The judge in the Guantanamo war crimes tribunal recessed a weeklong hearing in the Sept. 11 conspiracy case on Friday evening without ruling on a defense request to halt future hearings until Pentagon computer problems are fixed.
The judge, Army Colonel James Pohl, said he would issue a decision "in due course." The next pretrial hearing in the death penalty case against five suspected al Qaeda conspirators is scheduled to start on Oct. 22 at the Guantanamo Bay U.S. Naval Base in Cuba.
The chief defense counsel for the war crimes tribunal testified this week that using the Wi-Fi connection at Starbucks was a better bet than risking putting confidential defense documents on a glitch-prone Pentagon computer network.
Defense lawyers said their work files had been lost or altered, their emails had been disrupted and that outside monitors had access to documents the lawyers are ethically bound to keep confidential.
"My request is that we stop until we have a computer system that works and that functions and that you not force us to go forward with one hand tied behind our back. It's not fair, it's too big a case," said attorney David Nevin, who represents the alleged mastermind of the hijacked planes plot, Khalid Sheikh Mohammed. "We cannot practice law under the way the system operates now."
Network security issues dominated the hearing for the five defendants, who could be executed if convicted of conspiring with al-Qaeda to hijack commercial jetliners and murder 2,976 people on Sept. 11, 2001.
The chief defense lawyer ordered the defense teams in April to stop putting confidential documents on their military computer system. They have since been loading documents on government-issued external hard drives, transferring them to their personal laptops and filing them via public Wi-Fi at coffee shops near their Washington-area offices.
The Defense Department's chief information officer, Ronald Bechtold, said that "Starbucks solution" could allow malware to be introduced into the Pentagon network when the external drives were reconnected to the system.
"I consider that frankly very, very risky behavior, in fact bordering on reckless," Bechtold said.
The judge seemed to agree, telling the defense lawyers, "Your work-around system is less secure than the system you rejected."
Technical experts testified that some of the problems stemmed from a switch in email systems. Others were blamed on an attempt to replicate lawyers' work on two separate networks, one in the Washington area and one at the Guantanamo base.
Bechtold described in sometimes minute detail what had gone wrong, blaming a combination of human error, miscommunication and intermittently failing hardware that had since been replaced.
Technical teams have proposed fixes that could take until early next year to complete. They would involve isolating defense data on separate servers and giving them technicians with the expertise to audit the file logs and verify who had access. The latter would be sworn to keep the defense work secret.
Bechtold said he had only begun to understand some of the problems when he visited the remote Guantanamo base this week.
"My experience down here this week has opened my eyes to some things," he said.
Prosecutor Ed Ryan urged the judge to let the hearings go forward to deal with motions filed before the network problems surfaced early this year. He accused the defense of trying to "hold this case hostage."