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.