For The Defense, February 2012 - DRI Today

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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 recordsmanagement 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
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