v. Government Notice Of Events Related to Protection of ...lawfare.s3-us-west-2.amazonaws.com/staging/s3fs-public/uploads/2… · th is instruction, OCP counsel and their paralegal

UNCLASSIFIEDIIFOR PUBLIC RELEASE

MILITARY COMMISSIONS TRIAL JUDICIARY GUANTANAMO BA Y, CUBA

UNITED STATES OF AMERICA

v.

KHALID SHAIKH MOHAMMAD, WALID MUHAMMAD SALIH

MUBARAK BIN ATTASH, RAMZI BlNALSHmH, ALI ABDUL AZIZ ALI,

MUSTAFA AHMED ADAM AL HAWSAWI

Notice

AE 154

Government Notice Of Events Related to Protect ion of

Privileged Materials

8 April 2013

The Government hereby not ifies thjs Commiss ion of recent matters that have ari sen in a case pending before the U.S . Court of Mili tary Commiss ion Review ("U.S.CM.C.R.") as set forth in more detail in Attachment A, wh ich is a recent fi ling by OCP before U.S.CM.C.R.

Recently, in the context of a pet ition for extraordinary relief filed in U.S.CM .C.R. on behalf of Mr. Ibrah im Ahmed Mahmoud a1 Qosi, that Court ordered the government to produce "copies of any communicat ions, or records thereof, between the Government, and the Petitioner or any member of the Pet itioner's tria l defense team or Appellate Defense Counsel regarding waiver or withdrawal of appellate review, not otherwise inc luded in the authenticated Record of Trial, and occurring during the per iod August 10, 2010 through February 12, 20 13." Ibrahim Ahmed Mahmoud al Qosi v. United States, No. 13-00 1, Order (U.S .C.M.C.R. Feb. 12,20 13) .

To comply with the Court order, counsel in the Office of the Chief Prosecutor ("OCP") asked the Enterprise Informat ion Technology Services Directorate ("ElTSD") of the Washington Headquarters Service ("WHS"), via the Security Manager then located in the Office of the Convening Authority ("OMC-CA") t, to perform a search of archived electronic communicat ions of three OCP prosecutors for communicat ions responsive to the court order. Unfortunately, OMC-CA Secur ity personnel miscommunicated the search parameters to ElTSD, and as a resu lt of that human error, ElTSD's search was not limited to onl y the email ma il boxes of the three named prosecutors; it included certain defense email mail boxes as well.

On March 2 1 and March 22, 20 13, EITSD provided OCPcounsel with a number of Microsoft Outlook Personal Storage Table ("PST') fil es containing the results of the ir search pursuant to the Court' s order. Late on th is afternoon of Friday , March 22, one OCP counsel opened the first PST folder , and then opened the first four or five email s conta ined there in. All

1 In the midst of these events, the security function, and the people performing that function, were moved from under the supervision of OMC-CA to the supervision ofWHS.

Filed with TJ 9 April 2013

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but the last of those email s were between a member of Mr. a1 Qosi's trial defense team and a member of the prosecut ion team. The fin al ema il opened was from a member of the trial defense team and was addressed solely to other members of the a1 Qosi defense team . The salu tat ion was "team," or some similar word. DCP counsel read no further and immediately closed the email and the folder. He then immediately not ified hi s co-counsel and paralegal that there appeared to be internal defense communications mixed in to the search resu lts ElTSD had provided, and that hi s co-counsel and paralegal should not look at any of the material provided by EITSD . Since th is instruction , OCP counsel and the ir paralegal have not reviewed any of the mater ial provided to them by EITSD.

Although it appears that at least one ema il exchanged among at Qosi defense team members was provided to OCP by ElTSD as part of the search resu lts, no one at OCP read the conte nt of that email message or saw any in ternal defense information.

On March 26, OCP counsel notified CAPT Mary McCormick, Mr. al Qosi's trial defense counsel, and the U.S .C.M .C.R. Clerk of Court of the inadvertent di sclosure. OCPcounsel and CAPT Mary McCormick agreed that these search results should be deleted. ElTSD then deleted them. OCP counsel do not have access to these search results.

On Monday morning, March 25, OCP counsel spoke directly with the EITSD Investigat ive Search Request ("ISR") Supervisor, who explained that ElTSD would need to reperform the search to exclude in tra-defense communicat ions. Counsel emphasized that the search should exam ine onl y ema il accounts of three named prosecution team members, and must not include any email s solely between or among defense team members. The ElTSD ISR Supervisor assu red OCP counsel that the new search would not involve any defense counsel ma il boxes.

EITSD completed this second search on March 27. Out of an abu ndance of caut ion, OCP counsel requested that EITSD not tum over the search results directl y to the prosecut ion. Instead, three 000 attorneys (who have no involvement in the AI-Qosi case and do not work for OCP), were provided access to the results of the search. Although it was antic ipated that th is search would not tum up internal defense communicat ions, these lawyers were instructed, again out of an abundance of caut ion, to examine only the "to," " from," and "cc" fields to determine if any of the responsive were internal defense communicat ions.

Only one of the three attorneys ever reviewed any of the headers, because soon after beginning the review, the attorney di scovered that there was a header indicat ing an email solely among defense counsel. That lawyer immediately ceased hi s review, and the others did not beg in the ir review. There was no compromise of the content of any internal defense communicat ions. These search results were subsequentl y deleted. The late addition of the name of a previous ly omitted defense counsel to the li st of people communicat ing with the prosecut ion had the result of confus ing the ISR technic ian, who then mistakenly searched that email mail box, along with the other three prosecution mail boxes.

OCP counsel then worked with ElTSD ISR technicians to develop a th ird search that, aga in , would yield documents responsive to the Court's orders bu t om it internal communicat ions between and among defense team members alone. EITSD completed th is third search on


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Thursday, March 28, but these search resu lts have not yet been viewed by anyone, as U.S .C.M .C.R. issued an order on April I , directing the government to cease further efforts to search for communicat ions responsive to its February 12th order.

Separately, it has come to the attention of the Chief Prosecutor that a folder conta ining PST tiles conta ining email s of a former OCP counsel were ava il able to the Office of the Chief Defense Counsel personnel on the Defense computer "shared drive," Counsel in the Office of the Chief Defense Counsel not ified OCP of the ir access, and took steps to have that access di sabled, without v iewing content.

S imilarly, on Wednesday, Apr il 3, defense counsel for the accused in another case infonned the Chief Prosecutor and others in OCP that he had mistakenly sent them an ema il containing a filing he intended to submit to the mili tary commiss ion ex parte. The Chief Prosecutor immed iately directed all OCP personnel not to read the ema il , and to delete it.

Confidential and priv il eged defense informat ion has not been viewed by personnel in the Office of the Ch ief Prosecutor of Mili tary Commissions, and OMC-CA has been act ively work ing to identify and take any necessary remedial action. Given the case-specific and defense- ini tiated nature of the c ircumstances giv ing ri se to th is not ice-as well as the e-mail encryption, confidential face-to-face meeting, and other methods ava il able to counsel in the present commiss ion to assu re priv il eged communicat ions with the ir c lients- we are aware of no c ircumstances justify ing di sruption to or delay of scheduled proceedings. Nevertheless, so as to ass ist the mili tary judge in the exerc ise of hi s duties under Ru le for M ili tary Commiss ions 80 I, the Gove rnment not ifies the Court of the above matters, and of its filing with U.S .C.M .C.R.

Attachments

A Cert ificate of Service, dated 8 April 20 13.

B. Mot ion for Enlargment of T ime to Produce Additional Documents Responsive to Cout's February 26, 20 13 Order, Al Qosi v. United States, No. 13-00 1 (U.S .CM .CR. Mar. 28, 2013).


Respectfully submitted,

Clay Trivett Deputy Trial Counsel

Mark Mart ins Ch ief Prosecutor Mili tary Comm iss ions

3

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CERTIFICATE OF SERVICE

I certify that on the 8th day of April 2013, 1 f il ed AE 154, the Government Notice Of Events Related to Protect ion of Privil eged Materia ls with the Office of Mili tary Comm iss ions Tria l Judiciary and I served a copy on counsel of record.


IIsll Clay Trivett Deputy Trial Counsel Office of the Chief Prosecutor Office of M ili tary Commissions

UNCLASSIFIEDIYI'6I'l'I't;JBLlC RELEASE Appell,to E'hibillS4 (K8M el ,,.) Page 1 011 Page4of52


mRAHIM AHMED MAHMOUD ALQOSI,

Petitioner,

) IN THE UNITED STATES COURT OF ) MILITARY COMMISSION REVIEW ) ) MOTION FOR ENLARGEMENT ) OF TIME TO PRODUCE ADDITIONAL ) DOCUMENTS RESPONSIVE TO THE

v. ) COURT'S FEBRUARY 26, 2013 ORDER ) ) U.S.C.M.C.R. Case No. 13-00 I

UNITED STATES, ) )

Respondent. )

TO THE HONORABLE, THE JUDGES OF THE COURT OF MILITARY COMMISSION REVIEW

Pursuant to U.S.CM.C.R. Rule 21, Respondent United States respectfu lly requests this

honorable Court to enlarge the time to supplement its production of documents responsive to the

Court's February 26, 2013 Order until Monday, April 29, 2013. Respondent will, of course,

provide thi s honorable Court the additional responsive documents as soon as they are available.

BACKGROUND

On February 12, 2013, U.S.CM.C.R. ordered Respondent to produce within seven days

"any communications, or records thereof, between the Government, and the Petitioner or any

member of the Petitioner's trial defense team or Appellate Defense Counsel regarding waiver or

withdrawal of appellate review, not otherwise included in the authenticated Record of Trial. "

Order'JI3, Feb. 12, 2013. It also ordered Respondent to produce "any document or other record

in the possession of the Government indicating excusal, change or withdrawal of Defense

Counsel during the period August 10, 2010 through February 12, 2013." Order'JI 4, Feb. 12,

2013. Although the Court did not specify a deadline for producing the documents identified in

Paragraph 4 of the Order, Respondent assumed the Court intended Respondent to produce these

documents also within seven days .

On February 19, 20 13, Respondent proouced documents responsive to Paragraph 3 of the

Order and requested that the Court enlarge the time to produce additional documen ts responsive


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to that Order. On February 25, 20 13, Petitioner opposed the enlargement request. The next day,

the Court granted an enlargement of time until March 2 1, 20 13. The Court also mod ified

Paragraph 3 of its Order, instructing Respondent to produce

copies of any commun icat ions, or records thereof, between the Government, and the Pet itioner or any member of the Pet itioner's trial defense team or Appellate Defense Counsel regarding wa iver or withdrawal of appe ll ate review, not otherwise inc luded in the authenticated Record of Trial, and occurring durillg tire period August 10, 2010 through Febmary 12,2013.

Orderll I, Feb. 26,2013 (emphas is in orig inal) .

On March 2 1, 20 13, Respondent moved for an enlargement of time to produce add itional

documents responsive to the Court 's February 26, 20 13 Order. Pet itioner opposed the

enlargement request. On March 26, 20 13, the Court granted the Mot ion . For the reasons

explained below, Respondent must aga in ask the Court to enlarge the time to supplement the

product ion of documents responsive to the Court's February 26, 20 13 Order. An enlargement of

time is necessary because searching for responsive communications-while properl y protect ing

Petitioner's and Respondent' s attorney-cl ient priv il eged communicat ions-has proven complex.

Desp ite counsel for Respondent's diligent and s incere efforts to comply with the Court 's orders,

the Government requires more time in order to continue to diligently produce responsive

communicat ions.

On March 28, 20 13, counse l for Respondent asked Capta in McCorm ick if she would

consent to an enlargement. As of the filing of thi s mot ion, Respondent had not received Capta in

McConn ick 's response.

FACTS

On February 15, 2013, counsel for Respondent contacted Mr. _ , Informat ion

Technology Manager in the Office of Mili tary Commiss ions - Convening Author ity , in form ing

him that the Court had ordered Respondent to produce, ill fer alia '''any communicat ions, or

records thereof, between the Government, and [Ibrahim Ahmed Mahmoud Al Qos iJ or any

member of [h is] tr ial defense team or Appellate Defense Counsel rega rding wa iver or withdrawal


2

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of appellate review .... '" Email from Edward White, CAPT, JAGC, USN, Appellate Counsel

for Respondent, to _ Infonnat ion Technology Manager, OMC-CA (Feb. 15, 20 13,

13:54 EST) (Attachment A at 4 ). Counsel for Respondent asked Mr. _ to facilitate

the technical steps necessary to obtain responsive commun icat ions and to provide a timeline for

obta ining them. Mr. _ replied that "OMC Secur ity" must request the communications from

OSD Records Management, because the search would require access to the arch ived mail boxes

of individuals who no longer work at the Office of the Chief Prosecutor. Email from _

to Edward Wh ite (Feb. 15, 2013, 15:46 EST) (Attachment A at 3-4). Me. _ copied OMC

Convening Author ity Security staff on his reply. COMe Security was initiall y a component of

OMC, but was later transferred to the Wash ington Headquarters Service ("W HS")).

That same day, Ms. Se,our;tv Speciali st at OMC, replied to counsel for

Respondent, requesting a copy of the Court Order. Ms. _ stated that the Court Order

"must be processed as a FOIA [sic)" by "a special team at the [Office of the Secretary of

Defense, Ch ief Infonnation Office]." She est imated, "They can poss ible [sic] get it to you by

next week ." Email from Secur ity Speciali st at OMC, to Edward White (Feb.

15,20 13, 15:57 EST) (Attachment A at 3). Four minutes later, counsel for Respondent sent Ms.

_ the Court order and instructed her not to process the Court order as a Freedom of

In format ion Act Request. Email from Edward Wh ite (Feb. 15, 20 13, 16:01

EST) (Attachment A at 2) . Counsel also requested "a solid projected complet ion date and an

idea of what's involved" in case counsel needed to request additional time from the Court. Id .

Despite counsel' s repeated attempts to contact Ms. _ by phone and ema il .Ms.

_ did not respond to counsel' s email until four days later, February 19, 2013- the

deadline for producing responsive communicat ions. Ms. _ recommended that counsel

"request 45 working bus iness days extension (excluding holidays and weekends) ." Email from

to Edward White (Feb. 19,20 13, 16:05 EST) (Attachment A at I). Relying on

Ms. _ assessment of the additional time that would be required to complete the search

and review, on February 19, 20 13, counsel requested an extension of 45 bus iness days to


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complete the search for responsive communicat ions and produce those communicat ions to the

Court.

In her February 19, 20 13, ema il recommending a45-day extension, Ms. _ also

indicated that she contacted the defense "to gather the email andfil es ... ld.Thefollowing day. it

was brought to counsel' s attention that Ms. _ indeed had contacted a member of the

Office of the Chief Defense Counsel request ing communicat ions identified in the Court Order.

Email from Edward White to (Feb. 20, 2013, 14:36 EST) (Attachment B at 1-

2). Counsel immed iately emailed Ms._

Id.

"There is no need to search defense email accounts- and we don ' t want you to do that. To comply with the Court 's order, it should be sufficient to search the archived ema ils of [certa in prosecution counsel]. Those are the people with in [the Office of the Ch ief Prosecutor] that wou ld potentiall y have responsive materials in the ir archived email s, and there shouldn't be anything responsive in defense email s that wou ldn 't also be in one of those email accounts.

So, please have the [Chief Informat ion Office] people li mit the ir search to those three individuals named in the above paragraph."

For reasons unknown to counsel for Respondent, the people executing the search within

the Enterpr ise Informat ion Technology Services Directorate ("ElTSD") of WHS were not made

aware of counse l' s instructions. _ Decl. , Mar. 28, 20 13 (Attachment C) . An

Invest igat ive Search Request ("lSR") to ElTSD completed by Ms. _ and dated February

2 1, 20 13- the day afte r counsel' s li miting instruction--d id not li mit the search to the three

named prosecutors . EITSD Requiremen ts Document (Feb. 2 1, 20 13, and updated Feb. 27, 20 13)

(Attachment D). In fact, it complete ly omitted one of the named prosecutors from the search

ent irely. [d. Ms. _ named herse lf, two prosecution paralegals, and two defense

para legals as the persons who could review the search resu lts from the search technic ians to

ensure that the search resu lts did not inc lude any attorney-cl ient privil eged communicat ions. See

Email from to Danielle Tarin (Mar 25, 20 13, 8:06 EST) (Attachment E).

ElTSD Requirements Document (Feb. 2 1, 20 13, and updated Feb. 27, 20 13) (Attachment D).

Counsel for Respondent was unaware of this mis-scoped ISR until March 25, as Ms._


4



did not consult with counsel regard ing the lSR and, in fact, insisted that counsel route a ll search

instructions through her instead of directly contacting the technic ians conducting the search.

The week of March I I, 20 13, Ms. _ indicated to counsel that the search would

likely be completed before the Court's then-establi shed deadline of March 2 1. Counse l

attempted to contact Ms. _ on both March 18 and March 19 for a status update, but Ms.

_ did not respond. Instead, Ms. _ contacted a paralegal in the Office of the Chief

Prosecutor on March 19 and infonned the paralegal that the search results would not be ava il able

unt il at least March 2 1. On March 20, counse l traveled to Ms. _ office- more than a

half hour drive away- in an attempt to speak with her, but Ms. _ was not there . Email

from Edward White to (Mar. 20, 20 13, 13: 18 EST) (Attachment F at 2).

Counsel emailed Ms. _ ask ing her to direct counsel to someone who could help explain

to the Court why Respondent would need another extension. Id. Several hours later, Ms.

_ infonned counsel that •• " was "lead ing sea rch." Email from

Edward White (Mar. 20, 20 13, 17: 12 EST) (Attachment F at I).

That evening, counsel detennined that •• " was

to

an ISR Speciali st

at EITSO with in WHS. Counse l contacted him that night for a conference call the next morning.

The next morn ing, Mr. _ in formed counsel that ElTSO's li mited resources prevented

E ITSO from complet ing the search before March 2 1. See _ Oec1. '11'11 2-4, Mar. 2 1, 20 13

(Attachment G). Late r that day, he informed counsel that, barring any unforeseen events, the

search would not be complete until March 22. He assured counsel that ElTSO had made "every

effort poss ible to provide counsel for Respondent with the ISR resu lts as soon as it can."

_Oed . Mar. 2 1, 20 13.

On March 2 1 and March 22, EITSO provided Office of the Chief Prosecutor ("OCP")

counsel with a nu mber of Microsoft Outlook PST files containing the resu lts of the ir sea rch

pursuant to the Court's order. Late the afternoon of Friday, March 22, one counsel for

Respondent opened the first PST folder, and then opened the first four or f ive email s conta ined

there in. All but the last of those email s were between a member of Mr. al Qosi's trial defense


5


UNCLASSIFIEOIIFOR PUBLIC RELEASE

team and a member of the prosecut ion team. The f inal email he opened was from a member of

the trial defense team and was addressed solely to other members of the a1 Qos i defense team.

The salutat ion was "team," or some s imilar word . Counsel read no further and immed iately

closed the email and the folder. He then immed iately not ified hi s co-counsel and paralega l that

there appeared to be privil eged communicat ions mixed into the search resu lts counsel had been

provided, and that hi s co-counsel and paralegal should not look at any of the material provided

by EITSD . S ince this instruction , counsel for ResjXJndent and the ir paralega l have not reviewed

any of the material provided to them by ElTSD. Although it appears that at least one ema il

exchanged among defense team members was provided to counsel for Respondent by ElTSD as

part of the search resu lts, no one OCP has read the content of that ema il message or seen any

priv il eged defense informat ion. (On March 26, counsel for Respondent not ified CAPT Mary

McCorm ick and Mr. al Qosi's trial defense counse l of the inadverte nt disclosure .)

Desp ite counsel's clear prior instructions to Ms. _ that no defense email accounts

should be searched , and that the sea rch should be li mited to the ma il boxes of the three named

prosecutors, EITSD had search each of s ix ema il boxes, two prosecut ion ma il boxes and four

defense counsel mail boxes, for any communications from that person to any of the others. See

_ Oecl.11 2-4, Mar. 21,20 13 (Attachment G).

On Friday, March 22, counsel for Respondent attempted to contacted Mr. _ but

he had already left for the weekend. The following Monday morning, March 25, counsel spoke

directly with Mr. _ who explained that Ms. _ had not limited the search in

accordance with counse l' s instructions and that the search would need to be entire ly redone.

_ Oec1. , Mar. 28, 20 13 (Attachment C) . Counsel emphas ized to Mr. _ that the

search should exam ine onl y email accou nts of three named prosecut ion team members, and must

not include any email s solely between or among defense team members.

On March 25, by ema il , counsel asked Mr. _ to confinn that ElTSD was searching

for responsive communicat ions only in the prosecut ion team members' email accou nts . Email


6



from Danielle Tarin (Mar. 25, 20 13, 18:26 EST) (Attachment H at 1-2) . Mr.

_ replied that counsel need not

Email

worry about see ing any email s with privileged or work product informat ion in the results.

Remember the computer onl y does what you tell it, it is object ive in its search. The search w ill be any email s FROM or TO the prosecut ion attorneys TO the defense or FROM the defense attorneys. Again no responsive records will [sic] between the defense attorneys themselves w ill end up in the results. Once the technic ian inputs the search parameters in to search engine it will onl y provide responsive resu lts based upon those requirements.

The search does not have to be executed within the mail boxes of the defense attorneys to provide the resjXJnsive resu lts you are seeking.

to Danielle Tarin (Mar. 26, 20 13, 6:3 1 EST) (Attachment H at I).

ElTSD completed thi s new search on March 27. Out of an abu ndance of caution, counsel

directed Mr. _ to deposit all search resu lts with gove rnment attorneys outs ide the Office

of the Ch ief Prosecutor (the "Privilege Review Team") so that those attorneys could review the

search results to ensure they included no pr ivileged conununicat ions and , in particular, no

communicat ions solely among Mr. al Qosi's defense counsel. _ Decl. , Mar. 28, 2013

(Attachment C). Soon after beginning the review, a pr ivilege-review attorney discovered an

email solely among defense counse l. _ Decl ., Mar. 28, 2013 (Attachment C). The

privilege-review attorneys inunediately ceased the ir review.

Counsel for Respondent then worked with the EITSD search technicians to develop a

new search that, again , would yield documents responsive to the Court's orders but omit

privileged communicat ions between and among defense team members alone. _ Decl. ,

Mar. 28, 20 13 (Attachment C) . ElTSD began the new search that night but st ill encountered

"unforeseen technical issues." Email from EITSD, to Michael O'Su Ui van,

Col, USAF, Deputy Ch ief Prosecutor, Office of the Ch ief Prosecutor (Mar. 27, 20 13, 19:09 EST)

(Attachment I).

No one in EITSD is ass igned full -t ime to work on ISRs. Rather, a handful of tech nic ians

conduct these invest igat ive searches in addition to the ir other ass igned duties, wh ich include


7



mainta ining the operat ion and security of the OSD informat ion networks, among numerous other

IT functions. Only a handfu l of technic ians within EITSD have the knowledge and expert ise to

operate the search software used to cond uct the search in th is case. The single most experienced

and knowledgeable techn ic ian has been out of the country on leave since after complet ion of the

first, mis-scoped search and therefore has been unavailable to ass ist in constructing and running

the subsequent searches. Onl y technic ians less skilled in the use of the software search tool are

available. One EITSD technic ian remained at work for four hours beyond his normal duty hours

on March 27 to work on thi s search, and needed to spend a considerable amount of time speaking

with technical experts at the software vendor to obtain ass istance in craft ing and executing the

search.

EITSD completed th is third search on Thursday, March 28, but the search has

inexplicably generated over 540,000 email s, wh ich EITSD as of the time of writing has not yet

provided to the Privilege Review Team that is standing by to screen the search resu lts. Upon

information and belief, even though the number of responsive documents, if any, will likely be

quite small , it w ill take a significant amount of time for the Privilege Review Team to review the

540,000 email s for privilege, for counsel for the Government to then narrow the 540,000 email s

using additional search tenns to appropriately narrow the results, and then cond uct a page-by-

page review, in order to ensure that the Government fully complies with the Court' s Order.

ARGUMENT

Respondent has taken reasonable steps since the Court' s or iginal product ion order to

identify and produce the communicat ions responsive to the Court' s order. Ini tiall y, garbled

communication between counsel for Respondent and the tech nic ians actually execut ing the

electronic search produced fl awed resu lts. Once that problem was identified and resolved,

counsel for Respondent engaged in direct communicat ion with the personnel at EITSD work ing

on th is search request in an effort to better focus the search for responsive documents.

Throughout these second and third iterat ions, however , Respondent has been di sadvantaged by


8



the absence of the s ingle most experienced and knowledgeable technic ian, as well as by the

compet ing miss ion-critical demands on the time of the part-time lSR technic ians who are

avail able. Further, as attested to by the declaration of Mr. _ and by the difficulties

recounted above, craft ing a search that simultaneously protects priv il eged defense

communicat ions, captures all responsive communications, and yet does not produce overbroad

and burdensome resu lts is a challenging and time-consuming task .

As explained above, the most recent search- wh ich was li mited to the mail boxes of three

prosecutors, and looked onl y for email s between that prosecutor and at least one of the a1 Qosi

trial defense counsel, using an appropriate set of narrowing search terms, st ill produced over

540,000 email hits, wh ich seems imposs ibly large. Given the pr ior hi story, counsel for

Respondent has thought it prudent to have the search resu lts screened for privil eged material

before exam ining the search results themselves .

Once the priv il ege review is completed, counsel for Respondent will need a substantial

period of time to identify why the EITSD search has returned such a large number of email s, and

develop a strategy to narrow those resu lts with add itional reasonable search terms, and then

conduct a page-by-page review of the winnowed email s for responsive documents.

Counsel for Respondent has worked diligently to produce responsive communicat ions.

Nonetheless, for all the reasons detailed above, retrieving those commun icat ions wh ile properl y

protect ing pr ivil eged infonnat ion has proved more challenging than antic ipated. Given the

difficulties encountered so far , and to ensure that counsel continue to prope rl y protect privil eged

communicat ions while complying with the Court's Orders, Respondent respectFully requests that

the Court enlarge the time to produce additional documents responsive to the Court's February

26, 20 13 Order until Monday, April 29, 2013.


9


Filed with T J 9April2013


10

Respectfully submitted,

MARK S. MARTINS Brigadier General, U.S. Army Chief Prosecutor

EDWARD S. WHITE Captain, JAGC, U.S. Navy Appellate Counsel

DANIELLE S. TARIN Appellate Counsel

Counsel for Respondent

Office of the Chief Prosecutor Office of Mi litary Commissions 1610 Defense Pertta!\on

o

UNCLASSIFIEDIlIi(!)Iil'III!1BLlC RELEASEAp.,."". (KSM.I ".) Page 10 of 48 Page 14 of 52


CERTIFICATE OF SERVICE

certify that a copy of the foregoing was sent by electronic mail to CAPT Mary McConnick, detailed appellate defense counsel, on March 28, 2013.


EDWARD S. WHITE Captain, JAGC, U.S. Navy Appellate Counsel for Respondent

Office of Military Commissions 1610 Defense Pellta!:on

610

11

UNCLASSIFIEDIlIi(!)Iil'III!1BLlC RELEASEAppe"ato (KSM 01 ". ) Page 11 of 48 Page 1501 52



Attachment A

RELEASE Appell,to E'hibillS4 (K8M el ,,. ) Page 12 of 48 Page 1601 52


Tarin, Danielle S CIV OSD OMC Prosecution

From: QSD OMC Convening Authority Sent: 19, 2013 4:05 PM To: White, Edward S CAPT OSD OMC Prosecution Cc: Tarin. Danielle S CIV OSD OMC

_ eTR WH5- EITSD,

OSD OMC Convening Auth"rity; Mr OSD OMC Convening _ eIV 050 OMC Convening Authority; _ Mr OSD OMC I

Authority; MLA dd - OMC Convening Authority Security; Breslin, Michael Mr OSD OMC Con'Jening OSD OMC i

. LNl OSD OMC Mr 050 OMC Convening Autho,rity Subject: UPDATE: RE: URGENT - al Qosi v. United Signed By:

Good Afternoon CAPT White, I've spoken with Ms. Danielle Tarin and I explained that J spoke with the records' manager for Defense, Ms. Clcmencia Jemison and I sent an email toP.o._ (Prosecutionrecordsmanager).TheseindividualsI.ve requested to gather the email and files. Once the emails are gathered they must be un-vaulted which a request to the helpdesk to have this done. The emails and fi les they don 't have I've already requested to the OSD CIO helpdesk for immediate assistance (1 day turnaround to tell me if they have the emails and fi les available). Each individuals' email/files wi ll have to be gone through individua lly by the records' manager and if they can't go through them the CIO office wi U have to have their team go through them ind ividually. The rc<:ords if they are old the request may have to be sent to the archives to retrieve what you are requesting. I explained to Ms. Tarin I would request 45 working business days extension (excluding hol idays and weekends) because un-vaulting can take a very long time and some emails are difficult to open, and some may not open at aU.

If you need further assistance just let us knmv.

Sincerely,

Privacy Act of 1974 as Amended appUes - this email may contain information that is protected lAW DoD5400.11 R and is For Official Use Only (FOUO). Caution: Wormation contained in Ih is message may be protected by the attorney/client privilege, attorney work.


1 RELEASE Appell,to E'hibillS4 (K8M el ,,. )

Page 13 of 48 Page 17 of 52


Message--From: White, 5 CAPT aso OMC Prosecution

19.2013 1:351'M OSD OMCConvening Authority

A Convening A ,iihciritv: A OSD OMC Convening Authority; Breslin, OMC Convening Authority Subject RE; URGENT - Court Ordor ICO.I Qosi v. United States Importance: High -

CTR OSD OMC Convening

Cry aso OMC Convening Conv,en ing Authority Security;

We're getting close to the point at which we need to file something with CMCR in the Qosi maHer. Whafs the liltest news (especillUy with respect to Q. 3 beJow)?

Thanks. vir. ESW

- --Original Message--From: White. Edwnrd 5 CAPT aso Ol\'IC Prosecution Sont: 15. 2013 4;01 PM

-..ts '05D OMC Convening Autho'rity

OSD OMC Prm;ecution;

Convening Au,lh<irity; OSD OMC Convening Authority;

- Cou rt Order ICO aJ Qosi v. United States

1. Thanks for the quick response.

2. AttilChed is J copy of the Order from CMCR.

' JO ,V OMC Convening OSD OMC Convening

ConveniingAuthority Security

3. It should NOT be processed as a FOLA request - it is not a FOIA request, but a court order. IT Ulat's n sticking point. let me know and we can discuss.

4. Understand you might not be able to get us a substnntive answer by COB Tuesday, but if we cou ld at least get a solid pmjeclcd comple tion date and an idea of what's involved, we can seck extra time from the Court.

vir. ESW

Filedwilh TJ 9 April 2013

OSD OMC Convening Authority

1 RELEASE Appell,"E,hibil1S' (K8M., ,,.)

Page 14 of 48 Page 1801 52

UNCLASSIFIEDIIFOR PUBLIC RELEASE Sent: Friday, February 15, 20133:57 PM To: White, Edward 5 CAPT OSD OMC Prosecution

Cc: Tarin, Daniel1e 5 OV OSD OMC OSD OMC Convening

CTR

Convening Authority; Mr 050 OMC Convening Auulority;

Subject: RE: URGENT - Comt Order ICO al Qosi v. United States Importance: High

CIV OSD OMC Convening Cc"wcning Authority Security

.... f(@ t.. t3SJ . l@ll'!!e Good Afternoon CAPT White, Before t.rus request is processed J must have a copy of the court order and it must be processed as a FOIA. I can <lskcd for an expedite, bUll can.not guarantee it will be completed by TuC'sday, 19 January 2013 becClusc this is done by il spedal team -"t the OSD CIO. They con possible get it to you next week.

J wHl contact the records managers for OMC-Defensc and Prosecution in regards to !.he emails to sec if they Ciln assist quicker. I can 't do anything without the court o rder, I must have it as soon as possible. Sincerely,

St.."CUrity Specialist

Privacy Act of 1974 as Amended applies - this email may contain information that js protected lAW DoD5400.1'IR and is For Official Usc Only (FOUO). Caution: Information contained in this message may be protected by the attorney/client privilege, attomey work,

--OriginaJ Mcssage-From:_ Mr 050 OMC Convenjng Autho rity Sent: friday, February 15, 20)3 3:46 PM To: White, Edwilrd 5 CAPT OSD OMC Prosecutionj MLA dd - OMC Conveni ng ALlth,odtv "eellrItV

Cc: Tarin, Danielle 5 e lY OSD QMC

Authority Subject; RE: URGENT - COlnt Order ICO al Qosi v. United States Imporlance: High

CAPT White,

3

erR aSD OMC Convening

ClY OSD OMC Convening

Filedwilh TJ 9 April 2013

RELEASE Appe","E'hibIl154 (K8M., ,,.) Page 15 of 48 Page 1901 52


This request will have to be processed by OMC Security. OMC Security will have lo rl'quest the emails from aSD Records Management. The details of the process and timeline can be provided by OMC Securily .

• --Original Messagc-Prom: White, Edward 5 CAPT aso OMC ProS(.'CUtion Sent: Friday, February 15, 20131:54I'M To: _ Mr O5D OMC Convening Autho'ri tv Cc: Tarin, Daniello S OV 050 OMC

CTR Authority Subject: URGENT - Court Order ICO al Qosi v. United Sta tes Importance: High

The Office of the Chief Prosecutor received an Order from the U.S. Court of .Military Commission Review requiting us to produce-by COB Tuesday, 19 February."any communicil tions, or records thereof, between the CoYemment, and nbrnhim Ahmed Mahmoud AI Qosil o r any member of [hisl triill defense team or AppcUate Defense Counsel rcgnrding waiver or withdrawal of appellate review ... . "

To respond to this Ord t'r, 1 need emllil communications from July 2009 through August 2010 between anyone of these prosecutors-CDR Dirk Padgett (OMC-P), Seamus Quinn (departed OMC-P), and Ralph Paradiso (depa rted OMC-P)-and anyone of these defense counsel-MAJ Todd Pierce. CDR Susan Lachetier, Larry Martin ([email protected]), LCDR Travis Owens, and Paul Reidller (preichle®foleyhoag.com).

Would you please faci litate technjcJI s teps necessary to obtain these em<li i communications and provide a timeline fo r obl:c1.ining U1em? A.lthough the Courl has ordered us to produce the communications by COB Tuesday (19 February), I realize obtaining these communications by that date might not be possib le. If it is not, by what date do you believe we can obtain them?

TIlankyou.

Ed Whi te

EDWARDS, WHITE CAPT, JACC, USN Deputy Chief ProSet'tltoT (Motions & Appea l'i) OWce of the Chief Prosecutor of Mili tary Commissions 16 t a Defense Pentagon Washington, D.c 20301-1610

4 Filed with TJ 9 April 2013

RELEASE ""pell,"E'hibil154 (K8M el ,,. ) Page 16 of 48 Page 20 of 52



5 RELEASE ""pell,"E'hibil154 (K8M el ,,.)




Attachment B

RELEASE Appell,to E'hibillS4 (K8M el ,,. ) Page 18 of 48 Page 22 of 52


Tarin. Danielle S CIV OSD OMC Prosecution

From: Sent: To; Cc:

Subject: Signed By:

11006 Good Afternoon Sir,

OSD OMC Convening Authority Wedne!Oday, February 20, 2013 3:54 PM White, Edward S CAPT OSD OMC Prosecution Breslin, M ichael Mr OSD OMC Convening Authority; Tarin, Danielle S av OSD OMC

TIle limit to the CIO was Lo send the ernails that PO_ needs. The Defense already ha ve the emails except for LacheLier so I was inqu iring to them to provide the cmails to make the process quicker and easier for you.

t wi ll check with PO_ to see if she has .received confirmation from the CIO when will they send her the em ails that she needs to prov ide to you from OMC-P s ta ff on the email that was sent to me.

If you need fu rther let me know.

Sincerely,

Privacy Act of 1974 as Amended applies - this email may contain informatio n that is protected lAW DoD5400.11R and is For Official Use Only (FOUO). Caution: information contained tn this mCSS<lge may be protected by the attorney/client privilege, a ttorney work.

-----Original Mcssagc-----From: White, Edward 5 CAPT 050 OMC Prosecution

20, 2013 2:36 PM OSD O MC Convening Autho ri ty

OSD O MC Convening Au tho ri ty; Tarin, Danicllc 5 CIV OSD OMC Prosecution Subject: RE: Request for


I RELEASE Appell,to E'hibillS4 (K8M el ,,. )



Mike Breslin brought to my attention ('arlier tOday that Bryan Broy les of OCDC had declined to assist in your effort to search OCDC emails, which you had sought to do in response to our request to search archived elJ1iljl accounts in response to the CMCR order in the al Qosi matter.

There is no need to search defense email accounts -- and we don 't want you to do that. To comply with the Court's order, it should be. sufficient to search the archived em ails of Capt Seamus Quinn. USMC, LtCol Rn lph Paradiso. USAF, and CDR Dirk Padgett, JAGC, USN. Those are the people wi thin OCP that would potentially have responsive materia ls in their archived emaiis, and there shouldn't be anything responsive in defense emails that wouldn't also be in one of those email accounts.

So, please have the 00 people limit their search to Ul0se three 'individuals named in the above paragraph. If you have any questions or concerns going fonvard, pJease feel rree to call or email Danielle Tarin in my office, as she has the lead on this matter for us.

Thanks.

vIr, Ed White

EDWARD S. WHITE CAlYf, JACe, USN Deputy Chief Prosecutor (Motions & Appeals) Office of the Chief Prosecutor of Military Commiss ions 1610 Defense Pentagon Washington, D.C. 20301-1610

--Original Message--From: Breslin, Midlael Mr OSD OMC Convening Authority Sent: Wednesday. February 20, 201 3 1 :40 PM To: Ta rin, Danieile S ClV OSD OMC Prosecution; White, Edward S CAPT OSD OMC Prosecution Subject: RE: Request for Smalls

Should I pass that along to Ms_

mb

---Original Message--From: Tarin, Danielle 5 ClV OSD OMC Prosecution Sent: Wednesday. February 20. 201311:07 AM To: While, Edward S CAPT OSD OMC Prosecution


RELEASE ""pell,"E'hibil154 (K8M el ". ) Page 20 of 48 Page 24 of 52

UNCLASSIFIEDIIFOR PUBLIC RELEASE Cc: Breslin, Michael Mi OSD OMC Convening Authori ty SubjE!Ct: RE: Request for Emails

No, r do not think we need to sea rch the archived communications of- anyone other than Padgell, Qu inn, and Paradiso.

Best, DemieUe

--Original Message-From: White, Edwnrd 5 CAPTOSD OMC Prosecutjon Sent: Wed nesday, February 20, 2013 10:58 AM To: Breslin, Michoel Mr OSD OMC Convening Authmity Cc: Tarin , Daruelle 5 Cry 050 OMC Prosecution Subjec t: RE: Request for Emails"l"t"r

Mike,

I think Bryan is correct that we don 't need to be searching within the Defense emails. the order is to the government, and concerns documents/communications concerning waiver or appe llate review and withd rtlwal/cxcusal of coun sel from the case between the government <ll1d the defense. We should find any responsive documents by searching OUT side or the camms.

Danielle- weigh in here, but I'm thinking it js probably sufficient to search the arch ivt..>ti comms of Padgett, Quinn and Parad iSe). Danielle - do you think we need to search the communications of anyone else?

vir, ESW

-Original Message--From: Breslln. Mkhael Mr 050 OMC Convening Au thority Sent; Wednesd.y, February 20, 201310:31 AM To: White, Edward 5 CAPT OSD OMC Prosecution ubject: FW: Reques t for

Ed-

Ms Woodard is attempting to get- the e-mail you requested . Appare ntly, some of the accounts for defense counsel now depJrted arc s till with the defense records managers at OCOe. Ms _ asked Ulcm if they would search. Mr Broyles repljed (below) that the court's order is di rected to the government, not the defensc.

Not sure if OSO 00 can search the defense e-mail, Or w hether you want them to-

How would you like to proceed?

Mich.el ,. Breslin Deputy Legal Advisor


3 RELEASE ""pell,"E'hibil154 (K8M el ,,. )

Page 21 0148 Page 250f 52

UNCLASSIFIEDIIFOR PUBLIC RELEASE Office of Military Commissions

CAUTION: Lnformation con tajncd in this message may be protected by tht' attorney-client priviIege, attorney work-prod uct privilege, delibera tive process or other privileges, Do not d istribu te further without approva l (rom the Office of the Convening Authority for Mil itary Commissions.

OSD OMC Convening Authority earn;s.r.;y; r.<:O;;:;-arv 20,2013 10:22 AM

To: Breslin, MichJcI MrOSD OMCConvening Authority Subject: FW: Request for Emails fWr

I!JI .@t: [OJ),Tel!Je Mr. Breslin, Ms. Jemison and Ms._ are Lhe reco rds milnilger fo r Defense so l spoke to her about it and she asked me fe, info rm Mr. Broyles so he knows what she and Ms, _ needs lo do.

It is much easier fo r the records m:ln;,ger to go through the emails since the o rder is v£! ry specific of what they wanl Each division with OMC has a records manager and they received the emails and PST files of lhe aUomeys when they Sincerely,

Privacy Act of 1974 as Amended applies - this cmJil may contain info rm <l tion U,at ;s protected lAW DoD5400_11R and;'; For Offidol Use Only (FOUO). Caution: Information contained in U,is message may be protected by the <1ttorneyJdient privilege, attorney work.


• RELEASE ""pell,"E'hibil154 (K8M el " .) Page 22 of 48 Page 26 of 52

UNCLASSIFIEDIIFOR PUBLIC RELEASE -Original Mcssage-From: Broylcs, Bryan Mr OSO OMC Defense Sent: February 20, 201 3 8:32 AM

Ms OSD OMC Convenjng Authority

I, Ms OSD OMC Defense; D MsOSD

E COL OSD OMC Deh"'Se; RE: Request for

CIV CTR OSD OMC; Mayberry, Karen

ConvEwlg Authority

This order is iI direction to the Government, that is, the pr05e'cution in this to produce those emails. 1I is not an order to us, the defense.

To quote, "That the Governmen t shall produce copies of any communications, or records thereof, between the Government, and the Petitioner or any member of the Petitioner's tria l defense team or Appellate Defense CounseL .. "

As the cmails that are rt'spons fvc are, by definition, received by "the Government," that order is directed to them. Jlot to us.

Mr. Broylcs

Ms 050 OMC Convening Authority Sent Tuesdoy, February 19, 20134:37 PM To: Broyles, Bryan Mr 050 OMC Defense Cc: Jemison, Clemencia Ms OSD OMC Defer,se: OSD OMC Ms OSD OMC E COL OSD OMC Def"nse; Subject: Request for Emails\'t'j Importance: l-ligh

C.(ccr&IJ£ oeo Good Afternoon Mr. BTOyk'S,

CTR OSD OMC; Maywry, Koren OSD OMC Convening Authority

I spoke to Ms. Jemison thiS a fte.rnoon in regards to this court order 1 received. The court is requesting cmails listed in this court order. I've requested to the CIO to assist in this matter right aw.,y if possib le.

If you hnve further questions please contact either myself or l1li for assistance,

Security Speciatist


s RELEASE Appe","E,hibil154IKSM el ,I.)


UNCLASSIFIEOIIFOR PUBLIC RELEASE

P ri vac)' Act of 1974 as Amended applies· this email may contain information that is protected LA W Do05400.11 R and is For Official Use Only (FOUO).

Information contained in U1'is message may be protected by the attorney/client privilege, attorney work.






Attachment C



mRAHIM AHMED MAHMOUD AL QOSI,

Petitioner,

v.

UNITED STATES,

Respondent.

DECLARATION

) IN THE UNITED STATES COURT OF ) MILITARY COMMISSION REVIEW ) ) OF"'" ) ) ) U.S . C.M .C.R. Case No. 13-001 ) ) ) ) )

I. 1 am an Invest igative Search Request Speciali st in the Enterprise Informat ion Technology

Services Directorate ("EITSD") with in the Wash ington Headquarters Services ("WHS") of the

Uni ted States Department of Defense. My responsibili t ies include oversee ing the technical

execut ion of Invest igat ion Search Request ("lSR") searches, including preparing the parameters

for the search.

2. 1 am overseeing the lSR for documents ordered by the Un ited States Court of M ili tary

Comm iss ion Review in its February 12, 2013 and February 26, 20 13 Orders in Al Qosi v. United

States, No. 13-00 I (C.M .C.R. filed Jan. 4, 20 13).

3. 1 ini tiall y received an ISR from Ms. on 21 February 20 13. Pursuant to that

request, we searched the email boxes of six named individuals-Dirk Padgett, Seamus Quinn,

Suzan Lachelier, Larry Mart in , Travis Owens, and Paul Reicheler. We searched the email box

for each individual, looking for any email from the individual to any of the other five. I was not


RELEASE ""pell,"E'hibil154 (K8M el ". ) Page 26 of 48 Page 30 of 52


told at that time to lim it the search onl y to the email boxes of the prosecutors. Further, Ms.

_ did not tell me wh ich of the s ix indiv iduals she identified were prosecutors.

4 . On Thursday, 2 1 March 2013, I spoke with Capta in Edward Wh ite, and Ms. Danielle Tar in ,

who identified themselves as counsel for the Uni ted States in the al Qosi matter to which th is

search was related. That was the first time they were made aware of the search parameters for

this first search.

5. As I indicated in my 2 1 March 20 13 declaration in th is matter, the technic ian who performed

thi s original search is my most experienced and capable lSR search technic ian, but he also has

other important responsib ilities relat ing to main taining M icrosoft Exchange email servers for the

entire network serving the Office of the Secretary of Defense. During the time he was work ing

on the orig inal search on th is ISR, he was also required to perfonn mission-critical duties related

to a problem that arose with the operat ion of our email system .

6. On Monday, 25 March 20 13, Ms. Tarin not ified me that the original search results included

email solely between defense counsel, and explained the requirement to li mit the search solely to

certa in identified prosecut ion email accou nts . I then concl uded that the best way to remedy the

situat ion was to re-run the search with the new parameters. In the course of developing those

revi sed parameters , Ms. Tarin and I realized that one of the prosecutors whose email accou nt

should be searched had not been included in the ini tial search. Further, shortly before re-running

the search, we also di scovered that an add itional defense counsel' s name needed to be added.

This time, Ms. Tarin ident ified for me who were the prosecutors and who were the defense

counsel. I also understood her direction that we were not to search for any email s between or

among members of the defense.


RELEASE ""pell,"E'hibil154 (K8M el ,,.) Page 27 of 48 Page 31 of 52


7. Nevertheless, through human error, it turned out that the email account of the defense counsel

whose name was added at the end was included in the search. This error was di scovered by a

"privilege review team" of attorneys who screened these search results look ing for just such

mistakes. Based on their di scovery of an intra-defense email , we stopped the review, scrubbed

those search results, and undertook to fe-execute the search a third time.

8. Since shortl y after the first search was completed, and before the second search was

undertaken, my princ ipal expert ISR technic ian has been on leave outs ide the Uni ted States. As

a result, I have had to rely on other, less experienced lSR techn ic ians, who also have important

collateral duties related to the operat ion of the OSD network, beyond ISR search execut ion.

Further, because these other individuals are less experienced and less skilled than the pr inc ipal

ISR technic ian, conduct ing a search such as the one called for in this matter is more challenging

for them than it might be for my expert were he ava ilable. Indeed, the technic ian who has

princ ipall y responsible for execut ing the third search effort remained at work for approximately

four hours beyond his nonnal duty hours yesterday evening, and had to spend considerable time

talking with technical representat ives of the search software vendor to get assistance in execut ing

the search.

9. As a general rule, EITSD strives to provide a response to ISRs with in 14 days, although

historically EITSD has averaged a shorter tum-around, closer to eight or nine days . Some

request obviously take longer than that, and others take less, depending on the ir complexity and

scope. As a general rule, we operate on a mod ified first- in, first-out bas is. In some instances,

based on complex ity, scope and available resources, I might adjust the priority of a part icular

request. As well , depending on the size of a search and the number of technic ians ava ilable,

there is a li mit on the nu mber of searches we can run simu ltaneous ly. At the moment, EITSD


RELEASE ""pell,"E'hibil154 (K8M el ,,.) Page 28 of 48 Page 32 of 52


has 10 fSRs pending. From 2011 to 2012. EITSD experienced nearly a 60% increase in ISR

volume.

10. The third search, which we completed on 28 March 2013, produced over 541.000 emails.

My team and [ arc stand ing by to continue to work with cOllnse·] for the Government to identify

and produce to the Court all the documents responsive to its order as expeditiously as possible.

, declare under penalty of perjury that the foregoing is true and correct.

Executed on ; 28 March 2013

Directorate V Headquarters Services Uni ted States Department of Defense


RELEASE ""pell,"E'hibil154 (K8M el ,I. ) Page 29 of 48 Page 33 of 52



Attachment D




From: Sent: To: Cc:

Subject: Attachments: Signed By:

Daniclle,

_ Mr WHS-EITSD Monday, March 25, 2013 6:53 AM Tarin, Danielle S OV OSD OMC Prosecution

OV WHS-EITSD_ (IV

WOOOOOODOOO5324 ADM003075-12 WHS-ESD KBR NIPR/SIPR HOLD RD ADMOOOSOl-13 OMC Court Order 7767894.docx

Investigative Search Request Specialist Greatness consists of


serve.

l RELEASE ""pell,"E'hibil154 (K8M el ,,. )

Page 31 0148 Page 350f 52


EITSD Requirements Document SACCP ADMOOOSOI-13

W00000000011438 OMC

Thumaay. FebfUary 21, 21»3 Wednesday. February 27. 2013 (updated date)

J. NAME:

2. I)alo to be searched (E-mail and/or Sh:lrcd Files and/or 110ME Directory) • Email.

3. Sc:tl"ch terms (using Boolean logic) •

1

4. Search Dates {beginning and • July 2009 tAfBu§h August 2010 • Ju ly 2009 through Present (updated date)

S. CLASSlfllCA TlONS: l

6. Restore frequency • cVauh

CLASSIFIED:

$II'R

JWICS

7. cope of uscrs, organizations and/or servers • OMC

8. Estim •• eIActual Time aDd Cost $\26.00 X TIME 1211.00 usc En '''''' poe o;,RII Tr.CII "'1 \L ISH ,'ot

TIM E: 3 hours I Hour 3 MRS COST; 378 • S126 _ 5387 9. Requested Suspense Date:

• Requesters uspense DATE: 312112013 • I3ITSD Susponse DATE: 3/20/2013

-\(""11 A' SWII n-C"u I __ -t

126


RELEASE ""pell,,,E,hib" 154 (K8M el ,,.) Page 32 of 48 Page 36 of 52


)0. Delivery media and mNbod; NW PATH FOR TRANSFER OF RESlJLTS.

0: I"-1anagement\Ret?lin Files\OMC '11. Privileged or Work. Production Information:

YES I have spoken have no objection

Theresa:

the QMC convening Authority, and of this search request.

This legal determination is limited to the propriety of conducting the administrat i on search itself. As I expressed over the phone, I am concerned about protecting OMC-Prosecution attorney work product . Accordingly, prior to disseminating the results o f this search, please consult with the OMC-Prosecution Records Keeper to make sure that all such records are protected from inadverte nt ctistribution.

Vi r

Paul

Paul A. Embroski Assistant Genera l Counsel Special Assistant United States At torney Washington Headquarters Services Department of Defense The

12. ISR Completion Dnle: • 03121 /2013

13. ISR Completion comm ent. • Records Found: (YES) • Over 20.000 bits; the large number of hilS is because the scope or the scurch was broad.

If search would have been included the number of hilS wOltJd have been reduced.


RELEASE ""pell,"E'hibil154 (KSM el ". ) Page 33 of 48 Page 37 of 52



Attachment E



Tarin, Danielle S (IV OSD OMC Prosecution

From: Sent: To: Subject: Signed By:

Danieller

RS5 dd - EITSD Investigative Search Requests Monday, March 25, 2013 8:06 AM Tarin, Danielle S CIV OSD OMC Prosecution

ADMOOOSOl-13 OMC PROSECUTORS 776789 Court Order

I found out from lhe tech th is morning after we talked that the SPIR results have also been transferred to the loca tion provided. Therefore those results will also be researched and the names you identified to me will be redacted .

I have a question. In EITSD process of submitting an ISR there is a question lhat asks who wiU be responsible to review the results for privileged or work production information. Here are the names that were provided that would be to review the results. Clemiencia Jemison

and Are these individuals permitted to redact the results?

Thanks,

Investigative Search Request Specialist Greatness consists of

serve.


RELEASE ""pell,"E'hibil154 (K8M., ,,.) Page 35 of 48 Page 39 of 52



Attachment F



Tarin, Danielle 5 (IV OSD OM( Prosecution

From: Sent:

White, Edward S (APT OSD OMC Prosecution WE,dnesclav,. March 20, 2013 5:16 PM

To: Ms OSD OMC Convening Authority; Tarin, Danielle S CIV OSD OMC Ms WHS-EITSD

Subject: RE: Qosi comms search Signed By:

Thanks,_ We'll follow up with Ms._ and _

Ms OSD OMC Convening Authority wedn,,.,.,,y, Nimh 20, 2013 5:12 PM

To: White, Ed ward 5 CAPT OSD OMC Prosecution; Tarin, Danielle 5 CIV OSD OMC Prosecution;_ WHS-EITSD

Ms 050 OMC Convening Authority

Importnncc: High

Good Afternoon CAPT White, Pcr our conversation this afternoon I spoke to the Branch Chief, Ms. in regards to the research for the Court Order for OMC. They have several o ther o rganizations they are doing research also. J spoke the to her staff that is leading search_ and of this afternoon they were sHU researching the Court Order for OMC. The amount and yea rs for the research is insurmountable amount. Hopefully the research may be eompleted by Thursday, 21 March 2013.

Good Afternoon CAPT White needs 10 request an extens ion through an Affidavit. He can tell you exactly what he needs.

If anyone need further ass istance just le t me know. I'm st:ill on BB: office.

and on my way back to the

Sincerely,

CAP

Special Security Officer OSD/OMC


1 RELEASE ""pell,"E'hibil1S4 (K8M., ". )



- Original Mes-sage --From: White, Edward 5 CAPT 050 OMC Prosecution

W,·dn,esday.March 20. 2013 01 :18 PM lVlS v,.1.J OMC Convening Authority; Tarin. Danielle S OV OSD OMC Prosecution

Subject: Qosi camms search

-Stopped by your office about 20 minutes ago, aJter my meeting with YNC_ but you were out. Sorry 1 mJssed you.

Danicllc lold me you expect to provide us with the resu lts o( the email retrieval for the Qosi case tomorrow. Unfortunately, tomorrow is also our deadline to produce the responsive emails to the Courl - and we'll need lime to review lhem belore submission. So, I'm thinking we need to file il motion to extend our time before COB today. To support that motion we realJy need a wri tten/signed declaration from someone - maybe you. maybe someone at ClO who is working this issue - 10 explain the relevant- facts to Ule Court.

I'm out of the office myself, but would you please enl l me on my SB lhis message? Thnnks.

to discuss when you get

Vir, Ed Wllite

Tomorrow






Attachment G



IBRAHIM A1-lMED MAHMOUD AL QOS!,

Petitioner,

v.

UNITED STATES

Respondent.

DECL ARATION

) IN THE UN ITED STATES COURT OF ) MILITARY COMM ISS ION REVIEW ) ) DECLARATION )-) ) U.S. C.M.C.R. Case No. 13-001 ) ) ) ) )

I. I am an Investigative Search Request Specialist in the Enterprise Infon11ation

Technology Services Directorate (EfrSD) within the \Vashington Headquarters Scrvic,cs of the

United States Department of Defense. My rcsponsibil ities include oversee ing the technical

Investigation Search Request (ISR) Search Team and preparing the requirements for the search.

2. I am overseeing the ISR for documents ordered by the United States Court of

Mil ilat), Commission Review in its February 12. 201 3 and February 26, 2013 Orders in Ai Qusi

\I. Unifed States. No. 13·001 (C.M .C.R. filed Jan. 4, 2013).

3. Barring unforeseen events, ElTSD will complete the ISR for these documents

tomorrow. and will make the results ava ilable 10 counse l fo r Respondent by close ofbllsiness

tomorrow.

4. EITSD' s li mi ted resources const rained EITSO"s ability to complete the ISR

before close of business tomorrow. There are eight ISRs current ly in the EITSD search queue

that vary in scope and priority levels, EITSD must execute ISRs requested by Congress and

ISRs requested under the Preedom of In fo nl1ati on Act, a statute that requi res tbe Government to


RELEASE Appell,to E'hibillS4 (K8M el ". ) Page 40 of 48 Page 44 of 52


respond within a specified lime limit. One pending ISR requires EITSD to search information

from 10,000 users over a twt;nty· ycar time period. A ISQ. each search technician mllst balance

executing ISRs with other work ass ignments. and a limited number of search technicians arc

qual ified to execute the lSRs. Only one technician is qualified to conduct the ISR at issue in Al

Qo;si. Each of these factors impacts EITSO's ability to complete ISRs quickly. EITSD has made

every effort possible to prbvide counsel for Respondent with ihe ISR rcsulLs as soon as it can.

[declare under penalty of perjury Lhat the foregOing is true and correct.

Enterprise Information Technology Services Directorate WashinglOn Headq uarters Services United Stares Department of Defense





Attachment H




From: Sent : To: Cc;

Subject: Signed By:

Danielle.

RSS dd - mSD Investigative Search Requests Tuesday, March 26, 2013 6:31 AM Tarin. Danielle S av OSD OM( Prosecut ion

elY WHS-EITSD; CIV WHS-EfTSD; Tarin. Danielle S CIV erR WHS-ElTSD

WOOOOOOOOO11438 ISR AOMOOOS01-13 OMC Court Order 7767894

You don't have to worry about Sl."Cing any emails with privileged or work production information in the results.

Remember the computer only does wha t you tell iI , it is objective in its sea rch. The sea rch will be any emails FROM or TO the prosecution aHorneys TO the defense or fROM the defense attorneys. Again no responsive records will between the defense attorneys themselves w ill end up in the results. Once the technician inputs the search parameters into search engine it will only provide responSive results based upon those requirements.

The scorch docs not have to be execu ted within the mailboxes of the defense attorneys to provide the responsive results you are seeking.

I hope that helps,

InvesHgnt"ive Search Request Specialist Greatness consists of how serve:.

--n-Original Message---From: Tarin, Oanielle S CIV aso OMC Prosecution Sent: Monday, March 25, 2013 6:26 PM

Mr WHS-EITSD RE: RD ADM000501-13 OMC Court Order 7767894,docx

. ' would you please confirm that EITSD is searching for responsive emails in only the prosecution team members' email accounts?

Thank you.


1 RELEASE Appell,to E'hibillS4 (KSM el ". )



DanieUc

Sent: McmdD v. Mr WHS- ElTSD

To: Tarin, DanieUe 5 OV OSD OMC Prosecution Subject: RD ADMOOOS01·13 OMC Court Order 7767894.docx

Danicllc,

PlcilSC this Requirements Document to make sure I am ilccurate. The word waiv is that correct or should il hove an PIe" wave or is thls un acronym?

Thanks,

Investigative Search Request Specia list Grealness consists or

serve.





Attachment I



Tarin, Danielle 5 ClV OSD OMC Prosecution

From: CN WHS-EJTSD Sent: 27, 2013 7:09 PM To: OSullivan, Michael Col OSD OMC , ,eTR, DoD OGe;

_ , Mr, DODOGC; _ , Mr, Cc: White, Edward 5 CAPT OSD OMC Prosecution; Tarin, Danielle S eIV OSD OMC

Prosecution;_ Mr WHS-EITSD; CTR WH5-EITSD .... Subject: Signed By:

Col O'Sullivan,

There were unforeseen technical issues regarding the search and Operations had to restart the search, The search is running now but it will not be completed until late tonight or tomorrow morning.

The initiailSR results were provided based on the idl;!ntified requirements which met the initia l SLA. The search was modified by OMC. Therefore, the search requ.ired modifications of the search parameters.

There is no way to expedite the search since it has to create and search all the Exchange vaults while at the same time create indexes.

Vir,

Candice

-----Original Message-----From: OSullivan, Michilel Col OSD OMC Prosecution

March 27, 2013 6:28 PM CIV CTR,DoD Mr,DoDOGC;

Mr,DoDOGC Cc: White, Edward S CAPT OSD OMC Prosecution; Tarin, Danielle S CIY OSD OMC Prosecution;_ • Mr WHS-EITSD; CTR WHS-ElTSD Subject: RE:: Current Update as of 1824 - , I thought this search was started a couple of hours ago when we spoke. They're just now getting started?

WH5-EITSD Sent: Wednesday, March 27, 20136:27 PM To: OSullivan, Michael Col OSD OMC Pn",,,:uti'on; CIT, DoD Mr, DoD Mr, DoD OCC Cc: White, OMC Prosecution; TClrln, DanieLie 5 elv OSD OMC Prosecution_ • Mr WHS-ElTSD; CTR WH5-EITSD Subject: : Current Update as of 1824


RELEASE Appell,to E'hibillS4 (K8M e1 ,,.) Page 46 of 48 Page 50 of 52


Col O'Sull ivan,

Operations just started the revised SIPR search this afternoon it is running now.

As soon as we have finished the search and export wiU be done. A completion notification will be sent to everyone on this email string ,

Vir, --Original Message--From: OSullivan, Michael Col aso OMC Prosecution

W"dn,csclay March 27, 20'13 4:4U PM To: CTR, DoD OGC; Cc: While, Edward 5 CAPT OSD OMC Prosecution; _ ClV WHS-EIT5D;

Thanks much Mr_ We appreciate it.

MOS

DoDOGC

To: OSull ivan. Michael Col OSD OMC P",se<ounon; OGC

Mr, DoD

})ro$t'cution; _ WHS-EITSD

Mr,DoD

Cc: White, Edward 5 CAPT OSD OMC Prosecution; Tarin, DanicUe 5 elv aSD OMC Prosecution _ _ ClV WHS-EITSD; Mr CTR Wl-\S-EITSD Subject: RE: Current Update as of 1609

Sir,

We h<l.ve (Teated the mailbox on the SlPR and mapped the 3 OGC reviewers to that mailbox, so on the SIPR it shou ld just be a matter or disconnecting the old pst and reconnecting to the new ps t fi les.

1 will work on creating a s imilar process on the N lPR and that should be completed U,is evening.

Thanks


, UNCLASSIFIED/)'I'(I)Jil'I'I1IBLIC RELEASE Appell". 154 (K8M., ,,. )



CAUTION; This message may contain information proh .. >cled by the attorney-client, attorney work producl, deliberative process, or other p rivilege. Do not disseminate wi thout the app roval of the Office of the DoD General Counsel.

From: OSuUivan, Mjdlael Col OSD OMC Prosecution Sent: March 27, 2013 4:09 PM To: Mr,DoD Mr, DoDOGC

Danielle 5 CIV OSD OMC Pr<)se,:u"i<>rl CTR,DoD

Cc: White, Edward 5 CAPT OSD OMC _ OV WHS-Em;o; II CTR Subject: Current Upda te as of 1609

J usl got off the phone TIley are running the search until it is complete. Here's the search parameters:

111ey are searching only the mnilboxes o f Dirk Padgett, Ralph Paradiso, and Seamus Quinn -and searching o n·ly for cmails that have one or more of the following words or roots: "wai v"; "Clppeal"; "ilppell ate"; and "withdraw." They are sea rching on ly during the period be.tween July 2009 and present.

This search should only produce emails between prosecu tion counselor directed to defense counselor from defense counsel sent to prosecu tion counsel.

He expects the searches on SlPR and NlPR to be done between 1730 and 1800, bla thrn's an estimate.

He wi11load the results, once completed, into the shared drive destination used fo r the same purpose earlier today ,md he will delete tht! o riginal file from that space so there's no confusion about wh ich file needs to go to the privilege review attorneys. At tha t point, we probably need OGe IT (Mr _ or designee) to load that pst lile into the reviewing attorneys' mailboxes so U1CY can conduct the review.

A ll those on this email, let me know if you have any questions or concerns.

Thanks.

MOS

MICHAEL). O'SULLIVAN, Col. USAF Deputy Chief Prosecutor Office of the Chief Prosecutor of Mil itary Commissions 1610 Dc:fcnsc Pentagon WaShulgtlJO DC 20032

