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Hearing into Indian trust fund security sees delay
Tuesday, May 3, 2005

Internet Vulnerability Documents: OIG Memo 1 | OIG Memo 2 | OIG Findings | Internet Security Systems (ISS) Report

An evidentiary hearing into the Interior Department's computer systems fell apart on Monday after a dispute with the Bush administration failed to produce any witnesses.

Barring any new developments, the proceedings are scheduled to begin this morning in federal court in Washington, D.C. "We're going to have a trial," said U.S. District Judge Royce Lamberth.

Lamberth called the hearing in response to concerns that computer systems housing billions of dollars in Indian trust funds are vulnerable to hackers. A recent internal Interior Department report cited problems with "many systems" at the Bureau of Land Management, prompting the shutdown of the agency's website.

In hopes of getting to the heart of the matter, the plaintiffs in the Cobell v. Norton lawsuit planned to question people with knowledge of the reports and the "penetration" testing that has occurred under a contract with a third-party. But a dispute arose when the Department of Justice indicated witnesses from the third-party company would not appear without a subpoena.

"We were supposed to start with testimony today," said Bill Dorris, a new member of the Cobell litigation team who specializes in government contracting law.

Dorris said the Bush administration never asked the company, identified as Internet Security Systems, to produce a key witness or any relevant trust-related documents. It wasn't until Friday that "they finally had asked [the witness] to appear voluntarily," Dorris told the court.

John Warshawsky, a lawyer for Interior Secretary Gale Norton, vehemently objected to the plaintiffs' characterization of events. "It is not true that I directed ISS not to make the witness available," he said.

Warshawsky acknowledged he had trouble contacting key people at ISS because one was on a "camping trip." Another potential witness wanted by the plaintiffs is on vacation in the Caribbean, he said.

He also blamed part of the dispute on the Interior Department's Office of Inspector General, which engaged ISS to perform the penetration testing. "That's not my client," he said of the OIG. "That's not my authority."

For the plaintiffs, the penetration testing is a key issue in the evidentiary hearing. They hope reports prepared for the OIG can provide a factual basis for shutting down any vulnerable systems.

Government lawyers have turned over an estimated 98,000 pages of documents in preparation for the hearing. But the plaintiffs are still waiting on the OIG documents, which detail testing of computer systems at the Bureau of Indian Affairs, Office of Special Trustee, Office of Hearings and Appeals and the National Business Center in addition to the BLM report.

It is not known what is contained in the reports because Interior won't release them, citing security concerns. A heavily redacted copy of the BLM report has been filed in court but more details may emerge as the evidentiary hearing moves forward. At an April 20 proceeding, a government attorney provided some information about the penetration testing.

In response to major problems identified during the case as far back in November 2001, the Bush administration has spent more than $100 million to beef up its computer network. At the same time, Norton's attorneys have continued to dispute whether Lamberth has the authority to oversee the computer systems.

The D.C. Circuit Court of Appeals supported Lamberth and the Cobell plaintiffs on this point. "It is indisputable that the Secretary has current and prospective trust management duties that necessitate maintaining secure IT systems in order to render accurate accountings now and in the future," the court said.

Court Orders:
Evidentiary Hearing Order (April 25, 2005) | Protective Order (April 22, 2005)

Relevant Links:
Indian Trust: Cobell v. Norton - http://www.indiantrust.com
Cobell v. Norton, Department of Justice - http://www.usdoj.gov/civil/cases/cobell/index.htm
Indian Trust, Department of Interior - http://www.doi.gov/indiantrust

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