled over the last several years that contained results of investigations we conducted on behalf of Mr. bin Attash. Those files are gone. We've received no explanation."
Bormann said that in February, her team requested the help of a computer consultant. She was told the problem would be solved by April, but now, in August, "the situation hasn't been solved. It's only gotten worse." Recently, e-mails sent by lawyers on her team were never received.
"It's mind boggling how difficult this job is," she said.
David Nevin, who represents Khalid Sheikh Mohammed, echoed that sentiment. "In this day and age you cannot practice law in this way in any case," he said. "Not a shoplifting case in Boise, Idaho" and not in this death penalty case, he said.
Prosecutors responded that the problem was being fixed, but insisted in the meantime, the case should go forward.
"The arguments they've made and power points they've been able to show belies the fact that they can't function," prosecutor Clay Trivett told the court. "We believe they can function within the privilege under the current existing infrastructure."
"It sounds like they have some legitimate inconveniences that they've suffered," said Trivett, "but without being able to articulate to the court what files they lost" there's no reason not to continue, he said.
That's not what the Chief Defense Counsel for the military commissions believes. Air Force Col. Karen Mayberry has maintained her order not to use the government's computer system for confidential communications until it's fixed. That's caused defense lawyers to have to take extraordinary measures to get anything done.
"It cannot continue in this direction and defense counsel be expected to defend these clients whose lives are on the line," said Lt. Col. Sterling Thomas, counsel for al-Baluchi.
James Harrington, representing Ramzi bin al-Shibh, pleaded with the court to "raise hell" with the officials in charge. "If this were a problem on the prosecution side it would be addressed immediately," he said.
Bormann said she was told on Tuesday that the problem was not likely to be resolved before 2014. Prosecutors couldn't confirm when it would be resolved, but urged the court to proceed with pre-trial motions anyway.
Nevin objected: "It's not just removing fat, it's muscle that has affected our ability to practice law," he said. "And this is a capital case."