Thursday, January 3, 2008
In United States v. Long, 64 M.J. 57 (U.S. Armed Forces 2006), the United States Court of Appeals for the Armed Forces reversed a lance corporal's convictions for the use of ecstasy, ketamine, and marijuana. The basis for reversal was the fact that the government retrieved from the lance corporal's military computer e-mails where she detailed her drug use and how she planned to evade detection in a drug test. On appeal, she argued that the retrieval and admission of these e-mails violated her rights under the Fourth Amendment because she had a subjective expectation of privacy in these e-mails that was objectively reasonable. The Court of Appeals for the Armed Forces agreed, in part based upon its finding that the military had not adequately notified her that her military computer could be searched.
A fast forward to last month lets us see the military's Orwellian response to this opinion. For three weeks in December, the Marine Corps put warnings on military computers telling users that government agents can dig through and seize anything found on the machine. While these warnings have since been removed, their message appears to accurately reflect the present Marine Corps policy that anything done on a military computer is fair game for a search, which can be performed without even notifying the defendant or his attorney. This policy not only means that service men and women need to be wary of what they do on military computers, but also that the relationship between their military attorneys and them has been put at risk.
To wit, Stephen B. Tatum is currently facing trial on charges that he negligently killed Iraqis in the town of Haditha in 2005. Tatum has military defenswe attorneys assigned to represent him, and he also hired civilian defense attorney Jack Zimmerman to work in concert with them. Zimmerman argued before the military judge hearing Tatum's case, Lt. Col. Eugene Robinson, that the Marine Corps policy jeopardizes the attorney-client privilege central to a robust defense. Tatum painted a scenario where an NCIS agent could want to know what Tatum's attorneys were doing and, under the Marine Corps policy, would have every right to search the military defense attorneys' computers, and do so remotely, without the attorneys ever realizing it.
Robinson rejected this argument, finding that the defense attorneys didn't have to use computers and e-mails, but instead could rely on fax machines, phone calls, and snail mail. In response to the ruling, Lt. Col. Colby Vokey, the man in charge of all Marine Corps defense attorneys in the western United States, argued that Robinson's decision puts military defense attorneys on unequal grounds because they can't use modern assets.
I strongly disagree with Robinson's decision and agree with the arguments of Zimmerman and Volkey. A military accused has a right to the effective assistance of counsel under both the Sixth Amendment to the Constitution and Article 7, UCMJ, 10 U.S.C. Section 827. See United States v. Hicks, 47 M.J. 90, 92 (U.S. Armed Forces 2006). Under Marine Corps policy, however, military defense attorneys would seem to be hamstrung, precluding the effective assistance of counsel. Robinson's decision seemed only to touch the tip of the iceberg of the problem. Maybe, as Robinson notes, being forced to use faxes, phone calls and snail mail in lieu of e-mails is not horribly inconvenient (although I'm sure many would disagree).
But how are these attorneys supposed to do their research? Surely, they can't use online sites like Westlaw or Lexis because the government could track their searches. This would mean that they would have to rely solely on hardbound editions, putting them at a severe disadvantage vis a vis their adversaries. And how are these attorneys supposed to prepare their motions and briefs? Surely, they can't use Word or Word Perfect because the government could open these documents. This would presumably mean that these documents would need to be prepared in longhand or by typewriter, again disadvanting defense counsel and preventing the effective assistance of counsel. These and many other concerns, including the stated concerns about confidentiality, make the Marince Corps policy pernicious and likely unconstitutional.