all times be protected from seizure or inspection of their content,1053 and defendants should be allowed to correspond with their legal counsel confidentially.1054 404. Reports further indicate that several IT-related failures imperilled the confidentiality of communications in 2012-2013. In one particular case, internal defence emails were disclosed by IT technicians to the prosecution following overly broad searches of archive electronic communications which mistakenly included results from defence email mailboxes – instead of being limited to prosecutors’ email mailboxes.1055 In this regard, ODIHR notes the Chief Prosecutor’s assurances that attorneys in his office fully respect the attorney-client privilege, and that “[a]t no time did any prosecutor actually view the content of any privileged defense communications”.1056 In another instance, a folder containing emails of a former trial counsel was reportedly “available to the Office of the Chief Defense counsel personnel on the Defense computer ‘shared drive’”.1057 The Office of Defence Counsel subsequently took steps to disable that access without viewing content.1058 While some of the IT-related failures were the result of human errors and reportedly did not lead to a violation of the confidentiality of communications, the mere ability of one party to access electronic communication of the adverse party is of concern. Additionally, ODIHR notes that measures taken by defence counsel to mitigate the risk of improper disclosure following IT-related failures, which included not using their email system until it was secure, placed an extra-burden on their ability to prepare the defence of the accused.1059 Colonel Karen Mayberry, the then-Chief Defense Counsel, testified in September 2013 that over the eight or nine months preceding her testimony, the time 1053 UN Special Rapporteur on the Independence of Judges and Lawyers, Report to the General Assembly, A/64/181, op. cit., note 954, para. 110(b). 1054 See, for instance, UN Special Procedures of the Human Rights Council, Letter to the United States, USA 31/2012, 30 November 2012, p. 3, <https://spdb.ohchr.org/hrdb/22nd/public_-_UA_USA_30.11.12_(31.2012).pdf>. 1055 This disclosure occurred in appellate proceedings in the al-Qosi case. The searches resulted in over 500,000 hits. The exact number of emails delivered to the prosecution is unknown. United States Military Commission, United States of America v. AlNashiri, “Unofficial/unauthenticated transcript of the hearing dated 6/12/2013 from 10:51 AM to 12:13 PM”, pp. 2042-2247; United States Military Commission, United States of America v. Mohammad et al., AE 154, “Government Notice of Events Related to Protection of Privileged Materials”, 8 April 2013, pp. 1-3; “Requests to Improve the Conditions of Confinement in Guantánamo”, Office of the Chief Defense Counsel, op. cit., note 424, p. 5. 1056 Chief Prosecutor Brigadier General Mark Martins, “Chief Prosecutor Mark Martins Remarks at Guantanamo Bay”, 10 June 2013, pp. 2-3, <http://www.lawfareblog.com/wp-content/uploads/2013/06/Chief-Prosecutor-Statement-10-June-2013.pdf>. 1057 United States Military Commission, United States of America v. Mohammad et al., AE 154, op. cit., note 1055, p. 3. 1058 Ibid. 1059 United States Military Commission, United States of America v. Mohammad et al., “Unofficial/unauthenticated transcript of the hearing dated 9/18/2013 from 11:06 AM to 12:47 PM”, pp. 5426-5428; Wells Bennett, “9/18 Session # 3: More Mayberry”, Lawfare website, 18 September 2013, <http://www.lawfareblog.com/2013/09/918-session-3-more-mayberry/>; Wells Bennett, “9/18 Session #2: the Chief Defense Counsel on IT”, Lawfare website, 18 September 2013, <http://www.lawfareblog.com/2013/09/918-session-2-the-chief-defense-counsel-on-it/>; Natalie Salvaggio, “The continued abrogation of due process and fair trials (military commissions perspective)”, The Champion, July 2013, <https://www.nacdl.org/champion.aspx?id=29519>. In this regard, ODIHR takes note of the military judge’s conclusion that “[n]o evidence supports the Accuseds’ concern [that] the purported loss of data or problems with communication were the result of any attempt by the Prosecution or DoD to compromise Defense files or encumber Defense efforts to represent their respective clients.” In 2015, the judge denied a defence motion to reconsider this ruling. United States Military Commission, United States of America v. Mohammad et al., AE 155II, “Order – Joint Defense Motion to Abate Proceedings and Renew Defense Motions AE 155”, 1 October 2013; Chief Prosecutor Brigadier General Mark Martins, “Chief Prosecutor Mark Martins Remarks at Guantanamo Bay”, 19 July 2015, op. cit., note 929, p. 4. 179