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
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