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Friday, January 30, 2009
Fort Campbell ruling on monitoring of defense computers?
I spent the past couple of days at Camp Lejeune where the Regional Defense Counsel, LtCol John Baker, put together an outstanding CLE program. While I was there, I picked up some scuttlebutt that an Army military judge at Fort Campbell has issued a ruling dealing with the application of DOD's computer monitoring policy to military defense counsel. If anyone has a copy of that ruling, could you please throw it over our electronic transom? As always, you can reach us at caaflog@caaflog.com.
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21 comments:
Dwight,
There was no written "ruling" rather it was oral from the Bench. The MJ in essence found the new DoD policy on computer monitoring "troubling" as applied to Defense Counsel and their clients, but held that since it was DoD directed [versus Army], that he had no authority to "order" any specific relief.
He rejected "abatement" as too drastic, but ordered the Army to give the military Defense Counsel new laptops that did not require them to use the military computer networks, and to give the Accused "access" to one as necessary.
Jack Zimmermann, Col, USMCR (ret) and his partner Kyle Sampson, litigated this along with the Detailed Army Counsel. He requested that portion of the Record be done "out of order" for those of us in the middle of litigating this.
Was the MJ COL Ted Dixon?
Rob,
Don't know, but it sounds like a pragmatic ruling that he'd make. Since I posted last, I got a copy of the actual ruling and have forwarded it to Dwight who can post it when he gets a chance.
Please post quickly as the Corps' G-6 weenies have stepped up their effort to cut off the western region's computer access and rumor is some more were cut off today (I think they are scared to take on the eastern region's RDC). Any chance you have the motion that was filed and the gov't response that got the judge to make the ruling?
Anon1840: Email caaflog@caaflog.com - give them your "contact" info and Dwight can forward it to me [he's got my personal email address]. I've got a copy of a virtually identical motion [Jack Zimmermann & I collaborated on them] in a separate pending Army case, with the Government's response and I'll email them to you tomorrow.
Contact Major Munoz - Jack and I have both had contact with him on this.
Anon 0640 (or someone else in the know):
Tell us more. Are we to understand that Western Region defense currently have access to secure computers which the government is taking affirmative steps to remove?
For what it's worth, I'd suggest defense advocates mind your diction: these computers are "unsecured" (in terms of our legitimate legal, professional, and ethical obligations), as opposed to "monitored".
Personally, I think "monitoring" only advances defense arguments on motive/intent and possible remedies -- Think "hall monitor", "recess monitor", "traffic monitor" (OK, you correctly guessed I have kids); still, altogether too benign for my tastes.
Better yet, as to "monitoring", how about "surveilling", "watching over", "snooping"...or, more to the point "investigating" (without reference to a particular subject)?
Isn't that's what is really going on here?
The application of the program leaves too much discretion in the network administrators. E.g., the network can be programmed to "flag" any email with an attachment of X KB or greater, which is then personally looked at by the administrator or just automatically deleted.
That is the crux of the ethical problem - knowing that there is not even a reasonable probability that the email communications are "private," precludes in most States, the use of that as a medium of communication involving privileged material.
In the Fort Campbell case, both military defense counsel are deployed to Iraq, both civilian counsel are from Texas, and the Accused is at Fort Campbell, virtually mandating email as the most efficient communication means.
According to the tech people we consulted with, there are a number of "easy" fixes that could be applied for defense counsel, while protecting the network from cyber-attacks, monitoring for abuse, etc.
We attempted to work with the DoD General Counsel's office, since last July, to include specifically a conference call with the Acting DoD GC. Their response - to the extent one can deem it one - was that the policy will remain "as is," hence the litigation.
Dew,
I'd be interested in knowing more about the "easy" fixes suggested by your tech people.
Two were supposedly "no brainers." First, give the defense specific encryption programs, which would obviate the lack of privacy issue. The other one was to have a distinctive system, say John.Jones@defensecounsel.mil and then the policy for monitoring would be that those emails - to and from - could only be monitored if there was a probable cause finding, similar to "searching" defense counsels' offices etc.
Dew,
Many thanks -- It only confirms my suspicions that this would be utterly a non-issue if the government would simply acknowledge and address the legitmate concerns of defense, and that the legitimate interests of the government can indeed be preserved without intrusion upon the substantive rights of the accused.
Tempest in a teapot...this DoD policy will have zero, and I mean zero, practical effect on the defense function. Why? B/c any defense counsel worth his salt does not put anything that even sniffs "sensitive" in writing...period.
So, what's the consensus: Is the government evil or just plain stupid?
I vote for neither: I think it's institutional PTSD from CAAF's decision in Long.
There's nothing wrong that a return to the pre-Long DoD system banner notice wouldn't cure.
ANON 2128 - You obviously aren't a defense counsel dealing with co-counsel thousands of miles away, with perhaps a client still elsewhere. Check out your State Bar's rules for using email.
It's a major problem because it's a fact of life that you need to communicate with co-counsel, and where telephonic communications are not reliable and you're trying to deal with draft pleadings or plea discussions, sometimes there are no other options.
You don't put anything in writing IF it's subject to monitoring, but then it becomes an issue of communicating with your co-counsel and client, and whether you can render effective assistance under those circumstances.
Sure it's not going to happen in a routine barracks theft case, but get a high-profile homicide or espionage case, and it's a foregone conclusion. I've had Trial Counsel admit on the record that they were monitoring defense emails.
Dew,
I'm curious about your final statement that you've had "Trial Counsel admit on the record that they were monitoring defense e-mails."
More details please. I find this statement provocative and extremely troubling. So troubling that I purposefully sent this post anonymously.
Sad but true ANON 0953:
AF espionage case that started out with "capital" noises eminating loudly from the SJA's office. My 2 Detailed counsel were at considerable distances and time-zones from me. We got suspicious when we were exchanging emails about contesting the classification of something that was improperly classified, but relatively benign. It was something that had never come up before either on the record or in pleadings. That was at about 2100 one evening. Strangely, at 0845 the next morning, Trial Counsel sent an email saying that the document was being declassified, even though our Motion had yet to be filed.
We then laid a trap by discussing via email by inventing a "recantation" by one of the government's chief witnesses. Within hours, the witness was summoned to the Trial Counsel's office.
We then moved for sanctions and a protective order. That's when the gov't said that a) there was no defense "expectation of privacy" in intra-defense communications, due to the "banner" saying one consented to monitoring; b) that they had and would monitor material going through government servers, to include Defense communications; and c) refused to answer the MJ's question as to whether they had indeed read the 2 emails in question on the grounds of "privilege."
The MJ declined to order relief or sanctions, claiming that she had no control over that, but that if the Government "used" anything from our emails, she would entertain a Motion for Appropriate Relief.
We had no choice but to use email, because of both the distance and the fact that the Defense didn't have a reliable, dedicated FAX line. We found a "self-help" fix that cost us each about $30.00, and never told the computer techies what we had done.
We filed a complaint later with the TJAG ethics committee, which went no where, except to the DoD GC's office, which prompted the latest bit of insanity.
Oh yeah, they also seized a Defense laptop at one point, where the MJ did intervene and ordered another MJ to screen the hard-drive to remove all privileged defense material before releasing it to the OSI agents and TC. It was clean as we said it was, only that caused a months worth of litigation.
Outrageous -- even under the DoD policy, this is prosecutorial misconduct.
Surprised you did not file a complaint with the respective State Bar for the TC/COJ/SJA.
Well, we sought "guidance" from our respective Bars, who said a) don't use government email unless you can insure it's secure; and b) the "Banner" notice makes it "your" [meaning our] problem.
Hence, our concern over the current, new DoD process, and why we've been tilting the windmills.
We had numerous other ethical problems with Brady material, which did result in ethics "referrals."
Dew,
Sounds like a fun and fair crim law shop you had to deal with.
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