The lawyers’ reason is twofold, apparently: first, a possible lapse in the security of computer networks operated by military commission defense counsel; and second, the disclosure of privileged defense emails to prosecutors by court security personnel.
James Connell III, an attorney for 9/11 accused Ammar al-Baluchi, explained the pause request in a statement released earlier today. Note that in the statement’s final paragraph, he attributes the continuance order in Al-Nasihiri to similar defense fears, in that case, about the compromise of confidential information:
Today, military commissions defense counsel filed a handwritten emergency motion to pause proceedings in the 9/11 trial after revelations that defense email communications and computer files have been compromised. Hearings in the case against Khalid Sheikh Mohammed and his accused co-conspirators are set to resume on April 22, 2013. The attorneys seek the pause, called an abatement, after the Chief Defense Counsel ordered defense counsel not to use DOD computers for privileged or confidential information.
“Is there any security for defense attorney information?”, asks James Connell, attorney for Ammar al Baluchi. “This new disclosure is simply the latest in a series of revelations of courtroom monitoring, hidden surveillance devices, and legal bin searches.”
On April 10, Air Force Colonel Karen Mayberry, Chief Defense Counsel, issued an order instructing members of the defense office to cease conducting all privileged and confidential work on the Department of Defense network, until the security of this information can be assured. This prohibition is in effect until further notice.
This policy follows repeated losses of attorney files due to purported upgrades to the network. The issue finally came to a head when it was discovered during an appeal in the al Qosi case, currently before the Court of Military Commission Review (CMCR), that privileged defense counsel emails were disclosed to the prosecution by the DOD office in charge of information security.
Military Judge Pohl has already granted a defense continuance in the USS Cole case as a result of these revelations.
The 9/11 case’s docket reflects neither the filing of the defense’s abatement request, nor the filing of a prosecution response.
Will looming hearings in both capital commission cases be postponed? Stay tuned.