For The Defense, February 2012 - DRI Today

Third, reassess and update information
governance and a records- retention plan.
Knowing where data resides that may become
relevant to litigation or a government
investigation in the future is critical to data
preservation efforts. Responding in a timely
manner requires proactively establishing a
process for identifying the data that an organization
needs to preserve, where it resides,
and who has responsibility for the
data. Furthermore, a data- mapping process
can help focus and prioritize information
governance initiatives to reduce and
eliminate obsolete or redundant data before
a duty to preserve it arises. An effective
legal hold management process also allows
an organization to identify data repositories
and areas of the organization quickly that
others will want from an organization most
frequently during litigation discovery and
that an organization has a duty to preserve.
Fourth, educate employees about and
train them on legal holds. An effective legal
hold process depends on the actions of custodians
and data stewards to suspend routine
destruction or alteration of relevant
data. A well-crafted legal hold notice that
clearly and concisely instructs employees
how to act and a process to ensure that
they receive and understand a legal hold
notice are critical elements of reasonable
and good faith preservation. Organizations
that educate and train employees will
reap the investment benefits by improving
the efficiency and effectiveness of their
efforts. Look for opportunities to incorporate
such training into new employee orientations
or annual ethics and compliance
training sessions. Introduce employees to
sample legal holds and walk them through
what an organization expects from them in
response. Consider including a reference to
legal holds in the employee policy and procedures
handbook.
Conclusion
The old adage “an ounce of prevention is
worth a pound of cure” is the best way
to understand the role that a recordsmanagement
policy plays in evidence preservation
and ultimately the e- discovery
process. In managing where an organization
stores records, how long the organization
keeps them, and when the company
will destroy them, a company can effectively
minimize its exposure to spoliation
risks as well as minimize the costs of
e- discovery. As shown, taking small steps
to make sure a company complies with an
existing records- management policy or
creating a new more effective policy will go
a long way toward protecting a company in
the long run.
Detention, from page 60
the Director of National Intelligence, that
the government to which the individual is
to be transferred is not a state sponsor of
terrorism, is capable of exercising control
over the detainee and preventing him or
her from engaging in terrorist activity, and
agrees to share with the United States any
information that is related to the detainee
or his or her associates or that “could affect
the security of the United States, its citizens,
or its allies.” Pursuant to Section
1033 an innocent detainee who is not facing
prosecution under either military or civilian
law, and who is not considered by the
military to be subject to ongoing detention
under the AUMF, could languish at Guantanamo
Bay simply because the Secretary
of Defense is unable to certify that his or
her home country will share its intelligence
information with the United States. Not
only does Section 1033 represent an intrusion
into the sovereignty of other nations,
it represents an unwarranted interference
with the executive branch’s need to have
discretion in deciding the circumstances
under which detainees should be released
from Guantanamo Bay.
Section 1033 also creates a disconnect
between the powers granted by the AUMF,
which authorizes the President to use all
appropriate force, and the provisions of
Section 1033, which strip the President
of any power to determine what happens
to terrorism suspects once the force is
applied. In Hamdi v. Rumsfeld, 542 U.S.
507, 518 (2004), the Supreme Court held
that the detention of enemy combatants
for the duration of the conflict is a lawful
exercise of the necessary and appropriate
force provisions of the AUMF. Thus,
those who oppose the measure contend
that Section 1033 is an end run around a
lawful system of detention and release and
interferes with the President’s need to balance
important foreign policy and national
security concerns. It conflicts with and is
apparently intended to supersede Executive
Order 13492, dated January 22, 2009,
which vested the Secretary of Defense in
consultation with others the determination
of “whether it is possible to transfer or
release the individuals consistent with the
national security and foreign policy interests
of the United States, and, if so, whether
and how the Secretary of Defense may
effect their transfer or release.” See Executive
Order No. 13492, 74 Fed. Reg. 4898
at §4 (Jan. 22, 2009). Finally, countries
that may have otherwise been willing to
accept Guantanamo detainees may refuse
to do so simply as a result of the condi-
tions attached to the release. Thus, Section
1033 creates a very real risk that innocent
persons who have not been tried and who
are not deemed to be subject to continued
detention under the AUMF could languish
at Guantanamo indefinitely.
Those who support the measure argue
that terrorists have been released from
Guantanamo Bay only to re-emerge as
enemy combatants against the United
States in subsequent terrorist attacks. Thus,
creating barriers to decisions that may
be motivated by a political desire to close
Guantanamo Bay is necessary to preserve
our national security.
Conclusion
Sections 1031, 1032 and 1033 of the NDAA
reflect an ongoing struggle to find the
appropriate balance between protecting
our country from terrorist attacks and preserving
the constitutional rights that our
country has always stood for. Opponents
contend that we can accomplish both our
national security concerns and our commitment
to justice by utilizing the variety
of law enforcement tools already available
to us. Supporters of the disputed sections
claim that national security must come
first and that the military is best suited to
deal with issues of national security.
70 ■ For The Defense ■ February 2012