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MIAMI — The lawyer for a man accused in an attack on a U.S. warship said Wednesday that a Pentagon computer server failure resulted in the loss of a large cache of documents used by military tribunal defense lawyers.
Richard Kammen, a member of the team representing an alleged senior al-Qaida figure facing a war crimes tribunal at the U.S. base in Guantanamo Bay, Cuba, also said officials mishandled more than 500,000 defense lawyer emails and appear to be monitoring their Internet searches as they prepare their cases.
Kammen, an Indianapolis defense lawyer appointed to defend Abd al-Rahim al-Nashiri, has urged a military lawyer to cancel a hearing at Guantanamo next week because of the alleged breaches of attorney-client privilege and the server failure.
The motion remains under seal until authorities review it for potential classified information. The lawyer said in an interview that the court needs to establish the extent of any breach of the attorney-client privilege.
"We want to put the case on hold number one to find the scope of the intrusions," he said. "Was this the product of negligence or something worse? Also, we need to have the problem fixed."
A Defense Department spokesman, Army Lt. Col. Joseph Todd Breasseale, declined comment because the defense allegations are the subject of active litigation.
A response by prosecutors has not yet been posted by the Office of Military Commissions, which is in charge of the Guantanamo tribunals.
This is not the first time that tribunal defense teams have alleged improper monitoring. In February, proceedings in the case of five men charged in the Sept. 11 attacks were thrown into disarray after lawyers discovered microphones apparently disguised to look like smoke detectors in the rooms where they meet their clients.
The military said it would disconnect the devices but said they had not been used to eavesdrop or record meetings between prisoners and their lawyers.
Kammen said he was uncertain when the server failure occurred, but said it involved about 7 gigabytes of data, or many thousands of pages of documents. He said information pertaining to his case that was recovered but the defense teams still needs time to review the files to make it's all still there and nothing has been changed.
The emails were turned over to the prosecutors by mistake after the Court of Military Commissions Review asked for certain emails from the prosecution and received hundreds of thousands from the defense as well, Kammen said. The defense cannot prepare their case if they suspect their work is being monitored by the prosecution, he added.
A judge has scheduled a four-day pretrial motions hearing to start Monday at Guantanamo for al-Nashiri, who faces charges that include terrorism and murder for allegedly setting up the 2000 attack on the USS Cole which killed 17 crew members and wounded 37. It was not clear when he would rule on the request to delay the proceedings.
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