Friday, January 30, 2009

Military judge's ruling granting relief due to DOD's computer monitoring policy

Greetings from the Blue Ridge.

Here is a copy of the military judge's ruling in United States v. Behenna granting relief due to attorney-client confidence and work product privilege issues that arise from the DOD computer monitoring policy's application to military defense counsel. The military judge in the case, who I understand to be COL Theodore Dixon, ordered the Government to make a stand-alone unmonitored laptop available to defense counsel. h/t DP

And here's a copy of a motion dealing with this topic that we posted in December.


John O'Connor said...

I'm not reaching a definitive conclusion, but it's not obvious to me that the MJ has the authority to order the government to give someone a laptop computer. My instinct is that the MJ's power instead would be to say he is going to abate the proceedings if the government doesn't (or until the government does) provide a laptop computer.

I'm not sure the MJ has it within his bag of tricks to run the Army and tell the Army what to do. It might be that his sole power is over the proceedings, and to abate them if the government doesn't do what he determines is necessary for a fair trial. Sort of like how Article III courts don't write legislation, they just refuse to enforce legislation that runs afoul of the Constitution.

I fully expect that there are cases in the MJ system where MJs have issued all sorts of similar orders, which to me only begs the question of whether such decisions are correct.

Anonymous said...

OK, it is 2340 of a Friday night, so you know I'm MJW1. That means I need to start this with a “Listen Pal” “Listen Bud” Look Man” or words to that effect.

Any way agree with J O’C (which I seem to be doing a lot these days (although I confess I do not now the man)) that the MJ may have exceeded his inherent authority to make the Govt do something. It seems to me that he can implement many remedial action should the Govt not comply with his rulings, but that is as far as he can take it.

-Wonker 1

Anonymous said...

I'm not sure I agree that the MJ had no authority to order a computer for the defense: it doesn't really seem that different than other types of assistance/support that the defense might ask the court for under RCM 703. Enforcement of the order might become an issue, but that's where abatement or similar remedies would come in.

On these types of assistance/support, though, I wonder why it's the TC/CA that are before the court, and not the defense CO/defense dept head. Why is a secure computer with internet access in these days any different than a desk, paper, or pens were in the past? If the supervisory attorney for defense counsel is failing to provide them what's necessary to do their jobs, how is that the prosecution's fault?

With something as basic as a laptop, I'd have asked my own command to provide it to me, and then brought the motion against it, if it refused. I think it's the only way to begin to confront the real issue underlying Moreno, Rodriguez, et al., which are really all about inadequate resourcing of the defense mission. A judge's order might be just the thing my CO needs to help squeeze a few extra bucks out of his bosses.

Dwight Sullivan said...

0917 Anon,

The only party that the defense counsel could bring the motion against is the United States. I'm sure the defense is indifferent as to what U.S. official is required to remedy the problem. If the U.S. chooses to remedy the problem through its officer and agent the senior D.C., I don't think that's problematic -- anymore than if the U.S. remedies the problem through its officer and agent the military justice officer or SJA.

I agree with your point as to remedy. From reading the transcript, it doesn't seem that the litigation ever reached the "or what" stage. JO'C is no doubt right that the "or what" is abatement. I suspect that everyone understood that what the military judge was really telling the government was that if it wanted to proceed with its prosecution, it had to pony up an unmonitored computer for the military defense counsel's use.

Anonymous said...

I don't disagree that the party would be the "United States", but I don't see any reason why the agent/employee couldn't be a CO of a NLSO, vice a CO of a brig, for example, in a case involving confinement issues.

Mind you, I've never had to resort to a motion/writ against the NLSO/NLSC, but that's because I've had great COs who got it and were willing to play along (and who had good relationships with their RLSO counterparts, who were just as smart and fair).

Still, in one silly but persistently annoying dispute involving transcription of prior sworn testimony (with the RLSO holding the purse strings), the "threat" of a motion/writ, was enough to bring the RLSO to the table and the respective COs were able to hammer out a solution that advanced everyone's interests.

In another, more serious, case a counsel who had been out of Justice School for 2-3 weeks was detailed as sole counsel in a potential capital case. She was then sent out by her CO on the classic "find-an-IMC-in-a-haystack" search. After denials from several NLSOs, she landed on us, and with the "threat" of motion/writ (and collegial discussion with fellow NLSO COs), the original detailing authority was convinced he had an obligation to detail as nearly qualified counsel as he could in the first instance, even before consideration of the accused's IMC rights. That CO was assisted in fulfilling his responsibilities by another NLSO who agreed to assign a more qualified DC ADDU to the first command, for the purposes of the case.

All I'm saying is that counsel -- no matter how much better litigators they believe they are than their bosses -- shouldn't discount their bosses' ability to solve the "military" side of the military justice system equation.

If a NLSO CO (as a senior Naval office in command, albeit of a legal office) can ask public works to fix a clogged toilet, why couldn't he ask a command with IT or medical expertise to send over someone to help DC with a case involving computer or mental health issues -- and without reference to the MCM or resort to legal process?

It's worked for me, and assuming the person doing the assignment is a competent authority to order it, I don't think you'd have any worries under MRE 502. In fact, in most cases where I never brought the assistant to trial, the prosecution never knew I had him.

John O'Connor said...

"The only party that the defense counsel could bring the motion against is the United States. I'm sure the defense is indifferent as to what U.S. official is required to remedy the problem."

I think it would be poor form to issue an order to a regional defense counsel or defense-side official, when the remedy for non-compliance would be abatement. I thionk things are better when the defense side is separated from the obligations on the "government." Heck, we didn't even have the defense counsel run PT at Legal Team Delta. Not a knock on thiose guys, almost all of whom I liked, but the idea was that they were not "The Man."

Dew_Process said...

Understand that the litigation in these cases, primarily has focused on the appropriate "remedy," as the Army has taken the position that a) it's not their policy, but a DoD policy that they MUST follow; b) they did not contest the ethical bind it puts defense counsel in; and c) the Defense could not consistent with Army and DoD regulations, hook up "non-Army" computers to the DoD network.

In both the Fort Campbell and West Point cases, the only issue was the remedy. The MJ at West Point suggested a separate encryption program for the defense, which the Government was investigating when the case got stayed on other grounds, while at Fort Campbell, the government thought the separate computer and non-DoD internet access was appropriate.

As you can see from the MJ's ruling at Fort Campbell, he rejected abatement as an initial remedy, but if necessary, will revisit it.

Anonymous said...


You're right, and I truly am indifferent -- to me, "The Man" is any government official who stands between me and the effective defense of my client.

Anonymous said...

Let me sure I have this right -- to fix this problem, we only need to give the DC's an air card to stick on their laptops. When they want to engage in a/c communications with someone they can't send an encrypted e-mail to, they just unplug from network, fire up the aircard, and e-mail their co-counsel from a gmail or yahoo account. When done with that, they can plug the laptop back into the network and work as normal. If it is this easy, why is everyone fighting about it?