Lawyers fret over military computer snooping
By: TERI FIGUEROA - Staff Writer
Defense counselors concerned policy jeopardizes attorney-client privilege | ∞
NORTH COUNTY ---- Recent warnings on Marine Corps computers telling users that government agents can dig through and seize anything found on the machine have rippled through the military defense community, causing attorneys to worry about protecting the privacy rights of their clients.
The new warnings appeared for about three weeks in December before reportedly being removed late last week. And though the warning may have stopped flashing across their monitors, defense attorneys' concerns are blinking red.
Lawyers representing defendants in the military justice system, including Marines facing war crimes trials in the deaths of Iraqis, say the government's right to read their correspondence and see their work jeopardizes the attorney-client privilege central to a robust defense.
"We don't feel secure about anything we do at our computer work stations," said Lt. Col. Colby Vokey, the man in charge of all Marine Corps defense attorneys in the western United States. "We can't even function."
Vokey said the broader policy is having a "chilling effect" on legal defense work, and he has warned those under his charge to beware of what they type.
"We have to start asking questions about what are they looking at, who they are the looking at," Vokey said. "We want to know who is looking at us and why."
Fair warning?
In recent years, military defense lawyers have battled to protect attorney-client privilege, including a series of widely publicized ---- and criticized ---- proposals to restrict communications between attorneys and their detainee clients at Guantanamo Bay.
With the new computer warning, anyone who uses a military computer must agree to let the government look at and take whatever it wants from military computers ---- including sensitive materials and communications found on the machines used by military defense attorneys representing service personnel accused of crimes.
The first words on the screen that computer users see when they start the machines state that law enforcement agents can search and seize whatever they desire ---- for any reason or none at all.
The concern over protecting sensitive material has made its way into the case of a junior Marine facing trial on charges that he negligently killed Iraqis in the town of Haditha in 2005. Attorneys for Lance Cpl. Stephen B. Tatum asked the court two weeks ago to find that the search and seizure policy violates Tatum's rights.
"How would we know if we are being surreptitiously searched?" Tatum's civilian defense attorney Jack Zimmermann argued in a military courtroom earlier this month.
Military and civilian
As a defendant in military court, Tatum has military defense attorneys assigned to represent him. He has also hired Zimmermann to work in concert with his military attorneys; most defendants in recent war crimes trials at Camp Pendleton have had civilian and military attorneys.
Zimmermann said in court that the policy has hamstrung his defense of Tatum, and it hampers his communications with the two military attorneys on the defense team for the 26-year-old Oklahoma native.
Zimmermann's personal computer is free from warrantless government search and seizure, but he said he worries that his e-mail messages and other data sent electronically to the military defense attorneys will be seen by government agents.
He said he is also worried about the confidentiality of work done by Tatum's military attorneys.
Repeated calls to Marine Corps officials at the Pentagon have gone unreturned.
The confidentiality of private communications between attorneys and their clients is a basic tenet of the legal system in both military and civilian courts. And that secrecy extends to all work an attorney does on behalf of a client.
"Simply by using the computer," Vokey said, "you are almost violating the state and military ethics rules on confidentiality."
How high a hurdle?
The government has always had the ability to look at anything on a government computer, said David M. Brahms, a retired general who once served as the legal adviser to the commandant of the Marine Corps. But, he said, the policy is broader now and made more clear to every computer user.
"I don't see anything cosmic," said Brahms, now a Carlsbad attorney. "Whether it is good or bad, it doesn't make a difference. The defense counsel is now on notice that there might be some access to work product. ... I think it's a pain in the ass, and lawyers recoil, but basically it is their responsibility (to keep sensitive communications off military computers)."
Zimmermann, however, has argued that the policy is "unethical" and "illegal."
"Some NCIS (Naval Criminal Investigative Service) agent may want to know what Tatum's attorneys are doing," Zimmermann said. He added that an agent would have every right to search the defense lawyer computers ---- and to do so remotely, without the attorneys ever realizing it.
Zimmermann's client, Tatum, has been charged with involuntary manslaughter in the shooting deaths of two children in a Haditha home. Tatum, who also is charged with aggravated assault and reckless endangerment, has not yet entered a plea.
Zimmermann asked the judge, Lt. Col. Eugene Robinson, to find that the search and seizure policy violates Tatum's rights.
"You have to do something as the judiciary," Zimmermann said to Robinson. "All we can do is complain."
In court, Robinson countered that the defense attorneys don't have to use computers and e-mail, but can rely on fax machines, phone calls and mail to get the job done.
"It would put us on unequal grounds, not being able to use modern assets," Vokey said Friday.
Expectation of privacy
Defense attorneys said the banner warning policy comes as a sweeping and overbroad response to a ruling from the Court of Appeals of the Armed Forces ---- the military equivalent to the Supreme Court ---- after the military high court overturned the conviction of a lance corporal on drug charges.
The lance corporal had allegedly sent ---- from her military computer ---- e-mails detailing her drug use and how she planned to evade detection in a drug test. The e-mails were admitted at her court-martial.
The court of appeals found the e-mails were not admissible at trial. The lance corporal, the court found, had an expectation of privacy on the military computer, because the military had not notified her that her computer could be searched.
The Fourth Amendment protects people, including service members, from unreasonable search and seizure.
Contact staff writer Teri Figueroa at (760) 631-6624 or tfigueroa@nctimes.com.
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Skip wrote on Dec 31, 2007 11:26 PM:When ever you log into a military computer, the first thing you see is that you have no guarantee of privacy. I thought it has always been that way.
mark wrote on Dec 31, 2007 11:29 PM:Military justice, already an oxymoron, gets another monkey wrench thrown into the wheel.
Jarhead wrote on Jan 1, 2008 1:20 AM:Government owns the computer. Government gets to do whatever it wants with its computer. There's no privacy because it's not yours. Same with using a Government phone. It's subject to monitoring at anytime.
John wrote on Jan 1, 2008 5:16 AM:LtCol Vokey is full of it. I know him personally and I also know that he can and does function like everyone in the military. He also knows that an NCIS agent or anyone else can't just go snooping around. In order to get into someone's government computer they have to get the Commander's authorization to do so. The Commander in turn is gonna have to have a very good reason to authorize it. The policy has always been thus.
Mark, shut up. You obviously have know experience with military justice.
mark wrote on Jan 1, 2008 8:05 AM: I think it's a pain in the ass, and lawyers recoil, but basically it is their responsibility (to keep sensitive communications off military computers)." But it kind of puts the lie to the Marine Corps claim that they can provide the accused with a vigorous defence. Skip, the Court of Appeals of the Armed Forces disagreed with your belief that it has always been that way.
What? wrote on Jan 1, 2008 11:09 AM:This is nutz. The PC belongs to the goverment and they can do what ever they like with it and it's contents. The lance corporals conviction should of stood. If you want privacy use your own PC. However once a criminal proceeding begins then the def lawyers communication with their client should be privliged. What's so complicated about this?
mark wrote on Jan 1, 2008 2:18 PM:There are two conflicting ideas here. The PC belongs to the government and they can do what they, who are they by the way?, Like. And the FACT that the UCMJ follows the Constitution and requires that attorney client privilege be protected. Stop you knees from jerking for a second and listen carefully. One can assume that the military has the right to place listening devises and or cameras anywhere in the Brig they like, for safety reasons, it is after all the governments Brig. They may NOT use them to listen in or record conversations between defence attorneys and their clients. You got a problem with that, GET OVER IT!
McCarthyism wrote on Jan 1, 2008 3:43 PM:American citizens are being spied upon by this dangerous neocon administration so why not the military?
AW4cryinoutloud wrote on Jan 1, 2008 3:55 PM:To Mark: I have a Big probem with it, will not 'get over it', and you shouldn't get over an injustice either. Your knee 'should' be jerking, because if you think the UCMJ or the government follows the Constitution you're living a fantasy. Every Constitutional right supposedly granted to an accused has been denied many convicted Marines and Soldiers. IF the government was truly concerned with protecting the rights of the accused, then it would audio or video tape NCIS interrogations of the accused. Actually! The Pendleton 8 were NOT accused in Iraq, yet Were denied their Constitutional rights. Interrogations 'without' being audio or video taped; would have proven what methods were or were not used by NCIS. Without ever being accused, and 'supposedly presumed innocent', the Pendleton 8 were imprisoned; also unnecessarily and inhumanely shackled for three weeks of that imprisonment. How in the world can you say that either the UCMJ or the government follows the Constitution? You might re-read the Constitution and learn more of the mistreatment of all of these Marines. As for being the government's Brig; taxpayer dollars pay for that Brig, and taxpayers don't want to pay to see their troops coerced and harrassed. They want their fellow countrymen afforded the rights granted ALL Americans by the Constitution. If you believe the government doesn't take full advantage of every phone call, conversation, or letter of it's unjustly incarcerated residents you have no business telling anyone who knows better to get over it. Injustice isn't like a cold you 'get over'. Injustice is something one should NEVER Get Over!!!
Title too much wrote on Jan 1, 2008 5:37 PM:"Lawyers Fret" would have been good enough. Thats what they do.
mark wrote on Jan 1, 2008 6:50 PM:I know everyone hates lawyers until you need one. lol
Vista Resident wrote on Jan 1, 2008 7:17 PM:Fret is a loaded word. Lawyers do their best to defend. Referring to that as fretting is disrespectful.
All workers these days should be aware that their work on an employer's PC is not private. And, I assume that all emails from any PC are not private. Emails are stored on servers and transmitted in a way that may be observed by in transit with snooping hardware. In addition, emails may be saved forever from one or more servers. I try to never email something that I would not want to find published in the paper. Probably one of the reasons for the notice is to make military personnel more aware of this fact. The abuse pictures in Iraq were circulated widely via email between service personnel, as I recall. I'm sure that our government doesn't want another repeat of something like that.
Attorney Client Privelege wrote on Jan 1, 2008 9:20 PM:IT is settled law that communications between an attorney and his client are priveleged. They can not be read by the goverment or anyone else. So a military lawyer has to do all his communications on his personal computer at home. That does not seem fair. But I guess that is what you get for being dumb enough to enlist in Dubyas war.
A Marine wrote on Jan 2, 2008 5:41 PM:Be aware this discussion is about two very different, but related issues. Both have to do with the privacy of information on an electronic medium. Attorney/Client communications must be private, just as doctor/patient and preist/penitent communications should be, though there are some limits (e.g., information that pertains to a credible threat to human life and the like). No computer communication is perfectly secure, hovever, so even a legal expectation of privacy (wherever it's decided there is such a thing) doesn't stop unscrupulous individuals or organizations from spying. While an NCIS agent couldn't use such information as evidence, there are times when they must review information that may contain a credible threat to human safety. Privacy vs. safety - it's a trade-off, and not just with government computers. Governments and organizations have to decide how much risk to their safety is worth the privacy it offers. Aren't you glad you live where you can debate where you want to be in that trade-off?
ticked wrote on Jan 2, 2008 8:14 PM:Why is it that a military service member isn't even garanteed the same rights afforded to that of a civilian? Most military service members can only afford a military lawyer - the military lawyer is paid to work for the military in their office using their office equipment. Now, we're saying that they can't even use their own office equipment because they will be monitored, so when the government says that they will provide legal defense, are they really providing it? When the government with unlimited resources enlists the help of NCIS, numerous lawyers and then are able to read attorney-client e-mails - well I guess it just goes to show that the poor, underfunded military service member is destined to lose; classic David vs. Goliath. Let's start looking out for the service members - I am all for protecting our nation but a military service member fighting to prove their innocence doesn't need to have all the cards stacked up against them. Just my thoughts.
Wrong wrote on Jan 12, 2008 10:02 PM:The government cannot do whatever it wants with government computers in cases that involve government investigations. It is illegal, for example, for the government to monitor the communications of investigating attorneys or auditors with the intent of chilling an investigation. The foundations of our justice system -- and the correct legal answers -- lie beneath the basics of who owns the computer systems. What defines American government is the people's right to question it.
to AW4 wrote on Jan 12, 2008 10:08 PM:The Pendleton 8 were treated like heroes even though most admitted that they entered a home, dragged an innocent man out of bed, shot him and staged the scene to cover it up. These are the facts, and they are not in dispute. Almost all of the 8 are out of jail. It is terrible that they were in such a situation, especially the most junior ones. But don't ask me to have sympathy for the way these men were treated. If there was injustice, it was that they were put in such an awful place with such a thankless job. But killing someone for no reason and then covering it up was not part of that job, and justice was applied with careful measure to their cases. None got the maximum sentence, and none got off. Fair is fair.
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