Saturday, May 31, 2008

NACDL resolution on monitoring of military defense counsel's computers

NIMJ's web site reports that the "Executive Committee of the National Association of Criminal Defense Lawyers has [unanimously] adopted a resolution calling on the Secretary of Defense to rescind the Department's May 9, 2008 policy on use of DoD information systems (Standard Consent Banner and User Agreement)." The full report and resolution are available on NIMJ's web site here. Here's the resolution in full:

WHEREAS the Executive Committee of the National Association of Criminal Defense Lawyers is aware that on May 9, 2008 the Department of Defense promulgated a directive, titled, "Policy on Use of Department of Defense (DoD) Information Systems - Standard Consent Banner and User Agreement," and

WHEREAS this directive requires military defense counsel, as a precondition to being able to log onto a government-provided computer, to consent to the interception, monitoring, and searching by law enforcement governmental authorities of attorney-client privileged information stored on government-provided computers, and

WHEREAS prohibiting the "use" of such intercepted privileged material does not cure the forced violation of the attorney-client privilege and attorney work-product privilege by the government’s improper interception, monitoring, or searching, and

WHEREAS this directive strikes at the core of the American adversary system of criminal justice by hampering and chilling military defense counsel in the effective performance of their duty, and denies their clients the right to effective assistance of counsel, and

WHEREAS this directive destroys any confidence among all of our military personnel accused of crime that their communications with counsel and the work product of counsel are protected from warrantless intrusion by governmental authorities, including prosecutors and law enforcement,

THEREFORE BE IT RESOLVED that the National Association of Criminal Defense Lawyers calls on the Secretary of Defense to rescind the May 9, 2008 directive and provide a revised directive policy that prohibits the warrantless monitoring or searching of all government-provided computers of military defense counsel, and prohibits the interception and seizure of all attorney-client privileged information, as well as the use of such information, in the military justice system or for any adverse administrative or personnel actions.
We have previously discussed this issue, including here, here, here, and (somewhat tangentially) here.


Anonymous said...

Interesting. A proactive and visionary stance. I am glad some people are not waiting for the possibility of a dumb, zealous government agent to use defense emails. I am not confident at all by the "Iraqis will greet us with rose petals"-type assurances we have gotten that defense electronic correspondence is safe.

At the time the policy was promulgated, I suggested that the Appellate Defense Divisions should work together on issues like this. One response, probably from an insider - based on its defensive tone - was "we don't need to waste our time."

I think the time would be well-invested.

Anonymous said...

As a military defense counsel I can tell you tha no one is "chilled" by the banner. It has never, and will never, be used against a client at court-martial. (And those in GTMO aren't emailing their lawyers.) So it is a pointless exercise. NIMJ could better spend its energy elsewhere.

Anonymous said...

our system has consistently fought against a perception of partiality and pro-government bias and policies such as this should frustrate every mil justice practitioner who otherwise understand how well our system functions. If you are defense attorney and not concerned, a call to your state bar ethics advisory office might change your mind.

CAAFlog said...

0740 Anon -- the resolution was by NACDL, not NIMJ. I was providing NIMJ with a hat tip because NIMJ reported on the NACLD resolution on its web site and I wouldn't have known about it but for NIMJ.

That said, I agree with 1046 Anon. I don't think this is a tempest in a teapot either. As the report accompanying the NACDL resolution argues, a privilege can be compromised without the actual evidentiary use of the communications.

When you think about what the banner actually says, it doesn't make a great deal of sense. The banner says that the United States Government routinely intercepts and monitors communications. If true, then someone somewhere sometimes accesses what is on our computer screens or in our shared drives. Until that person actually reads the content of an e-mail or memorandum for record (which the disclaimer suggests actually does occur), then the monitor doesn't know it's privileged. So while the disclaimer says the defense counsel doesn't consent to the monitoring of privileged communications, the disclaimer indicates that the defense counsel should be aware that such monitoring occurs despite the lack of consent. One of the points of NACDL's resolution is that the privilege may not survive if the DC is aware of such a lack of confidentiality.

I previously provided some cites that suggest that the privilege may in fact survive. But as 1046 Anon points out, it's hardly a slam dunk. I am certainly concerned about it and will certainly conduct further legal research on the question at the end of the week when I return from TDY.