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 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
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.
(April 25, 2005) | Protective
(April 22, 2005)
Indian Trust: Cobell v. Norton - http://www.indiantrust.com
v. Norton, Department of Justice - http://www.usdoj.gov/civil/cases/cobell/index.htm
Trust, Department of Interior - http://www.doi.gov/indiantrust