PREPARED STATEMENT OF
LEAD DEFENSE COUNSELFOR PETTY OFFICER DANIEL M. KING
SHAPIRO PROFESSOR OF PUBLIC INTEREST LAW
GEORGE WASHINGTON UNIVERSITY LAW SCHOOL
Thank you, Mr. Chairman.
Mr. Chairman, members of the Subcommittee, my name is Jonathan Turley. I currently represent Petty Officer Daniel M. King and I served as the lead defense counsel for Petty Officer King during his prosecution for alleged espionage. I am also a professor at George Washington University Law School where I hold the J.B. and Maurice C. Shapiro Chair for Public Interest Law.
I greatly appreciate your invitation to discuss the King case. As a defense attorney and an academic in the national security field,1 I have never encountered a more troubling case. My co-counsel and I were formally invited to testify late last week and have attempted to assemble a comprehensive presentation of the facts in this case over the weekend. Each of our statements today will isolate different aspects of these facts. Like my colleagues, I wish to associate myself with their formal statements as part of our unified presentation. After discussing the charges and basic evidence in the case, my comments will focus on the areas previously identified by the Committee as the subject of today’s hearing. LT Matthew Freedus will then offer a detailed presentation of the facts in this case and the course of the investigation and prosecution. LT Robert Bailey will then detail the specific violations and abuses that have been identified and made part of the record. We understand that your time is limited and, with the consent of the Committee, we have submitted three formal statements. I apologize for the length but we find ourselves in the same position as Blaise Pascal when he apologized for the length of a letter because he lacked the time to write it shorter.2
1 I previously served as an employee with the National Security Agency (NSA) and I have worked as both a litigator and an academic in the national security field. I have been a criminal defense attorney for over a decade and I teach constitutional criminal procedure as well as litigation courses. My past national security cases include the Nicholson espionage case in Virginia, the nuclear courier case in Tennessee, the Area 51 case in Nevada, and other related cases, including consulting roles on prior espionage cases. As an academic, I have written a variety of articles in the constitutional, surveillance, and national security law areas. See, e.g., Jonathan Turley, Through a Looking Glass Darkly: National Security and Statutory Interpretation, 53 Southern Methodist University Law Review 205-249 (2000) (Symposium); Jonathan Turley, Paradise Lost: The Clinton Administration and the Erosion of Presidential Privilege, 60 Maryland Law Review 205-248 (2000) (Symposium); Jonathan Turley, “From Pillar to Post”: The Prosecution of Sitting Presidents, 37 American Criminal Law Review 1049-1106 (2000); Jonathan Turley, The “Executive Function” Theory, the Hamilton Affair and Other Constitutional Mythologies, 77 North Carolina Law Review 1791-1866 (1999); Jonathan Turley, Reflections on Murder, Misdemeanors, and Madison, 28 Hofstra Law Review 439-471 (1999) (Symposium); Jonathan Turley, The Not-So-Noble Lie: The Nonincorporation of State Consensual Surveillance Standards in Federal Court, 79 Journal of Criminal Law and Criminology 66-134 (1988); Jonathan Turley, United States v. McNulty: Title III and the Admissibility in Federal Court of Illegally Gathered State Evidence, 80 Northwestern University Law Review 1714-1752 (1986).
2BLAISE PASCAL, LETTRES PROVINCIALES 114 (Paris, Fain 1830) (“I have made this [letter] longer than usual, only because I have not had the leisure to make it shorter”).
While we have been prevented by the Navy from submitting a full account of this case, including the full scope of unlawful conduct by Navy officials,3 my statement today contains unclassified information that establishes a number of facts that should be alarming for anyone who values the rule of law and our constitutional guarantees. First, these facts establish (as found by the military judge in this case)4 that there was never any compelling evidence of espionage against Petty Officer King. To the contrary, the sole direct evidence was a statement signed by Petty Officer King that the military judge found unreliable and possibly coerced. The constitutional violations by the NCIS in this case made it virtually impossible for this statement to be admitted as evidence in any trial. Moreover, audio tapes discovered by the defense shortly before the dismissal of the case show that this statement was contemporaneously contradicted. These tapes reveal that Petty Officer King repeatedly denied the truth of the statements and stated that he was signing statements to simply give the NCIS what it wanted to end the interrogations. There was no corroborating evidence supporting any act of espionage despite the fact that such evidence would normally be available. Ultimately, in a case where a sailor was held for 520 days without a charge, the military judge found that the evidence did not support a probable cause belief that a crime was committed or that Petty Officer King committed any such crime. He found that there was no need to continue the Article 32 proceeding in light of the lack of such evidence and called upon the Navy in the interests of justice to dismiss all charges.
3 On Friday, I sent a letter to Senator Shelby on the continuing failure of the Navy to return the classified defense notes and materials to prepare this submission to the Committee. Earlier, the Committee responded to a defense request for such access after the Navy repeatedly refused to turn over our material to prepare a report on violations in the case. The Committee was told by the Navy that such access would be given to the defense. At 4:40 p.m. on Friday evening, the Navy called my office to say that access would be given to the defense. Obviously, with our testimony due Monday afternoon, such access is meaningless. Accordingly, the defense has asked the Committee to leave the record of this case open to allow for a classified submission after the defense is given (1) its classified material, (2) access to a SCIF and a cleared computer, and (3) assistance of our security expert. We have asked for ten days to submit such testimony.
4A copy of Judge Winthrop’s recommendation for dismissal has been attached as Appendix A to this testimony.
Second, these facts establish a range of serious national security violations committed by Navy officials and NCIS agents in this case. Government witnesses admitted to “serious” violations of national security and made false statements under oath. Third, the facts of this case establish a range of constitutional violations that independent observers have described as unseen in this country for decades. The most frightening aspect of this case was never the alleged act of espionage but the unlawful conduct of the Navy in its blind pursuit of an espionage case.
It is common for our political leaders to condemn nations that are justifiably viewed as undemocratic or authoritarian. In the last week, U.S. politicians have denounced the treatment of Chinese detainees held without formal charges after a scientist was held for 26 days without a charge by China. See, e.g., Rowan Scarborough, Beijing Holds U.S. Boy 26 Days, The Washington Times, March 22, 2001, at A1. Petty Officer King was held for 29 days of interrogation5 without a charge, even a preferred charge.6 Petty Officer King was held for 520 days without a formal charge before his case was dismissed upon the recommendation of a military judge due to a lack of evidence to support even the minimal probable cause standard. Two appellate decisions established that Petty Officer King was in custody from October 2, 1999. From October 2, 1999 until his release on March 9, 2001, Petty Officer King drained the entirety of his funds to support his family’s expenses. He was also unable to be present for the birth of his grandson or for the final days of his mother’s life. Yet, when the Navy dismissed the case within hours of the recommendation of the military judge, the Navy issued a formal statement attacking this sailor as a “traitor.” As will be shown below, the Navy then released public statements that included demonstrably false information in the case to the media.
5 King was held for 26 days by the NCIS for such interrogation before being placed in the brig at Quantico. However, as is noted in the last section, the NCIS continued to interrogate King in the brig despite the public statements to the contrary.
6 In the military, a preferred charge is akin to a formal allegation. A person is not charged in the constitutional sense until after the completion of an Article 32 investigation. The Article 32 investigating officer determines if the evidence is sufficient to support probable cause for a formal charge. The “convening authority” then “refers” a formal charge to a military judge who hold the military equivalent to an arraignment.
What happened to Petty Officer King is alien and antithetical to our system. For that reason, it is essential for the transcript of the proceedings in this case to be completed and for the unclassified evidence to be made public. This evidence and testimony shows high-level government officials admitting to the commission of unlawful acts in the case, including admissions of prior false statements under oath and serious national security violations. The Navy would prefer to have the dismissal of this case portrayed as merely bad lawyering but the truth is far more serious and unsettling. In the name of protecting our constitutional system, the Navy violated the most basic guarantees of that system. It became the very thing that it was created to protect against. Unfortunately, such violations are not uncommon in the military and particularly in the Navy. While politicians often speak of wanting the very best for our men and women in uniform, service personnel are treated as second-class citizens when it comes to their constitutional rights. Some of this disparate treatment is due to archaic and unequitable rules governing military prosecution. However, the greatest single contributor is the consistent and notorious violations of the Naval Criminal Investigative Service (NCIS). I am not alone in my appraisal of the Navy or the NCIS. In my opinion, the NCIS is the most abusive police organization in this country. After numerous scandals and congressional inquiries, the NCIS continues to routinely violate the rights of sailors and Marines and continues to operate outside of the restrictions of either constitutional or professional standards. This case is perhaps the most egregious example of the NCIS culture and practices. However, it is not unique.
Ironically, the unconstitutional and abusive tactics used by the NCIS in this case not only undermined any legal case but defeated any legitimate search for the truth. After triggering an espionage investigation, NCIS agents found that they had no evidence and no spy. Rather than admit to a colossal blunder, these agents continued to interrogate a sailor for 19 and 20 hour sessions for 29 days. When no evidence was available to support their catastrophic misjudgment, They sought to create evidence. The NCIS manufactured a theory of espionage without foundation and then took steps to compel statements to support that theory. The tapes and evidence secured by the defense in this case reveal agents seeking a trophy not the truth.8
8 This trophy-seeking was more than evident when Special Agent Stuart Wilson actually had fellow agents videotape his delivery of Petty Officer King to the brig in Quantico, Virginia.
There are numerous questions in this case that warrant congressional investigation. First, the record establishes abuses in interrogation and investigation that should not occur in any country with even a pretense of observing the rule of law. This is a case that should never have been submitted for prosecution. It is a case that should have been investigated in a professional manner without use of crude third-degree tactics and exhaustion techniques. The tapes in this case show an effort to get a confession at all costs – an imperative for NCIS agents who started a full-fledge espionage investigation without any evidence to support their efforts. The NCIS has a long and controversial history of such abusive interrogation and a confession-centric approach to criminal investigations. The NCIS’ overwhelming emphasis on confessions is an anachronism abandoned by professional police organizations after the 1960s. Had Petty Officer King been given a lawyer as he requested, it is likely that the Navy would have received cooperative statements without the marathon interrogations and sleep deprivation. The NCIS adopted an approach that made any statements legally inadmissible and factually suspect. The rule of law and good investigative techniques are not inherently in conflict. To the contrary, by denying Petty Officer King basic protections and rights, the NCIS created conditions that made any statement highly suspect and ultimately produced a series of conflicting and rambling statements of little evidentiary value. While NCIS agents appear to romanticize the role of the spy-catching interrogator breaking a suspect spy, modern police organizations have long abandoned such an emphasis in favor of independent investigative techniques.
Second, the evidence in this case establishes a series of confirmed illegal acts committed by Navy officials and NCIS agents. These acts include admitted acts of perjury, serious national security violations, and knowing false statements given to the court, the Congress, and the media. For example, the Navy has insisted that it had little choice but to attempt to prosecute Petty Officer King for two alleged national security violations. These alleged violations concerned the disclosure of program information to unauthorized individuals. In King’s case, the alleged violations involved disclosures to individuals with Top Secret/Sensitive Compartmented Information (TS/SCI) clearances in a Sensitive Compartmented Information Facility (SCIF), including one disclosure to an individual who was scheduled to be read into the program the following week. The Navy describes these violations as “serious” and worthy of jail time. However, the record in this case shows literally hundreds of more serious violations by NCIS agents and Navy officials, including the disclosure of program information to unauthorized individuals with no clearances and the playing of a videotape with TS/SCI information in a hotel room on a standard VCR to an audience of uncleared individuals. The defense repeatedly raised such violations but Navy officials steadfastly opposed taking corrective actions and allowed the further compromise of program information. The transcript in this case, if completed, will show a pattern of such violations.
Finally, there are significant questions over the competency of program officials and the Navy’s ability to perform basic tasks related to program security. Various witnesses from program offices were called in this case. This testimony revealed shocking incompetence and lack of knowledge. For example, the first expert witness called in this case, Mr. Ed Glenn of the defense liaison division, was found by the military judge to be incompetent to discuss programs on which he is assigned. One government witness, Mr. William McKinney, testified that Mr. Glenn’s testimony on these programs was “appalling” and that he was incompetent to answer questions on the programs. Another witness, Ms. Mary Rose McCaffrey, Mr. Glenn’s supervisor, was also found incapable of giving knowledgeable testimony on programs under her supervision. Ms. McCaffrey could not identify what information fell into particular programs; did not understand basic national security regulations; admitted to serious national security violations; admitted to submitting false information under oath; and admitted that she could not even distinguish between classified and unclassified terms that she had repeatedly reviewed for classification. Another witness, NCIS agent Ron Bell, was dismissed after giving testimony that was facially absurd as to the meaning of basic classification rules. Mr. Bell, for example, claimed that the fact that an agent had used Yahoo! as an internet search engine was a classified “source or method.” Not a single government witness was able to make it through cross-examination in the case on their knowledge of the areas in which they worked. Moreover, neither the Director of Naval Intelligence (DNI) nor his underlings took steps to protect program information when dozens of on-going violations had been identified by the defense. Ms. McCaffrey testified at the end of the case that no inquiry had been made by the DNI to ascertain and to correct violations that are now established on the record. After the defense raised such violations for more than a year, no one from the DNI or any office has contacted any member of the defense team for information on these violations or the individuals responsible. The DNI was personally informed of these violations and failed to take appropriate steps to protect program information in the case or impose minimal security safeguards.
I. THE LACK OF EVIDENCE OF ESPIONAGE IN THIS CASE.
Since the dismissal of all charges in this case, the NCIS and the Navy have attempted a variety of explanations for why a sailor was held for 520 days without a formal charge on evidence that a military judge found to be insufficient to even support a probable cause determination. It is time to distinguish fact from fiction.
This case is based on a single signed statement. Courts have historically looked with disfavor on such confession-based prosecutions. It is widely accepted that false confessions occur in this country and that confessions without corroboration are insufficient to initiate a criminal prosecution, let alone support a charge for a capital punishment offense. While most police departments moved away from a confession emphasis in investigations after Miranda, the NCIS continues to place an inordinate emphasis on interrogation and continues to engage in heavy-handed techniques to trick or coerce confessions from sailors and Marines. As discussed below, NCIS agents are trained in interrogations with the use of a manual that construes virtually any response to a criminal allegation as evidence of guilt. According to the interrogation manual for the NCIS, an individual who denies an allegation or expresses a concern over his future is viewed by the NCIS as indicating guilt and beginning a confession. The King case is a text-book example of the abusive and counterproductive use of interrogations to shape evidence to fit the preordained judgment of agents. Faced with a common “no opinion” result on a polygraph examination, NCIS agents immediately framed the case as an espionage investigation and continued to hammer a sailor until he justified their initial decision.
When Petty Officer King took a routine polygraph on September 29, 1999, the polygrapher recorded a “no opinion” result. This is an extremely common result that simply means that the test cannot be read to establish truth or falsity. The test results should not have caused alarm. Rather, the test should have been repeated under conditions compatible with polygraph examinations. It was not necessary to start an interrogation on espionage, which would only increase the anxiety of the individual and serve to elevate his response to later questions on espionage. A routine “no opinion” glitch on a polygraph was allowed to mutate into an espionage investigation from the very first day.
The NCIS isolated facts that vaguely reinforced a theory of espionage such as fantasy accounts and prior unhappiness with the Navy. Rather than simply administer additional polygraphs to determine if this result was just a glitch, the NCIS agents framed the investigation in espionage terms and lied to this sailor by telling him that he failed the polygraph and was under suspicion for espionage. No one has suggested that additional polygraphs were not warranted after a “no opinion” result. Rather, the criticism of the NCIS is that it quickly degraded the value of polygraphs and interrogations by immediately framing the matter in espionage terms and engaging in abusive interrogation techniques that destroyed the reliability of such examinations.
It is important to remember that this investigation did not begin with any suggestion of espionage or deception on a polygraph. Petty Officer King simply had a “no opinion” polygraph like thousands of people every year in this country. Rather than simply scheduling a follow-up polygraph for the next day and telling the subject that the examination could not be read, NCIS agent Robert Hyter chose to interrogate Petty Officer King about espionage. It was the NCIS, not King, that raised espionage as if it were the natural progression from a “no opinion” polygraph. Notably, the two detailed military defense counsel in this case also had “no opinion” results on their polygraph examinations. The NCIS, however, did not begin an interrogation on espionage but simply stated that such results are common and require additional testing. In dealing with Petty Officer King, however, the NCIS took a disastrous leap of judgment and began to create a record that would become a self-perpetuating process.
On the first day after the “no opinion” polygraph result, Agent Hyter specifically pressed King for any “fantasies of espionage.” King readily admitted that he had such prior fantasies in his 20-years of intelligence work. Ironically, in a recorded deposition by the defense, Hyter later admitted that he also had such espionage fantasies as did anyone working in this field.9 Hyter recorded these fantasies in a typed statement and had Petty Officer King sign the statement. Hyter also had King attest that there were times years earlier when he was angry with the Navy. The NCIS now had a statement that elevated espionage as the central issue in the investigation despite that fact that in this September 29, 1999 statement, King expressly stated that, while he had had such fantasies, he never engaged in such conduct. Within twenty-four hours, therefore, the NCIS had created statements that supplied a justification for continued espionage investigation. The “no opinion” polygraph now had a sinister look due entirely to the chosen emphasis of the interrogator. The NCIS had created a damning context for reviewing any polygraph examinations: an angry sailor who fantasized about espionage.
9 Certainly, there are points in these interrogations where NCIS agents appear to yield to fantasies of their own. These interrogations appear to come directly out of Le Carre novels as opposed to professional interrogation manuals. Agents appear to revel in the use of safe houses and espionage terms (often used incorrectly). It is telling that when Petty Officer King challenged Special Agent Hyter about his clearance and access for some of the information, King recounted how Hyter became agitated and incorrectly stated that he is “cleared for everything.” In fact, most NCIS agents have relatively low clearances.
On the second day, interrogations were increased with a heavy emphasis on espionage. Between such interrogations, Petty Officer King was put through a series of polygraph examinations with new questions beyond those used for a CSP examination. Once again, the results came up indeterminate on the first polygraph examination of the day and was further interrogated. In later polygraph examinations, the NCIS recorded signs of deception. However, in three of the five polygraph sessions, Petty Officer King continues to register “no opinion” results. The agents again had Petty Officer King sign a statement about his fantasies. Petty Officer King once again denied that he ever committed espionage or had foreign contacts.
Within a couple of days, the NCIS had begun a full-fledge espionage investigation. Agents were flown to Guam from around the country. Teams proceeded to do tag-team interrogations and Petty Officer King was taken into custody and moved from safe house to safe house. In these safe houses, the lights were left on at night while agents blared the television or ringed the telephone every couple of minutes as King tried to sleep. Interrogations would last 15 hours to 20 hours at a stretch. King would be interrogated for 29 days. On October 2, 1999,7 King continued to deny any espionage in a written statement. However, the NCIS has added specific facts surrounding his anger with the Navy. Once again, the NCIS was creating a narrative that justified its emphasis on espionage while continuing to polygraph a sailor who is now terrified of the implications of these examinations. Professional police organizations are careful to avoid such self-fulfilling investigations and DoD regulations prohibit such practices. The NCIS, however, was now looking for a spy and never looked back to determine whether it had artificially framed the case.
7 The Navy-Marine Court of Criminal Appeals wrote two opinions that found that Petty Officer King was confined since October 2, 1999. The NCIS and the Navy have repeatedly told media that this sailor was not confined until he was actually placed in the brig despite the fact that he was under 24-hour guard and was told that he would be shot if he tried to run. What is troubling is that these statements continue to be made after a court repeatedly denied the Navy’s theory of confinement and the Navy did not contest the finding that Petty Officer King was in custody from October 2, 1999 in the later appeal to the Court of Appeals for the Armed Forces.
On October 5, 1999, Agent Stuart Wilson, first stated that King had sent a disk to the Russian embassy. King had never mentioned any disk being used in any act of espionage. He had consistently denied any espionage. King asked to speak with a lawyer. Wilson told him that “he would not get away with that” and stated that he ate “JAG lawyers for breakfast.” As will be shown below, written documentation proves that King requested a lawyer at least twice but the NCIS refused and continued interrogations and polygraph examinations. The interrogation continued for more than 19 hours. At the end of the session, King signed a statement at 3:30 a.m. on the morning of October 6, 1999. He had been interrogated for 30 out of the prior 39 hours. This was this statement that the government used as the basis for the espionage charge in this case.
As noted by Judge Winthrop, this statement was the only direct evidence offered by the Navy to support espionage. The lack of corroborating evidence was repeatedly raised in the proceedings. This issue would come to a head near the end of the case. CDR Mark Newcomb had told producers at CBS Sixty Minutes that the case against Petty Officer King was supported by corroborating evidence. I immediately wrote to CDR Newcomb on March 8, 2001 and asked him to identify the corroborating evidence. The evidence in the case had been exhaustively reviewed during the proceedings to date and no corroborating evidence had been offered. I objected that either CDR Newcomb’s statements to the media were false or he was withholding evidence. CDR Newcomb wrote back and confirmed that no corroborating evidence has being withheld in the case and that all of the relevant evidence had already been given to the defense. The defense also raised this issue in the closed proceedings shortly before the dismissal. CDR Jowers could not identify any corroborating evidence except a single document that did nothing but confirm facts known by Petty Officer King from his position. When King was asked what type of material could have been on such a disk, King simply recounted information from his work. This document, a log, merely showed that such information did exist and Petty Officer King could recall material that was contained on classified disks.10
10 Such “corroborating evidence” would exist in any such case. This was akin to asking a bank employee suspected in a bank robbery to give the details of the inside of the bank or material reviewed in her capacity. When faced with an allegation of a false confession, such a document does nothing more than corroborate that the individual possessed classified information.
Given this record, it is highly disturbing to read public statements that the evidence in this case was “strong.” Judge Winthrop specifically rejected statements that the evidence in this case was “strong.” He stated in his opinion that “I don’t believe the government evidence on any of the charges in this case is strong. On the other hand, the defense evidence in extenuation and mitigation is significant.” Notably, Judge Winthrop was not speaking of the evidence needed to convict in this case. He was speaking of the minimal evidence needed to bring a charge.
The function of an Article 32 hearing is to determine if the evidence in a case is sufficient to meet the minimal standard of probable cause to support a formal charge. Judge Winthrop stated that the evidence in this case fell short of this standard and that there was no need to continue the proceedings in light of the lack of sufficient evidence. He specifically noted that the signed statement in the case was contemporaneously contradicted and that there was merit to defense arguments that the statement was coerced and inadmissible. Judge Winthrop further noted that such a statement would require corroboration to be admissible – even if it were not barred on the basis of interrogation abuses by the NCIS. He noted that no substantive corroborative evidence was offered in the case. Judge Winthrop noted the reliance of the government on the log and said that such corroborating evidence did not even meet a “slight” corroboration standard to consider a confession as evidence. Judge Winthrop expressed doubt that, even if the statement was found to be voluntary, “I question whether the mere existence of the daily log provides independent evidence of an ‘essential fact’ of the confession, i.e., the act of espionage.” See Appendix A.
The most troubling aspect of this case is the fact that no one at the NCIS or in the Navy had the integrity or courage to admit that this case was wholly unsupported. Instead, the Navy leaked false information on the evidence in this case and, in the case of CDR Newcomb, repeatedly tried to suggest the existence of evidence that the military judge expressly refuted. After billing this case as a counterintelligence coup during the Wen Ho Lee period, the Navy discovered that it had no evidence to support its claim. Petty Officer King then became a terrible inconvenience and a professional danger for Navy and NCIS officials responsible for this case. To this day, the Navy and NCIS continue to release demonstrably false statements in this case to excuse their own willful misconduct at the expense of this sailor and his family. 11
11 Some of these statements are quoted in the final section of this statement.
II. THE MISCONDUCT OF THE NAVAL CRIMINAL INVESTIGATIVE SERVICE.
A. NCIS and its Long-Standing Pattern of Abusive and Unprofessional Conduct.
One of the issues that that the Committee asked us to address in this hearing was the conduct of the NCIS. The NCIS has long been the focus of controversy. Both the NCIS and its predecessor organization, the Naval Investigative Service (NIS), are routinely accused of the violating the rights of sailors and Marines as well as undermining important cases through sloppy and abusive techniques. It is impossible in the short period of time before this hearing to full recount the history of controversy surrounding this police organization. I ask only that the members of the Committee review articles, congressional hearings, and cases referring to the NCIS and NIS.
The media stories alone reveal two immediately apparent facts. First, the NCIS and NIS are the subject of the vast majority of the stories on abuses in military investigation – not the Army and not the Air Force. It is the Navy that is the virtually exclusive subject of allegations of abuse by witnesses, military officers, attorneys, and investigative reporters.12 See, e.g., Gaylord Shaw, Methods of Interrogators Under Fire in Sex-Spy Case, Los Angeles Times, June 14, 1987, at 1 (quoting descriptions of the Navy investigators as “running amok,” “using Gestapo tactics,” “heavy-handed,” and fabricating statements.”). Second, these stories contain an astonishing degree of uniformity in detailed allegations of long interrogations, abusive use of polygraph examinations, biased interrogations, botched investigations, and procurement of false statements from witnesses and suspects. What is also interesting is that after some of the most notorious investigations, such as the investigation of the U.S.S. Iowa explosion, the Navy released statements virtually identical to the one in this case: proclaiming that its investigators did a professional and thorough job.
12 131 Cong. Rec H 9872, November 6, 1985 (“The Naval Investigative Service is operating without respect or professionalism.”) (statement of Congressman Bates on introduction of the “Naval Investigations Reorganization Act of 1985”).
It is important to consider some of these cases13 because they reveal the same modus operandi that is evidenced in the King case. A brief review of the various areas of NCIS and NIS abuses and bias is warranted as background.
13 As noted by LT Freedus, the NCIS operates in military courts with effective immunity. According to military judges, NCIS cannot be held in contempt for misconduct in military courts. Thus, unlike every other police organization, the NCIS knew that no military judge has authority over them in discovery abuses, false testimony and other areas.
1. Interrogation abuses. The NCIS places heavy emphasis on both interrogations and polygraph examinations. Allegations of abuses in both areas are rampant. Even witnesses to sexual assaults have recanted statements given to Navy investigators and charged that interrogations by the Navy were so abusive that they resulted in a re-victimization. Female Sailors Re-Victimized in Navy Rape Cases, San Diego-Union Tribune, October 23, 1990, at A1. Witnesses and independent Navy personnel have repeatedly denounced NCIS for “Gestapo tactics” and third-degree techniques. These accusations often come from witnesses and independent Navy personnel removed from any personal interest in particular cases. See Glenn F. Bunting, Gave Federal Agencies Little Help in Breaking Big Espionage Cases; Navy Investigative Unit Has Reputation of Weakness, Los Angeles Times, Sept. 2, 1985, at A1 (“one Navy commander said that he could not believe ‘the witch hunt’ employed by NIS agents . . . ‘They remind a lot of people around here of the KGB.'”); id. (“A Navy master-at-arms investigator said that during a recent three-year assignment on the aircraft carrier Ranger he watched with amazement whenever NIS agents interrogated sailors . . . ‘[when] the NIS agent gets you in that little room, it can get nasty . . . I tried to look the other way sometimes. They’d threaten to ruin a sailor’s civilian life by putting information in his files that he was a thief.”).
The NCIS continues to place an alarming emphasis on interrogation and confessions. Most of the agents in this case were trained with a manual, still in circulation, on the “art” of interrogation. This manual certainly explains some of the misconduct in this case and the initial blunders made by NCIS agents in Guam. The Navy tells its agents that
Frequently, during interrogation a suspect declares, “I would never do that, I’m trusted, I have a good record, I wouldn’t jeopardize 16 years service, etc.” Actually the suspect is subconsciously confessing.
Apparently, a denial is not the only way that the NCIS will register a confession in interrogation. The manual also tells its agents to look for a statement like “‘What’s going to happen to me?,’ because the suspect is beginning a confession.” With such training, it is certainly understandable why a “no opinion” result on a polygraph examination could mutate into an espionage investigation.
What is interesting is that the NCIS does instruct its agents of the danger of producing false confessions. The NCIS states in the manual that “a person will make false admissions” in some interrogations and agents are told to “avoid coercion, unlawful influence, and unlawful inducement, such as promises or threats of any kind, either expressed or implied. An interrogation which in point of time [sic] is prolonged so as to deny a suspect reasonable opportunity for mental relaxation, food, drink, use of toilet facilities, etc is prohibited.”
It is an accepted fact that false confessions occurred every year in this country and that perfectly innocent people have confessed to crimes that they did not commit.14 From the time of Blackstone, courts have looked with disfavor on out-of-court confessions due to their notorious unreliability and connection to interrogation abuse.15 False confessions can occur as an attempt to escape a coercive interrogation (the so-called “stress-compliant” false confession) or when ” a suspect has no memory of a crime, yet he readily admits that he committed the crime and adopts a sincere belief that he is guilty,” (the so-called “persuaded false confession”).16 The NCIS appears to create the very circumstances that have been identified as magnifying the chances of false confessions in their use of long interrogations, psychological pressure tactics, and its heavy emphasis on polygraph examinations as part of the interrogation process.
14 For example, individuals like Robert Moore confessed in 1995 to felony murder in a case that was billed as a death penalty prosecution until it became obvious that the confession was entirely false. See generally, James R. Agar II, The Admissibility of False Confession Expert Testimony, 1999 Army Lawyer 26 (1999). Experiments with innocent individuals have shown that they could be forced to confess under the right circumstances. Id. at 28 (discussing study with 75 college students). Sixty false confession cases were detailed in Richard J. Ofshe & Richard A. Leo, The Social Psychology of Police Interrogation: The Theory and Classification of False Confession, 16 STUD. IN L. POL. & SOC’Y 189 (1997)
15 4 WILLIAM BLACKSTONE, COMMENTARIES, at 357 (stressing that “hasty, unguarded confessions . . . ought not to be admitted as evidence” in treason cases). Blackstone refers to out-of-court confessions as “the weakest and most suspicious of all testimony; even liable to be obtained by artifice, false hopes, promises of favor, or menaces; seldom remembered accurately, or reported with due precision; and incapable in their nature of being disproved by other negative evidence.” Id. (discussed in George C. Thomas III, The End of the Road for Miranda v. Arizona?: On The History and Future of Rules for Police Interrogation, 37 Am. Crim. L. Rev. 1, 5 (2000)).
16 Richard J. Ofshe & Richard A Leo, The Decision to Confess Falsely: Rational Choice and Irrational Action, 74 Den. U. L. Rev. 979, 999 (1997), see also Agar, supra (discussing these studies).
One of the central purposes of compelling the government to “take the arrested person without unnecessary delay before the nearest available magistrate”17 is to deter the use of long periods of interrogation.18 The Supreme Court has emphasized that the requirement of the federal rules are to prevent a suspect from being “taken to police headquarters in order to carry out a process of inquiry that lends itself . . . to eliciting damaging statements.” Mallory v. United States, 354 U.S. 449, 454 (1957) (discussed in Thomas, supra). The Navy-Marine Court of Criminal Appeals held twice that Petty Officer King was in confinement (the military equivalent to custody) from October 2, 1999. The NCIS, however, did what the federal law and the Supreme Court expressly forbid: it moved King from safe house to safe house as he was interrogated for weeks.
17 FED. R. CRIM. P. 5(a).
18 See generally George C. Thomas III, The End of the Road for Miranda v. Arizona?: On The History and Future of Rules for Police Interrogation, 37 Am. Crim. L. Rev. 1 (2000).
The specific dangers sought to be avoided by prohibiting holding individuals in custody for interrogation is the abuse of the individual’s constitutional rights and the real danger of false confessions. The courts have repeatedly found interrogations that were less egregious than the King interrogations to be per se abusive and the resulting confessions to be coerced.19 For example, in Ashcraft v. Tennessee, 322 U.S. 143, 153-54 (1944), the Supreme Court threw out a confession as involuntary after 36 hours of interrogation without sleep.20 King was interrogated for 29 days and, when he signed the statement in this case at 3:30 a.m. on October 6, 1999, the NCIS had interrogated him for 30 of the previous 39 hours.
19 Blackburn v. Alabama, 361 U.S. 199, 211 (1960) (finding a confession coerced when police interrogated a mentally unstable individual for nine hours in a closed room); Spano v. New York, 360 U.S. 315, 321 (1959) (eight hour interrogation without counsel violated the Fourteenth Amendment); Payne v. Arkansas, 356 U.S. 560 561 (1958) (use of mental or physical coercion found to violate constitution); Fikes v. Alabama, 352 U.S. 191, 197-98 (1957) (holding that, even in the absence of physical abuse, the interrogation of an incompetent individual for hours at a prison made his statement involuntary); Watts v. Indiana, 338 U.S. 49, 55 (1949) (excluding as involuntary confession of man obtained after six days of interrogations from 5 p.m. to 3 a.m.); Malinski v. New York, 324 U.S. 401, 410 (1945) (confession obtained after holding and interrogating an individual for four days after arrest was inadmissible). These cases and others are discussed in Thomas, supra, at n. 21.
20 It is notable that, even in its failed congressional effort to supplant Miranda, Congress mandated that the voluntariness and admissibility of any out-of-court statement be determined with a consideration of “the time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment” and “whether or not defendant was without the assistance of counsel when questioned and when giving such confession.” 18 U.S.C. §3501 (1994).
2. Polygraph abuses. The NCIS has been repeatedly criticized for the abusive use of polygraph examinations in the course of interrogations. See e.g., Gaylord Shaw, Marines Drop Charges of Spying Against Bracy; Cite Insufficient Evidence Against Corporal Who Served as Guard at Embassy in Moscow, Los Angeles Times, June 13, 1987, at 1. The use of polygraph examinations in interrogations can be a highly coercive factor in compelling an interrogation. Notably, one of the common factors in studies of false confession is the heavy use of polygraph examinations as part of interrogations. See Ofshe & Leo, supra, at 1008-88. While polygraph examinations are not viewed as reliable or admissible in federal courts, they can be used as effective interrogation techniques. However, these tests are only as reliable as their polygraphers. There is a powerful interpretative element to finding the line between “no deception” and “no opinion.” The defense has been denied access to the original readings of these examinations by the NCIS and has not been allowed to have the original results reviewed independently by polygraph experts.
As shown in the final section of this testimony, the NCIS clearly violated DoD regulations in the administering of the polygraph examinations to Petty Officer King. The NCIS used polygraph examinations in this case to pressure Petty Officer King to confess. DoD Polygraph Program, DoD Directive 5210.48-R, January 1985 at 3-3 (“The polygraph instrument shall not be utilized as a psychological prop in conducting interrogations.”). NCIS agents repeatedly lied to King that he had failed polygraph examinations when he only registered a “no opinion.”21 The examination were facially ridiculous.22 NCIS agents would interrogate King with affirmative statements of his guilt and then strap him into polygraph examinations to see if he registered any elevation when espionage was mentioned.23 It is astonishing that so many of the tests came up “no opinion” under these circumstances. King was given at least five polygraphs in a single day during his interrogations by the NCIS.24 He was not only lied to about his results but lied to about the meaning of these results. NCIS agents told King that these results indicate that something did happen. In this sense, the polygraph examinations were used in combination with the NCIS insistence that King write down his fantasies. NCIS agents convinced King that these results indicated that his fantasies were simply suppressed memories. The impact of this tactic is evident in the videotaped interview from October 19, 1999 in which King says that he had no memory of the espionage facts where he retains a clear memory of other facts. King tells Dr. Michael Gelles that he needs hypnosis to determine if these were just fantasies. The reason that King gives for his uncertainly is that, despite the lack of any memory of the events, the polygraph results show that “I have something inside me.” Neither Gelles25 nor Agents Wilson or Sherry disabuse King of this false assumption.
21 Once again, the defense has been denied these print-outs for independent review. Accordingly, it is not clear that these tests were properly viewed by these same agents as “no opinion” as opposed to “no deception.”
22 It is notable that the agents never detailed King’s use of various weight-lifting, weight-loss, and medical drugs that might have an effect on these tests. Despite the fact that many of these drugs were seized in his room, the NCIS was wholly unconcerned that they might have had an impact on King’s results.
23 As noted below, the agents never asked King to detail his use of a variety of muscle-building, weight-loss drugs as well as medical drugs seized in his room. Some drugs can have a pronounced effect on polygraph examinations and can exaggerate responses to stressful questions. U.S. Congress, Office of Technology Assessment, Scientific Validity of Polygraph Testing: A Review and Evaluation – A Technological Memorandum, reprinted in 12 Polygraph 198, 217 (1983). Some drugs like meprobamate, a common tranquilizer, are widely recognized as incompatible with such examinations while others are considered inconsistent with reliable testing. DoD regulations states clearly that “polygraph examinations shall not be conducted if . . . the examinee is mentally or physically fatigued [or if] the examinee is unduly upset, intoxicated, or rendered unfit to undergo an examination because of excessive use of sedatives, stimulants, or tranquilizers.” DoD Polygraph Program, DoD Directive 5210.48-R, January 1985 at 3-4.
24 While this is the maximum allowable polygraph examination under DoD regulations, it does not mean that this was good practice in this case. In fact, the regulations specifically prohibit the use of prolonged interrogation in conjunction with polygraph examinations.
25 Dr. Gelles has already been notified of our intention to file formal charges against him with the American Psychological Association. Dr. Gelles has refused to give licensing information to the defense or to respond to allegations of violation of basic canons of professional conduct as a licensed psychologist. Dr. Gelles is on the videotape telling an individual with stated suicidal thoughts to return to interrogation and that the agents are not only his close friends but that they would stand with him “forever.” Dr. Gelles specifically tells King that, if he offers “corroborating” evidence to the NCIS, he might be able to give King the hypnosis that he seeks.
It is notable that, in the absence of corroborating evidence, the NCIS continues to argue publicly that King’s failure on polygraph examinations justified its conduct in this case. As shown below, these public statements are rife with demonstrably false information. The NCIS never reveals in its public statements that King did not fail the first polygraph, but that it agents simply recorded a “no opinion” result. The NCIS never reveals the administration of multiple polygraph examinations during periods of interrogation or King’s repeated complaints that he could no longer tell the difference between fantasy and reality. The NCIS never reveals that King was examined during long abusive periods of interrogation and after they concluded that he was unstable and possible suicidal. id. at 3-4 (‘Polygraph examinations shall not be conducted if . . . the examinee is mentally or physically fatigued [or if] the examinee is unduly upset, intoxicated, or rendered unfit to undergo an examination because of excessive use of sedatives, stimulants, or tranquilizers.”). Obviously, if someone is struggling with such confusion and has been lied to about prior tests, the results on these examinations are highly unreliable. It is difficult to believe that any polygrapher would administer tests under these conditions, let alone find these tests to be reliable. One can only conclude that the tests were simply interrogation ploys that continued to reduce the resistance of the suspect.
3. Bias. The bias of the NCIS and NIS against woman and homosexuals is a continuing scandal. After the Tailhook scandal, the NIS was forced to address findings of clear bias in the handling of sexual offenses and the treatment of women. See generally Andrea Stone, Navy’s ‘Good-Old-Boy System Shook Up, USA Today, September 25, 1992 at 10A(“The report . . . shows that investigators were ‘not really keen on having women in the Navy, didn’t like taking on admirals, and their whole goal was to get rid of this thing.”) (quoting Rep. Patricia Schroeder); Female Sailors Re-Victimized in Navy Rape Cases, October 23, 1990, at A1 (noting that the Navy admitted that its investigative agents needed “sensitivity training” on issues of bias); see also Gaylord Shaw, Methods of Interrogators Under Fire in Sex-Spy Case, Los Angeles Times, June 14, 1987, at 1 (NAACP accusations of abuses of bias by Navy investigators). The bias of the NCIS against homosexuals is a continuing controversy. While the attempt of the NIS to pin the explosion of the U.S.S. Iowa on a gay sailor is the most notorious example, the NCIS continues to face widespread allegations of homophobia and anti-gay practices. See generally Roberto Suro, Navy Agents Into Gay Bars; Rights Groups Call Drug Trafficking ‘Sting” Operations Unfair, The Washington Post, June 17, 2000 (noting that NCIS Director Brant denied that gay bars were targeted but NCIS agents in testimony “could not cite any heterosexual establishments that were targets of NCIS surveillance.”).
More relevant to the instant case is the NCIS and NIS reputations for engaging in biased investigations.26 Navy investigators are notorious for prematurely jumping to conclusions and proceeding to exclude all information that is inconsistent with the chosen theory. This criticism has not only been made by congressional figures, attorneys, and journalists but by NCIS agents. For example, in the U.S.S. Iowa explosion case, an NCIS agent admitted that, after they came up with the idea of an unhinged homosexual sailor, “they chose to ignore other possibilities.”27 Rehabilitating the Navy’s Police, The National Journal (Government Executive), February 1995. In congressional hearings, various witnesses found that the Navy investigators chose to ignore information not consistent with their theory and did not conduct a professional, objective investigation.28 Another Navy agent leveled the same accusation at the service in a separate review: “I believe that they start out with a theory that they presume to be truth, and they fight to make it truth.” Bucking the System, ABC News Day One, Jan. 3, 1994.
26 Agent Sherry was the defendant in one such controversial case where a witness filed suit after Agent Sherry conducted a search on his apartment to obtain evidence of homosexual contact and HIV tests in his relationship with Petty Officer. Agent Sherry seized the witness’s two-page HIV report showing that he was HIV-positive on the basis that the Navy was preparing to prosecute the Petty Officer. The Bivens action ultimately failed. No charges were ever brought by the Navy against the Petty Officer. See Roe v. Sherry, 91 F.3d 1270 (9th Cir. 1996).
27 It is noteworthy that in the past the DoD Inspector General (who has been asked to look into this case) has not proven viewed as especially aggressive in investigating NIS and NCIS abuses. In the U.S.S. Iowa explosion, the DoD IG proclaimed the investigation “thorough, complete and expeditious.” The Iowa investigation ultimately became a national disgrace and congressional investigators criticized the investigations as flawed and incomplete. Rehabilitating the Navy’s Police, The National Journal (Government Executive), February 1995. The IG also cleared the NIS over the mysterious disappearance of pages in the NIS final report that happened to reveal the presence of former Navy Secretary H. Lawrence Garrett III at the Tailhook conference. Id. But see A Botched Probe; Tailhook Investigators Failed Responsibility, the San Diego Union-Tribune, Sept. 25, 1992, at B-14 (discussing the IG’s finding that the Navy “badly botched” the Tailhook investigation.”). The Navy has been repeatedly accused of shielding high-level officials while relentlessly pursuing enlisted personal. The greatest example was the virtual cover-up of the theft of automatic weapons by a navy Admiral and the shielding of a son of a high-ranking Navy official. See Glenn F. Bunting, Gave Federal Agencies Little Help in Breaking Big Espionage Cases; Navy Investigative Unit Has Reputation of Weakness, Los Angeles Times, Sept. 2, 1985, at A1 (in a case in which an admiral kept 24 Soviet-made AK-47 rifles captured in the invasion of Grenada, the Navy decided “no further investigations were necessary because Vice Adm. Joseph Metcalf had ‘accepted responsibility’ for taking the weapons. Metcalf was reprimanded while several lower-ranking soldiers and Marines face courts-martial.”)
28 See, e.g., U.S.S. Iowa Investigation, Hearing of the Subcommittee on Investigations of the House Armed Services Committee, December 21, 1989 (‘[T]he collection by NIS was not in my mind an objective or thorough analysis . . . insufficient data was collected . . . [the process] was not objective . . . Contradictions that were raised in the materials in my opinion were not attended to, and in brief it is my conclusion that the date is qualitatively and quantitatively weak.”) (testimony of Ronald S. Ebert, Senior Forensic Psychologist) (emphasis added); id. (“There are major problems with the way the Naval Investigative Service collected its data, leading to tremendously biased sorts of information that are passed on to the FBI . . . a number of competing hypotheses appear not to have been investigated in any depth.”) (emphasis added) (testimony of Dr. Alan Berman, Professor of Psychology).
Witnesses in criminal investigations have repeatedly come forward to object to the conduct of Navy investigators and their resistance to any information that does not fit a predetermined theory. Peter Cary, Navy Justice, U.S. News & World Report, Nov. 9, 1992, at 46 (“NIS targets from admirals to seamen complain that agents often make up their minds in advance about a person’s guilt or innocence, then build a case to support their theories.”). A former prosecutor who worked with the NIS explained the Navy technique of investigations: “What they do is they interview 15 people. And if the potential witnesses have something favorable to say, they won’t reduce it to a sworn statement; they will just produce a memo that the person has nothing to offer. So you end up with a pile of evidence on a guy that does not have anything favorable in it, and people are accused where they should never be accused in the first place.” Id. Witnesses have come forward to object that agents materially changed their statements to add incriminating facts that they expressly denied. Id. (quoting a witness in a case, later dismissed, that “‘I told the [agent] that wasn’t how it went . . . but they just kind of blew me off.’ When [the witness] continued to object . . . the agent told her ‘This is just – I need it for my records. It’s just a statement.'”). Such cases are too numerous to relate in this statement. See generally Peter Cary, Navy Justice, U.S. News & World Report, Nov. 9, 1992, at 46 (describing various cases).
The King case is only the most recent example of this problem. On the first day, NCIS agents followed a simple “no opinion” polygraph result with questions directed toward espionage. King should have been simply scheduled for a new polygraph examination before creating fear or anticipation of the questions on espionage. By focusing on espionage and lying to King that he had “failed” his first examination, the NCIS proceeded to create emotional distress that would inevitably be registered on later tests. This is particularly the case when King is told to write down fantasies of espionage and formally sign them as confessions. King repeatedly denied any espionage in these early days but the NCIS was unrelenting in pushing its espionage theory. It is very possible that, if King had simply been told the truth that his test had registered a common “no opinion result” and rescheduled, it is very possible that he would have passed. We will never know. The agents proceeded to confront this sailor with allegations of espionage, lied to him about results on the examinations, and then re-tested him to see if he elevated on questions in that area. Not only did the NCIS prematurely adopt of theory of espionage but they preordained the results of the examinations. It is notable that, even when reports were completed showing a lack of corroborating evidence and indications that King could not have physically performed the alleged act, the NCIS never wavered. As in other cases, agents in the King case had begun a high-profile investigation for espionage and no one was willing to admit to the possibility that it might have been the NCIS agents and not King who pushed the case into this area.
4. Procuring False Statements. Navy investigators have been repeatedly accused of telling suspects to write down false statements or fantasies that were later introduced as evidence. For example, in the bungled NIS espionage investigation involving the Moscow embassy, the Navy admitted that one of its agents told Marine Sgt Clayton Lonetree to “tell us a lie, tell us anything” in getting signed statements in the case. See Nicholas C. McBride, Lonetree Appeal Will Challenge Fairness of US Military Courts, The Christian Science Monitor, Sept. 2, 1987, at A3. The Navy has a long-standing history of engaging in abusively long interrogations and documenting fantasies as facts.
Consider the similarity of this account from a witness in the Moscow Embassy investigation” to the facts in the King case:
Williams . . . says that he was interrogated during three days in April by the NIS . . . “This kept up for hours and hours . . .the agents continued to harass me, trying to get me to say that I had knowledge of the fact that Bracy received $35,000. We went over and over this fact. They kept saying that if I had this knowledge I would later be charged for withholding evidence, that I would go to jail and that I could be relieved or my career would be ruined. They would not accept the truth . . . . Williams said that his interrogation “did not finish until I agreed with their so-called case scenarios . . . . All day long, I kept arguing with them about what could have happened and their changing around what I was saying. They asked me to speculate. When I told them what could have happened they documented it as fact.
Gaylord Shaw, Methods of Interrogators Under Fire in Sex-Spy Case, Los Angeles Times, June 14, 1987, at 1. In this same investigation, the Navy investigators gave another Marine a polygraph examination in a hotel room and then proceeded to “question him during the next two days for more than 16 hours, giving him five lie-detector tests.” Id. Another Marine kept in another hotel room and subjected to “20 hours of questioning over the next two days [and] . .. five lie-detector tests.” Id. As in the King case, the agents finally got one Marine, Cpl. Arnold Bracy to sign an incriminating statement that he insisted was coerced. The charges against Bracy were later dropped and the Navy was charged with “shabby and unethical conduct” in the interrogations and “improperly us[ing] lie-detector tests to coerce a confession from the Marine.” Shaw, supra, at 1.
Once again, the King case contains strikingly similar facts. In his 29 days of interrogation, King was questioned for 19 and 20 hour sessions and repeatedly given polygraph examinations as part of the interrogations. The audiotapes discovered by the defense show agents forcing King to write down accounts that he states are merely dreams or fantasies. King is heard on the tapes objecting that none of these accounts are true. The agents, however, persist in getting signed statements of dream sequences. Agents also admit to telling King to write down how he might have hypothetically committed espionage.
Ultimately, the agents succeed in destroying any ability of Petty Officer King to distinguish between fantasy and reality. Yet, none of this confusion is included by the agents in the signed statements. While King is contemporaneously stating that he did not believe that events actually occurred, the agents still have him sign the statements as fact. As in these other cases, the NCIS simply wanted a confession and would leave it to others to sort out the truth. Moreover, the tapes show agents actively raising the interrogation of King’s two young daughters and dragging his family into the case, if he did not confess. Cf. Lynumn v. Illinois, 372 U.S. 528, 534 (1963) (investigators violations the constitution by threatening the custody of suspect’s children to obtain confession); Rogers v. Richmond, 365 U.S. 534, 535-36 (19610 (invalidating confession made after police threatened to arrest the suspect’s wife). Agents continue to lie to King when he comes up “no opinion” on polygraph examinations and tells him that his guilt is obvious. At points, King is saying “Oh my god, oh my god” when he hears (falsely) that he had failed another test.
All of these techniques are directed at one overriding interest of the agents: to get a statement that would show that they had succeeded in catching a spy. King’s state of mind is obvious on the videotape on October 19, 1999 when he is seeking hypnosis to find out the truth and is stating that a polygraph examination shows that he must have done something. The tapes are pathetic not because of what the NCIS did to this sailor but the willingness of agents to use such crude tactics to secure signed statements at any cost.29
29 The Supreme Court has long held that the very “concept of justice” bars a prosecution based solely on an out-of-court confession and demands corroboration. Opper v. United States, 348 U.S. 84 (1954). This rule is designed to prevent precisely the type of abusive interrogation and prosecution that we saw in this case. The fact that Judge Winthrop found no such compelling corroborating evidence in this case only magnifies the abuse of holding a sailor for 520 days of confinement without a charge. Let alone bringing a capital punishment charge on that basis.
5. Sloppy techniques and unprofessional investigations. There is a common misunderstanding that the blunders and abuses of the NCIS in this case and other cases are merely the result of their haste to determine the truth. Certainly, the Navy has suggested this as a factor in public statements in this case emphasizing the urgent need to protect national security. The heavy-handed and abusive tactics of the Navy routinely result in damaging cases beyond recovery. In fact, if one searches the term “botched” in the same sentence as NCIS and NIS, a virtual flood of examples and cases is produced. While the NCIS has consistently given itself high-marks and even referred to itself as one of the premier law enforcement agencies, independent assessments are far more damning. Otto Kreisher, Navy’s New Top Cop Says Media Give His Crew a Bum Rap, San Diego Union-Tribune, April 19, 1994, at A9 (“Law enforcement experts and civil rights advocates outside the Defense Department have been critical of NIS agents for overly aggressive and intimidating tactics and too much reliance on lie detector tests in their investigations.”); Glenn F. Bunting, Gave Federal Agencies Little Help in Breaking Big Espionage Cases; Navy Investigative Unit Has Reputation of Weakness, Los Angeles Times, Sept. 2, 1985, at A1 (“[T]he NIS has developed a reputation inside and outside military circles as a weak agency that does not aggressively pursue investigations, according to dozens of interviews with Navy officials, enlisted personnel and congressional sources.”).
The King case is the ultimate example of how the NCIS can quickly destroy any legal or intelligence value of interrogations with a suspect. For days, Petty Officer King repeatedly denied any espionage. As in other cases, the NCIS forced King through a ludicrous series of interrogations, polygraph examinations, and renewed interrogations. Given the “no opinion” result, there should have been some recognition that the agents might be creating an artificial record and self-perpetuating results. Certainly, there should have been an increasing concern that interrogations might be elevating responses on the polygraph examinations. Instead, the agents continued to interrogate for 29 days despite indications that the suspect was potentially suicidal and was experiencing obvious problems in distinguishing fantasy from reality. King was the only clear way of determining the truth. Forcing him into 20 hour interrogations and to repeatedly recount fantasies would serve only to destroy the clarity and competence of the suspect. If the only desire was to get a statement at any cost, certainly this approach was successful. However, if the interest is determining the truth, the NCIS could not have adopted a more disastrous approach.
Petty Officer King was never a spy and there was never any disk. However, it is important to note that, regardless of the underlying facts, the NCIS guaranteed that the results of these interrogations would never see the inside of a courtroom. In this way, the NCIS succeeded in destroying a critical source for counterintelligence information while also destroying any legal basis to sustain a charge in this case. If one looks at other national security investigations, no competent agency has engaged in this type of gum-shoe antics. Notably, after a series of prior bungled investigations, one of the areas that congressional committees sought to exclude from NCIS jurisdiction was “counterintelligence work.” Art Pine, Naval Investigative Service to be Revamped; the Agency Has Come Under Attack Since the Bungled Inquiry into the Tailhook Sex Abuse Scandal, Los Angeles Times, Sept. 26, 1992, at A15. King’s case demonstrates the obvious inability of the NCIS to perform any investigative role in this sensitive area. Ultimately, the NCIS proved a defense attorney’s dream in destroying any chance for prosecution in this case. Fortunately in this case a military judge found that there was never any compelling evidence that a crime ever took place. The more alarming prospect is the chance that the next case could involve a serious espionage target like Jim Nicholson or Aldrich Ames.
In a recent interview, nationally renown constitutional scholar, Yale Kamisar of Michigan Law School stated that the misconduct of the Navy in this case has not been seen in this country for decades. Professor Kamisar stated that the closest case was from “1963 where the person was held–just questioned for 16 hours incommunicado just once and the court thought that made the confession involuntary and, therefore, inadmissible. So 26 days–I mean, you’d have to go way back to the 1930s to find a case that was that outrageous.” Barbara Bradley, Navy Petty Officer Held for 500 Days on Suspicion of Spying for Russia Finally Released Without Being Charged, National Public Radio, March 28, 2001. I certainly concur in Professor Kamisar’s judgment. The consistency of the facts of this case with past scandalous Navy investigations show that the NCIS continues to operate as a rogue organization that is undeterred by prior scandals, congressional investigations, and botched cases. To the contrary, the NCIS remains a virtual period piece of an investigative service. It continues to operate in a manner that should shock the conscience of anyone who believes in the rule of law. One can only imagine the outrage if a police organization outside the military interrogated someone for 29 days and held a person for 520 days without a charge. Such a case would be unheard of in the civilian world and viewed as virtually medieval. Yet, we allow this organization to continue to abuse suspects and witnesses simply because they are in the armed services. Our soldiers and sailors deserve better – as does our constitutional system.
B. National Security Violations by NCIS Agents.
Before addressing the conduct of the NCIS vis-à-vis Petty Officer King, it is important to note that this Committee has been previously informed of serious national security violations by NCIS agents in this case. These violations are wholly distinct from the constitutional and statutory violations discussed below. If completed, the transcript in this case will establish a myriad of actions considered to be “serious” violations by program managers. These violations include the disclosure of program information to unauthorized individuals, the improper handling of program information, the active solicitation and retention of program information without proper access, and the failure to protect program information upon notice of violations. Some of the documented violations in this case involve multiple violations. For example, the NCIS played a videotape containing program information on a standard VCR in a hotel room to an audience of uncleared agents. This violation, and others, were repeatedly raised by the defense. The NCIS and the Navy ignored our objections. Later, the Navy admitted that serious violations had occurred, including the videotape incident but failed to take any corrective action.
The seriousness of the NCIS violations can be easily ascertained from its own position in this case. In court papers and public statements, the NCIS refers to the two alleged national security violations by Petty Officer King as extremely serious and states that such violations had to be both investigated and prosecuted. The two alleged violations involved the disclosure of program information to individuals with TS/SCI clearances in SCIFs. The NCIS agents, however, revealed program information in hotel rooms, revealed program information to people without clearances, and retained program information on uncleared computer and in files cabinets. The alleged security violations by Petty Officer King pale in comparison to these wanton violations.
Without access to our classified notes and materials, we cannot supply a detailed account of all these documented violations. I have attached past letters describing some of these violations. See Appendix B. Once again, the defense asks for the opportunity to submit a classified supplement statement after our classified notes are returned.
III. THE MISCONDUCT OF THE UNITED STATES NAVY AND PROGRAM OFFICIALS.
The conduct of the Navy in this case has become a national outrage. In addition to scathing media coverage, various individuals have publicly called for investigations and apologies, notably including such calls from people in the Navy. See. e.g., Lionel Van Deerlin, Is the Navy Violating the Rights Its Swears to Protect?, San Diego Union-Tribune, March 28, 2001, at B-7 (former member of Congress noting that “in the wake of other similar revelations, King’s case suggests that the Bill of Rights may be a stranger to Navy justice.”); Editorial, The Navy’s Secret Mistake, The Navy Times, March 26, 2001, at 52 (“The King Case didn’t rock just one sailor’s faith in military justice. It poses a challenge to anyone’s faith in the system. An open, complete and independent investigation is warranted. As is an apology to Petty Officer King.”); Keith Taylor, Trampling Basic Rights in the Name of National Security, The Navy Times, March 12, 2000 (detailing prior Navy/NCIS abuses and warning of another “railroad job”); Vince Crawley, Navy Spying Case Pits Rights vs. Military Secrets, Navy Times, May 15, 2000 (discussing the Navy’s restriction on confidential attorney-client communications).
A. Unconstitutional Confinement.
Petty Officer King was confined for the longest period in military history without a formal charge. The King case is rife with violations of core constitutional and statutory rights. Notably, Navy officials were aware of these violations and continued to hold this sailor without any legal basis. Ultimately a military judge found that they held this sailor without sufficient evidence to meet probable cause to bring a charge. One cannot claim to be protecting the Constitution from foreign threat by violating its most fundamental precepts. This is precisely what the Navy did in the King case.
One of the central concerns of the United States Constitution is the guarantee that the government could not hold a citizen without a formal charge or a prompt opportunity to prove his innocence. To this end, the Sixth Amendment of the Constitution expressly guarantees that in the United States all “accused shall enjoy the right to a speedy and public trial.” U.S. Const., 6th Amend. The government is held responsible for administering an “orderly expedition” of charges against the accused. Smith v. United States, 360 U.S. 1, 10 (1959). The speedy trial guarantee is designed to protect an accused from a host of injuries-personal and legal-that result from prohibitively long delay. In that sense, the Sixth Amendment is not “primarily intended to prevent prejudice to the defense caused by the passage of time.” United States v. MacDonald, 456 U.S. 1, 8 (1982). In fact, the Supreme Court “expressly rejected the notion that an affirmative demonstration of prejudice was necessary to prove a denial of the constitutional right to a speedy trial.” Moore v. Arizona, 414 U.S. 25, 26 (1973), citing Barker, 407 U.S. at 533.
While Congress did not have to expressly incorporate such a right into military regulations, it decided to afford even greater protection by making this right a prominent and express part of the Uniform Code of Military Justice (hereinafter “UCMJ”). Article 10 of the UCMJ states that “[w]hen any person subject to this chapter is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him.” The Court of Appeals for the Armed Forces (CAAF) interprets this language as providing protection greater than that afforded under the Sixth Amendment. United States v. Birge, 52 M.J. 209, 211 (CAAF 1999). The military further buttressed the Article 10 provision with Rules for Court-Martial (RCM) 707 requiring the trial of any accused within 120 days. These constitutional, statutory, and regulatory provisions create overlapping and heightened guarantees that no service member can be held without the benefit of a speedy trial. In this sense, the military sought to amplify, not abridge, the right to a speedy trial in its own justice system.
The period of incarceration in this case would shock the conscience of any observer 30 and has caused considerable controversy in the national media.31 This is the longest known case of pre-referral confinement in the history of reported military cases. See, e.g United States v. Bray, 52 M.J. 659 (AFCCA 2000) (dismissed for 357 days of pre-trial confinement, but the court stated that 319 days of pre-referral confinement would have been excessive); United States v. Calloway, 47 M.J. 782 (NMCCA 1998) (dismissed for 131 days of pre-trial confinement); United States v. Longhoffer, 29 M.J. 22 (CMA 1989) (dismissed for 322 days of pre-trial confinement in a national security case involving classified information and security clearances for counsel); United States v. Pasciascio, 37 M.J. 1012 (ACMR 1993) (dismissed for 104 days of pre-trial confinement); United States v. Collins, 39 M.J. 739 (NMCCA 1994) (dismissed for 104 days of pre-trial confinement); United States v. Hatfield, 44 M.J. 22 (CAAF 1996) (dismissed for 106 days of pre-trial confinement); United States v. Schilf, 1 M.J. 251 (CMA 1976) (dismissed for 109 days of pre-trial confinement).32
30 CTR1 King is held in “Special Quarters,” the equivalent to maximum security lock-down condition in which he spends approximately 19-20 hours a day in his six-foot by nine-foot cell.
31 See, e.g., Jim Oliphant, How Not to Prosecute a Spy, Part 2, Legal Times, December 11, 2000 at 3; Craig Timberg, Court Rules Spy Hearing Must Begin Again Publicly, The Washington Post, December 9, 2000, at B02; Laura Sullivan, Military Appeals Court Orders Navy to Restart Spying Trial of Petty Officer, The Baltimore Sun, at 4A; Matthew Barakat, Navy Struggles with Spy Case, Associate Press, December 9, 2000; David E. Rovella, The Next Wen Ho Lee Case, National Law Journal, October 30, 2000, at A4; Matthew Barakat, Espionage Case Proceeds at Snail’s Pace, Dayton Daily News, October 28, 2000, at 6B; Laura Sullivan, Government Gaffes Prompt Third Delay of Navy Spy Case Against Ex-NSA worker Cryptologist, The Baltimore Sun, October 6, 2000, at 13A; Sabrina Eaton, Dispute Over Security Lapse Delays Elyria Native’s Spy Case, The Plain Dealer, October 6, 2000, at 17A; David Rovella, Defense in Spy Case Cries Foul, The National Law Journal, August 21, 2000, at A11; Jim Oliphant, Accused Spy Left Out in the Cold, Legal Times, March 20, 2000, at 1.
32 These cases all deal with post-conviction appeals where the period of pretrial confinement is measured from the point of initial confinement until trial begins. In this case, charges have not been referred and CTR1 King has not appeared before a trial judge.
This Sixth Amendment violation in this case is obvious and deeply troubling. The instant case raises one simple reality. If the 520 days without a formal charge does not violate the Sixth Amendment, there would be no meaningful guarantee to a speedy trial in the military. The recognition and protection of that right cannot be discretionary or arbitrary. The right to appeal within the military courts, and ultimately to the federal courts, is designed to avoid the danger of such a diminished zone of constitutional rights in the military. In fact, Article 10 recognizes the practical effect of military exigencies and affords even greater protection than the Sixth Amendment right to a speedy trial.
Article 10 of the UCMJ requires the government take immediate steps to either try or release a person placed in pretrial confinement. Military courts apply a due diligence standard to this requirement. United States v. Kossman, 38 M.J. 258, 262 (CMA 1993). This standard is more stringent than the Sixth Amendment. United States v. Birge, 52 M.J. 209, 211 (CAAF 1999). Thus, even if the Navy were to argue that it somehow complied with the requirements of the Sixth Amendment, it could not argue that it complied with Article 10. As a result, the government has lost the ability to try Petty Officer King for these charges.
National security cases are routinely prosecuted in the federal system without the type of blunders and delays seen in Petty Officer King’s case. There is no reason why Navy prosecutors could not perform the same minimal tasks as their federal counterparts. The Navy has sought to allow a “learning curve” for its prosecutors that exceeds any reasonable period for a speedy trial.33 While the length of the delay has been the subject of considerable criticism in the media, the reasons for the delay were equally alarming to observers. As the Legal Times recently noted in a recent headline, this case has become the very symbol of “how not to prosecute [an alleged] spy.” See Jim Oliphant, How Not to Prosecute a Spy, Part 2, Legal Times, December 11, 2000. See also David E. Rovella, The Next Wen Ho Lee Case, National Law Journal, Oct 30, 2000, at A4; Laura Sullivan, Government Gaffes Prompt Third Delay of Navy Spy Case Against Ex-NSA Worker Cryptologist, The Baltimore Sun, Oct. 6, 2000 at 13A. From the outset of this case, the Navy appeared entirely ignorant of how to prosecute a national security case and adopted a purely reactive approach by dealing with problems only upon objection to the defense. Moreover, while many delays were clearly the result of demonstrable incompetence, other delays can only be explained by acts of bad faith on the part of the FJA and the government counsel.
33 What is particularly telling in the record is the failure of the trial counsel not simply to lay the foundation for a national security case but her failure to correct known problems during long stays issued by appellate courts. For example, the trial counsel failed to conduct a classification review or provide the required disclosure of evidence to the defense during these periods, leaving these issues to be addressed during the formal proceedings. Despite repeated defense objections, government counsel intentionally left these glaring problems unaddressed for weeks and months, an ill-advised decision that proved fatal to the presentation of its case. Moreover, the failure to provide evidence to the defense despite its availability and repeated defense requests manifests bad faith and assigns the burden for the delay to the government. United States v. Tebsherany, 32 M.J. 351, 354 (C.M.A. 1991).
Several facts establish that the delay in this case were due to a pattern of negligent, dilatory and vexatious practice by the government. First, the government maliciously interfered with the attorney-client relationship by imposing a monitoring agent. This unprecedented violation of the Petty Officer King’s Sixth Amendment right to counsel necessitated a petition for extraordinary relief and a determination by CAAF that the government had failed to adopt “the least restrictive means of providing appropriate protection for classified information and appellant’s right to counsel under the Sixth Amendment and Article 27, Uniform Code of Military Justice, 10 USC § 827.” See United States v. King, CAAF Crim. App. Dkt. No. 20000329, Order of May 8, 2000. Second, the government failed to follow proper security procedures prior to and during the Article 32 hearing despite running defense objections to government violations of federal regulations. The government routinely mishandled classified information and committed security violations that caused multiple delays. Third, the government resisted the repeated defense demands for a new Grunden34 hearing until an extraordinary writ became necessary. At that point, when its actions were under judicial scrutiny, the government acquiesced to the defense demands and conceded the need for a new Grunden hearing. This Court then assigned constitutional error to the government and ordered an entirely new Article 32 investigation. Finally, the government refused to provide basic discovery while insisting that, absent an objection from defense, the Navy would begin Article 32 proceedings without affording defense counsel a chance to prepare or review the evidence. When the defense objected to proceeding without the opportunity to review evidence, the Navy immediately delayed and counted the time against Petty Officer King under RCM 707.
34 A Grunden proceeding is held to establish the scope of exclusion of the public and media from the public Article 32 hearing and the review of evidence in a given case. United States v. Grunden, 2 M.J. 116 (1977).
A review of military cases shows the extreme nature of the violation in this case. The Court of Military Appeals (CMA) has stressed that “3 months is a long time to languish in a brig awaiting an opportunity to confront one’s accusers. . . four months in the brig is even longer.” United States v. Kossman, 38 M.J. 258, 261 (CMA 1993). Under this standard, over fifteen months awaiting a formal charge is unfathomable. It is undisputed that “[t]here must come a time when very long incarceration on a mere complaint deprives a prisoner of a constitutional right.” Ex Parte Monti, 79 F.Supp 651, 654 (E.D.N.Y. 1948). In any legitimate legal system, 520 days of pretrial confinement, especially before an Article 32 investigation is completed, should be presumptively prejudicial. Cf. Hatfield, 44 M.J. at 24 (expressing shock that a service member could be confined for almost a month before his counsel was identified).
The government demonstrated a lack of due diligence with its delay in providing discovery, reviewing the classification levels of relevant evidence, completing the security clearance process, requesting detail of defense counsel, replying to discovery requests, obstructing attempts to remove barriers to Petty Officer King’s constitutional rights, interviewing the accused before the assignment of counsel, and altering its positions on key issues only after the defense petitions the military appellate courts. The perplexing conduct of the government in this case made a mockery of the military justice system. In hundreds of national security cases, there is no recorded case with the type of bizarre errors and blunders that have been established in this case..
B. Misconduct of Individual Navy Officials.
LT Bailey is presenting some of these violations in his formal statement on behalf of the defense. For that reason, I will not dwell on these violations. Navy officials in this case committed a number of violations of federal and military law. Briefly, these violations include:
1. Constitutional Violations. In addition to the speedy trial violations, the Navy committed a number of constitutional violations. Before the dismissal of the case, the defense filed and won two emergency writs of mandamus based on constitutional violations. The first violation concerns the imposition of a monitoring agent for attorney-client communications. See generally Vince Crawley, Navy Spying Case Pits Rights vs. Military Secrets, Navy Times, May 15, 2000. When CDR Newcomb suggested this restriction, I informed him that it was entirely unconstitutional and that the Navy would lose any appeal. CDR Newcomb admitted that he knew of no precedent or authority for the action but proceeded to terminate confidential attorney-client communications anyway. Ultimately, the Court of Appeals for the Armed Forces ruled in favor of the defense and stayed the entire case until confidential communications were reinstated. The Navy eventually admitted that uncleared attorneys and staff could meet without a monitoring agent and abandoned CDR Newcomb’s policy entirely. This resulted in a long delay of proceedings as did the belated action of the Navy to clear lead counsel and LT Bailey for program material.
The second constitutional violation occurred when the Navy failed to properly conduct proceedings necessary to exclude the public from the proceedings. Again, defense counsel repeatedly warned that the interpretation of the Grunden proceedings advanced by CDR Jowers was fundamentally in error. The Navy refused to correct the proceedings. The defense again filed an emergency appeal and again prevailed. The Navy-Marine Court of Criminal Appeals vacated the entirety of the Article 32 proceedings due to the violation of the Sixth Amendment and the Navy had to begin the case from the beginning.
What is troubling about these violations was the failure of CDR Jowers and CDR Newcomb to respond to the obvious constitutional errors identified by the defense. Ultimately, these and other violations cost the government essential time and prolonged the incarceration of Petty Officer King.
2. Release of False and Prejudicial Statements to the Media. As noted in the following section, various named and unnamed officials made false and prejudicial statements to the media in this case in violation of federal and military rules. These statements also included the release of personal, privacy-protected information35 on Petty Officer King’s private life, financial status and other intimate matters. Despite the fact that VADM Mobley, ADM Guter, and CDR Newcomb were informed of these violations, the Navy refused to investigate or act in response to the media articles. As discussed below, some of the misleading or false information was traced to CDR Newcomb and CDR Roxie Merritt.
This included the release of polygraph results at the outset of the case. See DoD Polygraph Program, DoD Directive 5210.48-R, January 1985 at 2-3 (“polygraph examination technical reports shall not be disseminated outside the Department of Defense. Normally, these reports are exempted from release under the provisions of Exemption 7 of the Freedom of Information Act (see DoD 5400, reference (g).”)
3. False Statements Made to Counsel and the Court. The transcript and record in this case also establishes false statements made to defense counsel and to the court. The defense repeatedly objected to knowing false statements by CDR Newcomb. This included his denial that the defense had asked for declassification of documents and a mandatory classification review – despite previous letters and communications produced by the defense. See Appendix C. The defense also documented numerous false statements made by CDR Jowers to the court, including statements that were directly contradicted on the record by government witnesses. These false statements will be documented in the transcript in this case. Witnesses also made false statements under oath. As noted above, this included Ms. McCaffrey who admitted to false statements under oath during her cross-examination.
4. The Failure to Perform Adequate Classification Reviews. As previously discussed, the Navy failed to properly perform basic classification review of material in this case. At least four such reviews were carried out by the Navy. Each review disclosed major errors and violations by the Navy. Program officials like Ms. McCaffrey further admitted in testimony that they could not perform such reviews or determine what material fell under their respective programs. What was particularly alarming was that CDR Newcomb and CDR Jowers did not complete a classification review during the long periods in which the case was stayed for appellate review. Instead, classification reviews were repeatedly performed in the midst of the Grunden proceedings – a ridiculous exercise that resulted in chaos and delay.
5. Unlawful Withholding Exculpatory Information and Discovery. The Navy openly and unlawfully withheld discovery in this case, including withholding exculpatory evidence in the form of audio and video tapes. The Navy was under an obligation to turn over these tapes in the beginning of the case. NCIS agents had previously denied that there were any tapes of questioning other than the actual polygraph examinations. Moreover, in December, 1999, the defense formally requested all such tapes. It was not until a few weeks before dismissal that these tapes were finally turned over to the defense. These tapes were discovered by LT Freedus by accident secreted in the NCIS locker. They represented some of the most exculpatory evidence in the case, including recorded conversations where King is repeatedly denying that signed statements were true. The audio and video tapes reveal a sobbing Petty Officer King asking for the interrogations and polygraphs to end. On the tapes, King repeatedly makes such statements as “I’m starting to make stuff up to please you to get through this” and stating that he was inventing facts “to say something to get through this so I can get back to my family.” King later states that the long interrogations have destroyed any line between fantasy and reality and pleads “I don’t know what I’m supposed to give you.” The NCIS also videotaped a meeting requested by King with a Navy psychiatrist in which King is shown crying and pleading with the Navy doctor to put him under hypnosis or to give him sodium pentothal (truth serum) to show the NCIS that he didn’t commit any act of espionage. King is shown stating that he is exhausted from the interrogations.
The Navy also withheld other significant information and material in a clear effort to hamper cross-examination of witnesses. The most obvious proof of this bad faith conduct was revealed after the dismissal. From the outset of the case, the defense requested the interrogation logs of the NCIS. The Navy withheld the logs from the defense discovery for hundreds of days. However, when CBS Sixth Minutes requested the logs, the Navy gave the logs to the media within four days. Accordingly, the Navy believes that a media organization has greater claim to evidence than a defense in an espionage case where the government was seeking the death penalty. The defense has obtained its copy of these logs from the media.
5. Witness Tampering. During the cross-examination of a government witness, the witness suddenly excused herself on the basis that the cross-examination was too stressful. When the cross-examination was terminated, the defense was in the process of showing that the testimony on direct examination was flawed and incorrect as to the classification of certain documents. This witness, like all witnesses, was placed under a sequestration order and told not to reveal her testimony to anyone. CDR Jowers then called a substitute witness who was not given the documents in question until the day before her testimony. It was clear that the witness was not competent to testify. As to the first document, the witness admitted that she could not even understand the document – despite her testimony on direct examination that particular words fell under a particular program. The judge agreed that she was not competent to testify as to that document. When the witness was then cross-examined on the second document, it became apparent that she was reading from a pre-marked document. I asked to see the document and immediately recognized that bracketed words matched the prior testimony of the earlier witness. Judge Winthrop confirmed that the witness had been sent a pre-marked copy of the document, indicating the previous testimony of the sequestered witness. The faxed copy had been sent from the office of CDR Jowers. Judge Winthrop dismissed the witness and called for an investigation into the witness tampering. This is also recorded as part of the still uncompleted transcript in the case. We are unaware of any steps that the Convening Authority took to investigate this issues, as requested by Judge Winthrop.
6. Interrogation of the Accused Without Counsel. In one of the most shocking violations in the case, it was revealed that CDR Jowers and another prosecutor, LT Mindi Seafer, interrogated Petty Officer King with the NCIS after he was placed into the brig. The prosecutors questioned King on his alleged guilt and possible motives without the benefit of defense counsel. Both CDR Jowers and LT Seafer insist that they cannot remember if they took notes and cannot find any notes. While Petty Officer King stated that he denied the espionage (and Mr. Rogers recalled such exculpatory statements), CDR Jowers and LT Seafer have claimed total loss of memory as to their unlawful and unethical interrogation of this sailor.
C. National Security Violations by Navy Officials.
As with the violations of national security rules by NCIS officials and agents, we cannot present a full account on the violations of Navy officials until the Navy gives us access to our classified notes, access to a SCIF, and a classified computer. However, it is important to emphasize that the transcript in this case contains admissions of national security violations by various Navy officials as well as admissions of giving false information and testimony under oath. It was Navy officials like VADM Mobley, CDR Newcomb, and CDR Jowers who refused to take steps to prevent the continued compromise of program information in this case. It was these same officials who refused to take minimal steps to protect information and correct violations. This led to extremely serious violations of national security rules. These violations are described in the attached unclassified letters.
Despite over a year of formal objections to these violations, the DNI and DCI have never contacted the defense or our security officer for details on these violations. Moreover, Ms. McCaffrey testified on cross-examination that the DNI had not conducted an inquiry. Ms. McCaffrey also admitted that (1) she had committed “serious” national security violations; (2) her staff had committed “serious” violations; (3) “serious” violations had not been disclosed as required by her staff; (4) she had submitted false information under oath in the case; and (5) she had given false testimony on direct examination in the case. CDR Jowers also admitted that serious violations had been confirmed in the case. The defense identified dozens of such violations in the case. Yet, while prosecuting the two alleged violations by Petty Officer King criminally, no one from the Navy or the DNI have made any contact with the defense on these violations that are far more serious than any allegation made against Petty Officer King.
In prior letters to the Director of the Central Intelligence Agency and the Navy, I have given notice of a variety of violations described below.
1. Failure to Investigate or to Inquire into the Allegations.
Various program and Navy officials have steadfastly opposed any formal review of the violations in this case due to their own professional and legal interests. For example, when the defense wrote to the NSA concerning violations by Navy LT Timothy Orr, NSA General Counsel Robert L. Deitz replied stating that no violations had occurred and that the allegations were meritless. Before reaching this conclusion, Mr. Deitz never contacted the complaining party. Accordingly, Mr. Deitz would have had to rely upon conversations exclusively with the accused party to reach such a conclusion. It is shocking that the general counsel for an intelligence agency would be so cavalier about allegations of security violations as not to make any independent inquiry with the complaining party. The failure of any intelligence official to contact the accusing party on these allegations speaks volumes as to the reluctance of responsible agencies to acknowledge and respond to comprehensive violations by their own officials. Months have gone by without such an inquiry, an act of omission that itself constitutes a violation of national security regulations.
It is not possible to give details of the specific allegations of national security violations in this case in an unclassified letter. However, it is important to convey the scope and gravity of these violations. What is striking about these violations is that they involve virtually every possible failure to protect program and other classified information, including violations relating to (1) the physical facility for the discussion of classified material; (2) the marking, storage, and handling of classified material; (3) the disclosure of classified material to unauthorized personnel; and (4) the proper response to unauthorized disclosures and other national security violations. These violations are described with greater detail in Appendix B.
IV. A RESPONSE TO FALSE STATEMENTS MADE ABOUT THE KING CASE AFTER ITS DISMISSAL.
A variety of statements have been made in the aftermath of dismissal of charges in this case. Some of these statements by the Navy and the NCIS are manifestly false. Below are a few of those statements and brief responses to clarify the record in this case.
A. The NCIS Had No Choice But to “Investigate” These Allegations.
After the military judge found insufficient evidence to establish probable cause and questioned whether the signed statement was coerced, the NCIS director repeatedly stressed that the NCIS had an obligation to investigate. A statement was released to the media36 stating the following:
“[W]hen a Sailor with access to the U.S. Navy’s most sensitive programs repeatedly states that he betrayed the Navy’s most crucial secrets, the Navy has an obligation to investigate.”
36 This statement was released by various Navy and NCIS officials, including Commander Greg Smith, Director Media Operations, CHINFO, 703-697-5342 (email@example.com). These statements also parallel public statements by the Director of the NCIS to the media.
This widely disseminated statement is crafted to ignore the actual facts of the case. The NCIS did not start an investigation after Petty Officer King admitted to any betrayal. The record shows that it was not until eight days into the espionage investigation and after over 19 hours of interrogation that King signed any statement on espionage. The NCIS began this investigation after a “no opinion” result on a polygraph examination. It was the NCIS, not King, that probed fantasies of espionage and continued to interrogate exclusively on the subject of espionage. As noted above, the NCIS should have simply given this sailor another polygraph after a common “no opinion” result before triggering a full-fledge espionage investigation. The obvious misleading intent behind this statement is to suggest that Petty Officer King confessed immediately to such acts – a statement refuted on the record of signed statements, the audio tapes and other evidence in this case.37
37 The Navy also told the media that Petty Officer King had “confessed early” and “within hours.” After I was asked to respond to these statements, Navy spokespersons backed away and admitted that there was not reference to any espionage until eight days into the interrogations.
B. “[T]he navy could not responsibly have chosen to simply ignore Petty Officer King’s inability to pass his polygraph and subsequent incriminating statements.”
This statement was also part of the public release by the Navy after the dismissal of the case. As noted above, the statement does not mention that Petty Officer King did not fail his polygraph and did not make incriminating statements in triggering any investigation. Petty Officer King had a “no opinion” result on a polygraph and repeatedly denied any espionage. It was only after eight days of abusive interrogation that he signed such a statement. Both military detailed counsel in this case had “no opinion” results on their polygraph examinations and NCIS agents admitted that everyone in this field has a fantasy of espionage at some time in their career. The Navy chose to continue to interrogate this sailor for 29 days and eventually compelled a statement to justify its bizarre response to this polygraph examination.
C. “Petty Officer King also said he considered going to Russia to hurt the Navy by revealing sensitive information.”
This statement was also part of the public release by the Navy after the dismissal of the case. This statement is also knowingly misleading and false. During the interrogations, King admitted that he had been angry with the Navy at points in his 20-year intelligence career and that he had fantasized of being a spy. However, in the first three statements that he signed, King expressly stated that he never engaged in such acts and they were just passing flights of fancy. Furthermore, NCIS agent Hyter admitted that everyone in this field has such fantasies. The Navy never mentions in its statement that this reference comes from what NCIS agents refer to as fantasies on the audio tapes. The Navy never mentions that Petty Officer King repeatedly emphasized that these were merely fantasies or that he expressly denied engaging in such conduct. The clear effort is to mislead at the cost of this sailor’s reputation and the facts in the case.
D. “Petty Officer King also said . . . that he had committed serious security violations.”
This statement is also part of the public releases by the Navy. Once again, the statement is clearly designed to mislead the public and Congress. The Navy brought two charges for national security violations distinct from the espionage charge. Both of these charges were summarily dismissed by Judge Winthrop as minor allegations that, even if true, should not have been submitted for prosecution. Judge Winthrop wrote:
“Although the evidence may surmount the low threshold of an Article 32 investigation, and that is by no means certain, I don’t believe the government evidence on any of the charges in this case is strong. On the other hand, the defense evidence in extenuation and mitigation is significant.”
“a. The wrongful disclosure allegations, and the related charges involving dereliction of duty and wrongful communication, are exemplary in this regard. The alleged violations occurred while the accused was on duty in a Sensitive Compartmented Information Facility (SCIF) in the presence of fellow servicemembers with high level clearances. Each allegation is based on the recollection of one witness of events that occurred six and four years ago, respectively. Thus, on the merits, the government has one witness who will be required to rely on memory for events that occurred several years ago. With respect to extenuating and mitigating circumstances, it must be emphasized that the alleged disclosures occurred in secure areas to personnel that otherwise had high level clearances, but not access to the specific program in question. Thus, the threat to national security from these alleged violations was minimal. Furthermore, one witness did not take the disclosure seriously, while the other witness considered the information helpful in performing her job. It appears in both cases that the accused was disclosing the information to assist others in performing their duties. These facts constitute strong extenuating and mitigating evidence.”
The Navy brought no other charges of national security violations. Ironically, the defense has detailed over three dozen proven violations of national security rules in this case by Navy and NCIS officials, including the identical violations made against Petty Officer King. Some of these unauthorized disclosures occurred in unsecure locations, like hotel rooms, and involved entirely uncleared individuals. Ms. McCaffrey admitted under cross-examination that she had committed “serious” violations of national security rules as did her staff. CDR Jowers admitted that serious national security violations had been committed by NCIS agents when, in one such incident, agents played a tape containing program information on an uncleared VCR in a hotel room to an audience of unauthorized agents. Yet, no one with the DNI or the Navy or the NCIS have contacted the defense or our security expert for evidence of these violations. If the Navy and NCIS felt compelled to investigate and prosecute such charges, the failure to prosecute violations that are proven on the record belies their public claims.
What is clear is that, unlike the allegations against Navy and NCIS officials, the two alleged violations by Petty Officer King were facially ridiculous from the outset. One charge was based on a witness who twice denied any such disclosure and, only at the continued probing of the NCIS, stated that she had a vague recollection of Petty Officer King gesturing to a map in a way that might have implicitly revealed program information. This had occurred years before in a brief gesture in a SCIF. The witness in deposition admitted that she did not think it was a violation at the time and only came upon the incident after pressing by the NCIS. The other charge was based on a witness that the Navy refused to make available to the defense over months of requests. This witness was actually “read into” the program just a few days after an incident that occurred years ago. The witness stated that King had disclosed program information in a meeting. However, the Navy hid the fact that this witness had previously identified an entirely different program from the program alleged in the classified allegation. The NCIS simply blacked out the name of the program and never revealed to the defense that the witness gave a different account of the disclosure. The defense was able to prove the deception shortly before the case was dismissed when it came across an original copy of the statement with the original program named. No judge would have found this allegation credible and it was extremely unlikely, as noted by Judge Winthrop, that either of these charges would have survived motions to dismiss.
E. “CTR1 King failed multiple additional polygraph examinations, all of which were conducted in accordance with strict Department of Defense guidelines.”
At no point in the numerous statements issued by the Navy or the NCIS is there an admission that Petty Officer King did not fail his first polygraph examination but had a common “no opinion” result. He continued to have such results on the second and third days of interrogation. The suggestion that these polygraphs met professional standards is laughable. First, the NCIS agents never inquired about King’s use of various drugs, some of which were seized in his room. King was openly taking over-the-counter drugs for weight-lifting and weight-loss as well as drugs for medical conditions. These drugs can heighten responses and produce exaggerated responses to stressful questions. Second, the NCIS continued to interrogate King for hours while calling him a spy. He would be moved from highly prejudicial and stressful interrogations into these tests. The audiotapes in this case show King weeping and sobbing. He asks to go to sleep but is told to continue with the interrogations. For long periods, he cannot speak but has to listen to affirmative statements from agents that he is a spy and must come clean for the benefit of his family. Agents repeatedly emphasize that, absent a confession, his youngest girl, aged 15, would have to be dragged into this mess.38 The agents lied to King and stated that he had failed polygraph examinations where he actually produced a “no opinion” result.39 It is common for NCIS agents to lie to suspects as an interrogation technique. However, in polygraph examinations, such lies undermine the results. By telling someone falsely that they failed, you guarantee that the person will elevate on the questions in anticipation on later examinations.
38 Ultimately, the NCIS questioned both daughters and resisted efforts of their mother to be present for the interview of Melissa, age 15. The NCIS lied to both girls and told them that this was merely a routine security update. The NCIS tried to get the girls to incriminate their father on any criminal act ranging from drug use to abuse.
39 It is important to note that these “no opinion” results are merely the conclusion of the same agents who launched this investigation. I have handled polygraph cases in the past and I have asked for the original print-outs. The NCIS has refused to allow me to independently review these tests despite the fact that I hold a higher clearance than most of the agents who participated in the case.
Third, from the first day, the agents forced King to repeatedly repeat prior fantasies and dreams of espionage. The agents repeatedly had King write down the fantasies and sign them as statements. King is heard on these tapes having an increasing difficulty in distinguishing fantasy from reality. Deposed agents admitted that he appeared to be struggling with what was real and what was dream during the interrogations. Yet, while lying to Petty Officer King about failing polygraph examinations, the agents repeatedly polygraphed King on the subject of these recounted fantasies. The use of such examination in this context is absurd and would not meet any professional standard.
DoD regulations expressly state that, before any polygraph examination is administered, agents must “[e]nsure that the person to be examined has not been subjected to prolonged interrogation immediately before the polygraph examination.” See DoD Polygraph Program, DoD Directive 5210.48-R, January 1985 at 2-1. The NCIS repeatedly violated this rule. The DoD regulations expressly state that an examiners should forego examinations if there is any doubt that the individual “is physically or mentally fit to be tested.” Id. at 2-2. “In these instances, the examination shall be discontinued or postponed until appropriate medical, psychological, or technical authorities have declared the individual fit for testing.” Id. NCIS agents admit that they believed King to be potentially suicidal and admitted that he was having difficulty distinguishing fact from fantasy. Nevertheless, they continued to give him multiple polygraph examinations without seeking an appropriate examination for his mental and physical fitness. This rule is repeated throughout the DoD guidelines:
Persons who are not in sound physical or mental condition will not be subjected to a polygraph examination. Should the examiner or examinee have any doubt as to the physical or mental fitness of the examinee, the matter shall be referred to medical authorities. An examiner shall not attempt to make a psychological or physical diagnosis of an examinee.
Id. at 3-3; see also id. at 3-4 (‘Polygraph examinations shall not be conducted if . . . the examinee is mentally or physically fatigued [or if] the examinee is unduly upset, intoxicated, or rendered unfit to undergo an examination because of excessive use of sedatives, stimulants, or tranquilizers.”). The polygraph examinations in this case could not have been intended to measure truth. In both DoD guidelines, and those of other agencies, it is clear that these examinations are not to be used for interrogation purposes or ploys, including the use of lies as to the result of the tests. CF Id. at 3-3 (“The polygraph instrument shall not be utilized as a psychological prop in conducting interrogations.”) with 10 CFR 709.25 (2001) (“DOE . .. may not “[u]se a polygraph examination that reflects ‘deception indicated’ or ‘no opinion’ as a substitute for any other required investigation.”). Over the course of 29 days of interrogation, false statements by NCIS agents, threats to family members, and fantasy reconstruction, these agents were able to produce predictable examinations showing elevation on espionage questions. The repeated reference to these later polygraph examinations is astonishing given the unprofessional and abusive conditions in which they were administered.
F. “The interviews were reasonable, relaxed, and many were at the request of CTR1 King.”
This is also from the public statement of the Navy. This statement is knowingly false. The audio tapes in this case show King weeping and sobbing. During 19-hour interrogations, King asked to go to sleep but is told to continue. At times, King is shouting “I don’t know what I’m supposed to give you” over and over at the agents as they press him for a signed confession. Moreover, it is noteworthy that King seeks the assistance of a psychologist for hypnosis on the videotaped interview with NCIS psychologist Dr. Michael Gelles. After his return to the United States, King was clearly trying to find a way to distinguish fantasy from reality. He told Gelles that he had no memory of the espionage facts but says that the polygraph examinations prove that he must have done something – a clear misconception that neither Gelles nor the agents correct.40 King asked for hypnosis and truth serum to determine if this is merely a dream. Gelles told him that he might give King hypnosis if King goes back and gives the agents “corroborating” evidence. Gelles told King that he could trust the agents and says that the agents are clearly his friends, he had a “special relationship” with the agents and the agents “will be with you forever.” Gelles virtually ignored the statement of King that he had suicidal thoughts when he left Guam – two days before the interview. Instead, Gelles told King to give corroborating evidence as a precondition for the hypnosis that King sought to clear his doubts as to any espionage.41 These tapes show a sailor who is struggling with his total inability to remember any act of espionage while clearly accepting the false representation that, if a polygraph examination shows deception, he must have committed such an act. It is difficult to watch and listen to these tapes because they show a total disregard by the NCIS for any effort at determining the truth of these allegations as opposed to making a case at any costs.
40 Gelles conducts the interview with King with Agents Wilson and Helen present. The interview is videotaped without consent of King. Gelles never reads King his rights to alert him of the videotape or that statement could be used against him, as is required by the Supreme Court. See, e.g., Estelle v. Smith, 451 U.S. 454 (1981); Brown v. Butler, 876 F.2d 427 (5th Cir. 1989). Instead, Gelles refers to himself as “the doc” and “not an agent.”
41 As noted earlier, Dr. Gelles has been notified that charges will be brought against him on the basis of this videotape with the American Psychological Association.
G. “CTR1 King never told NCIS he wanted a lawyer, and he never asked for a lawyer.”
This is also part of the official statement released by the Navy and the NCIS. It is knowingly and demonstrably false. Petty Officer King asked for an attorney on October 5, 1999 in an interrogation by NCIS agents, including Stuart Wilson and Robert Hyter. Documents in the case establish at least two additional invocations of his right to counsel. On October 8, 1999, King signs a waiver of his right to remain silent but specifically invokes his right to counsel. King initials his statement that “I do wish to have my lawyer present during the polygraph examination.” In a later waiver form, King again clearly asks for an attorney and again signed a statement (and initials an invocation), stating “I do desire to have my lawyer present during the polygraph examination.” No lawyer was ever produced by the NCIS which continued to do polygraph examinations with long interrogations before and after the tests. Under Edwards v. Arizona, 451 U.S. 477 (1981), an attorney should have been supplied to King and interrogations suspended immediately when he asked for a lawyer on October 5, 1999. The forms on October 8, 1999 show King continuing to ask for an attorney, which was denied by the NCIS. The record shows that the Navy and NCIS simply denied this request and then lied to the public. Unfortunately, such “intentional ignor[ing]” of invocation is not uncommon, see e.g., Soffar v. Johnson, 237 F.3d 411, 457 (5th Cir. 2000), but the subsequent false public statements are shocking.
After the Navy and the NCIS issued these false statements, the defense released the documents showing invocations of counsel. The response of the Navy was that these were merely “typographical errors” despite the fact that King both signed the form and initialed the specific language added on the invocation. Nevertheless, the Navy has also insisted that all of the other forms signed by King during the 29 days of interrogation as accurate and sufficient to maintain a capital espionage case. In defense of its conduct in the case, the Navy has repeatedly emphasized that “King reviewed each statement, made the changes that he wanted to make, and signed each statement . . . . He swore to the voluntariness and truthfulness of each statement.” Vernon Loeb & Walter Pincus, Pentagon Probes Spy Case Navy Dropped Against Sailor, The Washington Post, March 29, 2001 (statement of LCDR Cate Mueller, spokesperson for the United States Navy). This statement is also part of the formal statement release by the Navy and the NCIS. Yet, when confronted with two contradictions on invocation, the Navy now insists that only those statements upon which it wishes to rely are accurate. Where statements contradict the Navy, they are to be dismissed as in error. Obviously, the Constitution takes a more reasoned approach. When an individual signs a written invocation of counsel, it is treated as an invocation not a typographical error. Otherwise, every invocation could be dismissed on such a ridiculous basis.
H. “The Naval Criminal Investigative Service did not have further contact with CTR1 King after he was ordered into pretrial confinement on October 28, 1999.”
This was also part of the public statement of the Navy and the NCIS. This statement was part of the argument that Petty Officer King was not in custody until he was placed in the brig. No one but the NCIS and CDR Jowers has accepted this argument. King was under 24-hour guard and moved from safe house to safe house in Guam. He was told that he would be shot if he attempted to escape. He was required to shower and go to the bathroom in the view of agents. However, putting aside the obvious elements of custody, neither the Navy nor the NCIS has ever revealed that military courts rejected this argument. The Navy-Marine Court of Criminal Appeals twice stated that Petty Officer King was in custody starting October 2, 1999, when he was placed in the first safe house. The Navy did not contest this finding in an appeal to the Court of Appeals for the Armed Forces. Yet, after appellate courts have already decided this issue, the Navy and the NCIS continue to release false information to attempt to mitigate their misconduct in the case.
What is equally disturbing is that even the affirmative statement regarding the cessation of NCIS interrogations or further contact is false. The defense has sign-in sheets from the Quantico brig showing that, after King was placed in the brig, interrogations continued. The log shows NCIS agent Kenny Rogers signing in for an interrogation of King on October 31, 1999, three days after he was placed in the brig. This interrogation was particularly outrageous because it was conducted by the prosecutors without defense counsel, with the assistance of the NCIS. Mr. Rogers accompanied CDR Jowers and LT Seafer and assisted them in an interrogation of Petty Officer King without counsel in violation of a host of fundamental constitutional and statutory rights. Mr. Rogers admitted in deposition that he participated in this interrogation in the brig and at times was alone with King during questioning.
I. The evidence in the case was strong and the case was dismissed due to blundering and inexperience of the prosecution.
The description of the evidence in this case as “strong” is directly refuted by the military judge who reviewed the evidence and found that it did not even meet the standard of probable cause to bring a formal charge. Judge Winthrop stated that “I don’t believe the government evidence on any of the charges in this case is strong. On the other hand, the defense evidence in extenuation and mitigation is significant.” The only evidence in the case was a statement that was inadmissible, contradicted at the time by Petty Officer King, and found by Judge Winthrop to be uncorroborated and probably coerced. The Navy confirmed in the proceedings (and in writing to me on March 8, 2001) that it had turned over any and all possible corroborating evidence in the case.
The portrayal of the prosecution as inexperienced and outmatched belies the record. A week after Chairman Shelby criticized the investigation and prosecution for blunders, the Navy held a public awards ceremony for CDR Jowers on Friday, March 30, 2001. At the ceremony, CAPT James McPherson stated that “CDR Jowers is one of the preeminent practitioners of military justice in the JAG Corps.” The award reads in part:
The President of the United States takes pleasure in presenting the MERITORIOUS SERVICE MEDAL (Gold Star in lieu of the Third Award) . . .
For outstanding meritorious service as Office in Charge, Trial Service Office . . .High-visibility, highly sensitive and complex cases, many involving direct congressional and flag-level interest, were the norm for Commander Jowers and her superb staff. . . . Commander Jower’s [sic] exceptional professionalism, personal initiative, and total dedication to duty reflected great credit upon her and were in keeping with the highest traditions of the United States Naval Service.
This award was signed by Admiral V. E. Clark, Chief of Naval Operations and must have been submitted during the pendency of the case. See also Al Kamen, Mixed Messages, The Washington Post, April 2, 2001, at A17 (discussing the conflict between Senator Shelby’s comments and the Navy award). Moreover, when this case was first assigned to defense counsel, the Navy selected two young lieutenants fresh from law school to handle a death penalty espionage case. With only months of experience, LT Bailey and LT Freedus were put up against one of the most experienced prosecutors in the Navy with over 150 trials to her credit. I was asked into the case shortly after their appointment and I agreed to serve as lead counsel. In the first oral argument before the Court of Appeals for the Armed Forces, the selection of inexperienced defense counsel to oppose a seasoned prosecutor was repeatedly criticized by the judges.
What is ironic is the suggestion that the Justice Department might have prevailed in this case given the common comparison of this case to the botched Wen Ho Lee case – a Justice Department prosecution. See, e.g., David Rovella, Spy Case is Sunk: The Navy had its own Wen Ho Lee locked up for 500 days, The National Law Journal, March 26, 2001, at A22; Jim Oliphant, How Not to Prosecute a Spy, Part 2, The Legal Times, December 11, 2000, at 3; David Rovella, The Next Wen Ho Lee, The National Law Journal, October 30, 2000, at A4. What is disturbing about any suggestion that the Justice Department might have produced a different result is that the fact that the military judge recommended dismissal on the basis of a lack of evidence. Judge Winthrop stated that the evidence in the case was so weak that it fell short of even a minimal probable cause level needed to bring a charge. The suggestion that the Justice Department might have secured a conviction on evidence less than probable cause is a frightening indictment of our system of justice. Obviously, there was glaring prosecutorial misconduct and negligence in this case. However, no prosecutor can create evidence where no evidence exists. Ultimately, this case failed because of the paucity of the evidence and not any inadequacy of the prosecution. Moreover, most of the errors committed by the prosecution in this case had little to due to any specialized national security procedures or rules but rather basic litigation issues like failure to properly prepare witnesses, opening the door on direct examination, and maintaining control over the schedule and material in the case. In the end, however, the military judge was left with nothing more than an unreliable, inadmissible statement and no corroborating evidence to support a charge of espionage.
J. The investigation was bungled in this case and, had the FBI been given the case, the result would have been very different.
Chairman Shelby has publicly criticized both the NCIS investigation and the JAG prosecution in this case as bungled and botched. I certainly do not disagree with that obvious assessment. As with the issue of prosecutorial negligence, however, it is important not to assume that more evidence of espionage would have been discovered by a competent investigative body. The NCIS conducted hundreds of interviews and sought corroboration in every possible form. They failed to find any corroboration because a disk was never sent to the embassy. The blunder of the NCIS was in the very outset of the case when it allowed a polygraph glitch to mutate into a full-fledge espionage investigation. After per se abusive interrogation techniques used over 29 days, the NCIS repeatedly found that statements coerced from this sailor were either untrue and unfounded. Rather than consider their own interrogation abuses as the most likely cause for the sharp disconnect, the agents simply pushed harder for more statements and the ever-illusive corroboration. Once the NCIS found that past statements were untrue or unfounded, they should have considered the possibility that their techniques had produced a hopelessly confused and unreliable suspect. This is a predictable result of having someone repeatedly writing and talking about fantasies and dreams for 29 days for interrogation session lasting 19 or 20 hours. NCIS agents further eradicated the line between fantasy and reality by repeatedly lying to King about his test results and convincing him that if a polygraph shows deception there must be truth to these fantasies. In the end, it was essential to prove that they had uncovered a spy rather than simply had broken a sailor.
There is no basis to believe that a competent investigative agency would have uncovered corroborating evidence in this case. It is enormously unfair to Petty Officer King and his family to allude to unknown evidence in some unexplored corner that would have proven guilty. Such suggestions could be made in any case where the government failed to prove guilt. It constitutes guilt by insinuation and undermines the very foundation for the rule of law. The NCIS spent copious amounts of time and money to defend its decision in this case and find evidence of espionage. No such credible evidence was found because none existed.
K. There was corroborating evidence in this case espionage.
As noted earlier, there was a torrent of leaks and false statements given to the media in this case. Named and unnamed officials set out to prejudice this case in the media from the outset with disclosures that clearly violate federal law and military regulations. See, e.g., Neal Thompson & Tom Bowman, Ex-NSA Expert Charged as Russian Spy; Navy Petty Officer Said to Admit to Passing Secrets, Baltimore Sun, Dec. 1, 1999, at 3A (detailing information from “a senior Pentagon official” and “another Pentagon official” about King’s family difficulties, promotion problems, polygraph results, theory of the case, statements made in interrogations, King’s bank records, alleged disk transfer, and CTR1 King’s work for “the Naval Security Group at NSA’s headquarters in Fort Meade”); Bell Gertz, Navy Petty Officer Charged With Passing Secrets to Russia, Wash. Times, Nov. 30, 1999, at A3 (quoting “officials” in detailing CTR1 King’s work for “the Naval Security Group at Fort Meade, Maryland” with submarine surveillance; failed polygraphs, and statements made by the accused). All these facts were attributed to specific spokespersons or confidential sources “close to the investigation.” As noted earlier, in March, I was asked to respond to a statement made by CDR Newcomb. With the case still pending, CDR Newcomb told CBS Sixty Minutes that there was actually an abundance of corroborating evidence of espionage in the case. I immediately wrote to CDR Newcomb on March 8, 2001 and demanded an explanation. Since no such evidence had been presented in the proceedings, the statement was either false or the government was again withholding evidence. CDR Newcomb wrote back to state that all possible corroborating evidence had been disclosed to the defense and the military judge. No corroborating evidence was being withheld. CDR Jowers also confirmed that any and all corroborating evidence had been disclosed. The only piece of evidence that the Navy could even offer as corroborating was a log that would be rejected in any court as corroborating evidence in this case. Yet, Judge Winthrop was extremely critical of the absence of corroborating evidence in the case and stated that such evidence did not seem to even meet the standard of “slight” evidence of corroboration. Judge Winthrop stated that, even if Petty Officer King’s statement was found to be voluntary, “I question whether the mere existence of the daily, log provides independent evidence of an ‘essential fact’ of the confession, i.e., the act of espionage.” In fact, the classified evidence in this case contains a great deal of exculpatory evidence including the audio tapes and investigative reports that find no evidence that Petty Officer King’s account actually occurred.
CDR Newcomb’s comments to the media were simply false and designed to create the false impression of supporting evidence. As one of the individuals most responsible for this debacle, CDR Newcomb had a personal interest to suggest that there was an evidentiary basis for bringing and maintaining this case. He simply ignored the personal and reputational damage that such false statements caused Petty Officer King and his family.
L. Petty Officer King is a “self-confessed traitor.”
Perhaps the most shocking act of retaliation by the Navy occurred in the aftermath of the dismissal. In a public statement issued on behalf of the Navy, CDR Roxy Merritt called Petty Officer King “a self-confessed traitor.” This personal attack occurred when there was no pending action against this sailor and after a military judge stated that the signed statement in the case was unreliable, contradicted, and possibly coerced. Yet, this high-ranking officer used this statement to personally attack an active duty enlisted man. This type of attack is reminiscent of authoritarian nations that do not respect the rule of law and seek to destroy individuals through propagandistic slurs and false statements. It is simply breathtaking to see the Navy strike out at a sailor after it failed to prove its case, including the truth and validity of the statement. Despite a letter calling for a retraction of this statement, the Navy has refused.
M. The dismissal of this case had nothing to do with the recommendation of the military judge.
Within one hour of the release of Judge Winthrop’s recommendation of dismissal for lack of evidence, reporters were told that the case would likely be dismissed in light of the recommendation. Within hours of the recommendation, the case was dismissed. The Navy, however, had already begun to spin an alternative explanation to re-direct attention away from the decision of Judge Winthrop. The Navy insisted that the recommendation only hours before had nothing to do with its decision. Rather, the Navy insisted that it dismissed the case out of concern of the compromise of national security secrets in any trial. See, e.g., David Brown, 520 Days in Jail: No Charges Were Ever Specified; Could This Sailor’s Ordeal Happen to You?, The Navy Times, March 26, 2001, at A1.
Most journalists treated this spin as laughable and reported the dismissal as the result of the judge’s decision. Yet, it is astonishing how easy it is for the Navy to adopt a clearly false position in the media. Only the day before the dismissal, I received letters from the Navy concerning future proceedings and laying foundation for future government arguments in the case. The Navy scheduled witnesses for the following Monday. Moreover, the Navy (like the Justice Department) is not required to present any classified evidence in open court. Rather, the Navy had already presented all of the evidence in classified proceedings. All of the examinations and cross-examinations had occurred in a SCIF. The submission of such classified information is routine in espionage cases, including the on-going prosecution of Mr. Hanssen. Ironically, this is the same spin used by the Justice Department after its defeat in the Wen Ho Lee case. As a citizen, however, it is disconcerting to see the government so easily adopt knowingly false statements to the public to protect the reputation of federal officials. No one seriously believes the Navy’s justification but it is all the more troubling that no one expects anything better from the government in such a case.
My co-counsel and I have attempted to compile and present the extensive record of this case over the weekend in the hope that Congress will take action in this matter. Quite frankly, while we stand ready to cooperate with any investigation of the DoD Inspector General’s office, we believe that an inquiry into this case should be conducted by Congress. Additionally, given the numerous alleged violations of federal law, a referral should be made to the Justice Department. It is clear from the public statements of the Navy and the NCIS that there is no hope of good-faith internal investigations. In the case of the Navy, it has already claimed that no violations occurred in this case without even consulting with the defense or seeking the transcript in the case. As for the NCIS, the director of the NCIS has already publicly cleared his own staff and appears unconcerned by signed invocations of counsel and allegations of abuse. Mr. Brant has indicated that he believes that these agents acted entirely appropriately despite the chorus of criticism from outside the NCIS. Given Mr. Brant’s public position, these types of practices are likely to continue in future cases. Finally, the Director of Naval Intelligence failed to take any action to halt months of violations. Senior officials in the defense liaison division are involved in these violations and continue to perform their duties. The failure of Admiral Ellis to take any action is perplexing and alarming given the admitted violations of some of his staff. It appears clear that the interests of national security were knowingly supplanted by personal and professional interests in this case. Some witnesses in this case were formally given notice by the Navy that they were at risk of self-incrimination and should consider retaining counsel. Yet, the fact that this transcript is classified and these proceedings took place in SCIFs has created a useful screen for this misconduct.
There has been a concerted effort to avoid reviewing the transcript in this case as to the alleged violations or to allow the defense to submit a detailed classified report on our personal knowledge of national security violations. Numerous Navy and NCIS officials stand at risk from any substantive inquiry into the facts of this case. I must confess that I have little faith that a true and fair review will occur of the facts of this case. Absent congressional investigation, these violations will be buried to the collective relief of the DNI, NCIS, and Navy leadership. All interests will then be served except for the public interest. For myself and my co-counsel, I can only promise that, given the opportunity, we can support each of these allegations. Please give us that opportunity. Of course, no investigation will ever make our client whole for what the Navy did to him and his family. In addition to other financial, professional, and personal losses, Petty Officer King experienced a terrible loss while he was held unlawfully by the Navy — his mother died in Ohio. Her last words were about her son and her uncertainty over whether he might be convicted and executed. She never doubted his innocence but went to her grave not knowing the fate of her son. As the person who had the duty to inform Petty Officer King of his mother’s death, I can say that no lawyer and no congressional committee can lift that burden from his shoulders. Petty Officer King, however, is committed to clearing his family’s name and honor. He also wants to guarantee that no other sailor or soldier is subjected to this Kafkaesque process. We are also committed to those objectives.
The focus of this statement has been the stated subjects given to the defense by the Committee in our formal invitation to appear. However, the various national security violations and Navy blunders should not distract the Committee from the enormity of the Navy’s misconduct in holding a sailor for 29 days of interrogation and 520 days without a charge. Not only did this incarceration violate our constitution, it violated international norms of justice. In any other country, we would not hesitate to dismiss such medieval conduct as the trappings of some authoritarian power or petty despot. Thus, we can express outrage about China holding individuals for 26 days without a charge while studiously avoiding our 520-day incarceration of an American sailor. Such sharp conflicts in our public position and our actual conduct make our international pleas look like mere propaganda and our constitutional principles look like mere pretenses. The NCIS and the Navy in this case acted in the name of the American people in denying core constitutional rights to this sailor. Unfortunately, some of the greatest abuses are committed in the name of the loftiest objectives. This danger in a democratic system was best articulated by the great American jurist, Justice Louis Brandeis:
Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.42
42 Olmstead v. United States, 277 U.S. 438, 479 (1928).
I would be happy to answer any questions that the Committee may have on my testimony.
Appendix A: Memorandum from CDR James P. Winthrop, Investigating Officer, Recommending Dismissal of US v. Daniel M. King, 9 March 2001.
Appendix B: Letters to DCI George Tenet from Attorney Jonathan Turley re: U.S. v. King, March 6, 2001 and March 8, 2001.
September 21, 2000
By Facsimile Transmission and Overnight Mail
CDR Mark Newcomb, JAGC, USN
Force Judge Advocate
United States Atlantic Fleet
1279 Franklin Street
Norfolk, VA 23511-2494
Re: United States v. CTR1 Daniel M. King, USN
Dear Commander Newcomb:
I am writing in response to your recent correspondence denying that the defense has ever demanded a mandatory declassification of information in this case.
Unfortunately, given the course of conduct in this case, your letter should not come as much of a surprise. Yet, I must confess that your denial that you were ever asked for a declassification review of material has left military defense counsel and civilian counsel in total disbelief. From the beginning of this case, the defense has repeatedly demanded the declassification of material. As you noted, you were formally asked on January 4, 2000 for complete declassification of material in the case. The requested continuance of defense counsel was based on prior requests for such declassification. It was in fact the only subject of our first telephone conference on December 29, 1999. It was also the primary subject of our second meeting on February 23, 2000. The thrust of these meetings was that the Navy had no authority to keep all of the information in the case classified and that the continued classification of the material constituted clear abuse of military regulations and federal law. You have repeatedly assured the defense that a declassification review was underway. This issue was repeatedly cited before the Court of Appeals for the Armed Forces (CAAF) and this point was conceded in the Navy filings.
On August 23, 2000, I sent a letter specifically referring to the failure of the Navy to complete the requested review. This letter made specific reference to your past statements and our demand for declassification:
“I must again ask you to disclose the steps taken to declassify information in this case and the names of the individuals who performed this task. My review of classified files has been nothing short of shocking that the Navy has maintained that these documents could not be unclassified or produced in minimally redacted form. The defense has been repeatedly delayed in our effort to secure a trial for our client by the insistence of the Navy that declassification of documents required additional time and effort. . . . it is clear that no meaningful effort was made to declassify these documents and that the past representations to the defense are facially absurd. Given the delays caused by this process, the defense is entitled to question those individuals responsible for past declassification decisions.”
How you can now seriously deny such repeated past requests is beyond my imagination or experience. You have been repeatedly asked to comply with the governing military regulations and federal law in the declassification of material. As previously noted by the defense, this review is mandated under OPNAVINST 5510.1H. This obligation has not changed under OPNAVINST 5510.36 cited in your letter. You have actively participated in both meetings and correspondence on this question. Your failure to comply with these regulations is consistent with the failure to comply with other basic requirements in this case, which played no small part in the stay imposed by CAAF in this case. However, your denial raises serious ethical questions of unethical and vexatious conduct on your part.
The defense has a long-standing demand for declassification of material under the governing military regulations, including OPNAVINST 5510.36. Your invitation to repeat these formal demands is a grossly improper tactic to excuse your failure to comply with these regulations. I am not competent to raise issues of the conduct of military officers. I can, however, object to possible unethical conduct as a lawyer. I demand that you immediately withdraw your denial of our past communications and correct the record as to prior requests for declassification.
Defense Counsel for Petty Officer Daniel M. King
September 29, 2000
By Facsimile Transmission and Overnight Mail
CDR Mark Newcomb, JAGC, USN
Force Judge Advocate
United States Atlantic Fleet
1279 Franklin Street
Norfolk, VA 23511-2494
Re: United States v. CTR1 Daniel M. King, USN
Dear Commander Newcomb:
I am in receipt of your September 25, 2000 letter. I am personally disappointed by your refusal to withdraw your prior statements. The denial of a fact clearly established in both prior correspondence and conferences is an ill-considered choice for any attorney. Under the ethical rules, you have a “safe harbor” period in which to make such a correction and I certainly encourage you to re-consider your position.
Prior Requests and Objections Regarding Declassification
There is no question that the defense has repeatedly asked for all of the material in this case to be declassified. Given your denial, I would like to supply a more detailed history of these requests.
1. On December 29, 1999, our first telephone conference addressed two primary issues. First, I insisted that there was no reason why the evidence related to these charges remained classified and stated that the Navy should agree to such unclassified presentation of evidence. Second, you noted that you did not believe that I would be able to secure a clearance in this case due to conversations that you had had with unnamed governmental officials.
2. On December 29, 1999, LT Bailey and LT Freedus sent a written letter to the Staff Judge Advocate concerning the continuance of the Article 32 hearing. This letter also refers to prior communications over the classification of documents. The letter states that “the defense has never requested production of classified information and has been willing to accept redacted discovery from the inception of the case.”
3. On December 29, 1999, LT Bailey and LT Freedus received a letter from CDR Jowers expressly stating that requested material “has been classified SECRET/NOFORN; however, I have requested that the material be declassified.”
4. On January 4, 2000, LT Freedus sent a letter to the Staff Judge Advocate asking for a continuance “until such time as all the interested program managers review the classified material and release it in an unclassified manner.” In this letter, the defense expressly repeats the demand that “[all] information . . . be completely declassified.”
5. On January 6, 2000, LT Bailey and LT Freedus request declassification of all material in the case in a telephone conference with the Staff Judge Advocate.
6. On January 31, 2000, the Staff Judge Advocate told detailed defense counsel that he would try to have material declassified by two weeks before the February 28, 2000 hearing date.
7. On February 14, 2000, detailed defense counsel requested a status update from the Staff Judge Advocate on the progress of the promised declassification.
8. On February 22, 2000, the failure to produce the promised declassified evidence prompted another letter and another demand for declassification in a letter from LT Bailey and LT Freedus to the Staff Judge Advocate, a letter memorializing prior conversations on the subject of the defense request for declassification:
CDR Newcomb indicated he would try to have an unclassified version of the relevant evidence available for review by CTR1 King’s civilian counsel by 14 Feb 00. In an e-mail sent 14 February 2000, LT Bailey requested an update on this process. On the afternoon of 16 Feb 00, CDR Jowers informed the defense that she should have three statements in an unclassified form by the Article 32 hearing on 28 February 2000. Unfortunately, Mr. Turley has not yet had an opportunity to view these statements and detailed counsel has not been able to discuss the contents as the documents are still classified as secret. Even if the government is only able to provide unclassified versions of three documents, the defense team will need time to review, plan and discuss the material contained therein.
9. On February 23, 2000, the Staff Judge Advocate met again with the defense at a Starbucks coffee shop to discuss the case. At that time, defense counsel stated that there was no reason for the evidence in this case to remain classified and that standard unclassified information remained in the secret binders in violation of the Navy’s obligations.
10. On March 10, 2000, Defense filed extraordinary writ to Navy-Marine Corps Court of Criminal Appeals regarding the monitoring issue.
[T]he convening authority and prosecution maintained facially abusive classification levels on virtually all material and documents in the case. This includes the refusal to provide redacted copies of facially unclassified documents or retaining a “For Official Use” classification to exercise control of unclassified material.
11. On March 13, 2000, defense counsel filed papers before the Court of Appeals for the Armed Forces (CAAF) alleging unlawful command influence, naming the Convening Authority and Staff Judge Advocate, including the allegation of “abusive use of classification procedures.” This filing further alleges that King has been subject to “facially abusive classification decisions. For example, some material in this case has been reduced to the level of ‘For Official Use Only’, a non-classified status….Basic documents that should be easily redacted have been withheld at the secret classification level….The use of classification and administrative rules in this manner serves no purpose but to harass the defense and prevent any public release of information contradicting past public statements.”
12. On March 24, 2000, CDR Jowers signed an affidavit for filing with CAAF stating:
At the request of the Defense, LT Seafer and I considered presenting the Government’s case in an unclassified manner. Doing so would require further redaction of the statement involved. . . . We requested that statements be reviewed and sought advice as to whether the statements could be sufficiently redacted such that they would not require classification. . . .The defense has also requested that I provide them with an unclassified version of the materials I have provided them thus far, which have been classified either SECRET or TS/SCI. I requested the programs concerned to review the material for the purpose of redaction.
13. On March 24, 2000, CDR Newcomb signed an affidavit for filing with CAAF stating:
Although I was skeptical that an unclassified proceeding was possible, I explained that the government would continue to act on the defense request to redact all classified evidence relating to the charges – particularly Petty Officer King’s statements – to create an unclassified version of the evidence, and emphasized that any stipulations would have to originate with the defense team.” During [a conversation with LT Bailey on January 6, 2000], I explained that while the material was unlikely to be completely redacted into a de-classified format, the government would work to redact as much of the evidence as possible. I also stated that I would attempt to have the unclassified version of the evidence available to the defense no later than 14 February.”
14. On April 19, 2000, defense files additional papers with CAAF stating:
From the outset of the case, [King] has been subject to . . . facially abusive claims of classification of core unclassified documents under a “mosaic theory.” The filing further noted that “Defense Counsel has asserted that facially unclassified material has been withheld by the Navy while the Navy has widely disclosed the same information to the media and the public. . . . Appellant has cited numerous examples of detailed information, claimed to be classified and withheld from defense counsel by the Navy, that has been widely disclosed by Navy officials to the media and the public.”
15. On April 24, 2000, an affidavit is filed from LT Bailey as part of Appellant’s Answer to CAAF’s Show Cause Order. This affidavit states “I asked CDR Jowers whether the program managers had been able to cleanse the information down to an unclassified level, as promised.”
16. On May 4, 2000, Professor Turley repeats allegations of abusive use of classification rules in oral argument before CAAF.
17. On August 7, 2000, Professor Turley sent a letter to the Staff Judge Advocate stating:
Throughout this case, I have been told that none of the documents currently classified could be supplied in redacted form. When I told you that such redactions are common in national security cases and that this claim was highly dubious, you told me that I simply did not have access to the material or the necessary knowledge of its content. I have now reviewed some of this material. It is abundantly obvious that no serious effort at redaction was made. The suggestion that none of this material can be supplied in redacted form is frankly laughable. I would like to know who made the determination that this material could not be redacted.
18. On August 23, 2000, Professor Turley sent a letter to the Staff Judge Advocate specifically referring to CDR Newcomb’s past statements and our demand for declassification:
I must again ask you to disclose the steps taken to declassify information in this case and the names of the individuals who performed this task. My review of classified files has been nothing short of shocking that the Navy has maintained that these documents could not be unclassified or produced in minimally redacted form. The defense has been repeatedly delayed in our effort to secure a trial for our client by the insistence of the Navy that declassification of documents required additional time and effort. . . it is clear that no meaningful effort was made to declassify these documents and that the past representations to the defense are facially absurd. Given the delays caused by this process, the defense is entitled to question those individuals responsible for past declassification decisions.
19. On September 1, 2000, the Staff Judge Advocate responds to defense counsel that he is “continuing to collect information regarding the declassification process for evidence in this case and provide it to you as soon as it is available.”
20. On September 20, 2000, Professor Turley again writes to the Staff Judge Advocate on the failure to declassify material in the case:
[T]he defense has repeatedly demanded that material be declassified in this case and that the Navy give the names of individuals responsible for prior declassification reviews as well as the steps taken to respond to prior declassification requests. The defense first asked for declassification of this material at the outset of the case. I objected to the classification of information in the case in our first meeting. Under OPNAVINST 5510.1H, you were required to respond to this request within 30 days and supply this information. Now, we are again facing an Article 32 hearing with material that is facially unclassified and no response from the Navy. The only conclusion that defense counsel can reach is that the Navy is using the classification of this material for purely tactical and dilatory purposes.
21. On September 20, 2000, Professor Turley again writes to the Staff Judge Advocate in a letter concerning the scheduling of an Article 32 hearing, stating that “I will again note that the Navy has not met its obligations under OPNAVINST 5510.1H to declassify information in this case or supply information as to the refusal to declassify the information.”
22. The Staff Judge Advocate claims that declassification was never requested by defense counsel.
The Staff Judge Advocate has Failed to Offer a Valid Explanation as to his Failure to Act on this Matter.
You have acknowledged in your last letter that in fact the issue of classification was discussed with counsel. You, however, insisted that a “formal” request for declassification was never made. As noted below, the suggested failure to properly ask for declassification is without support. However, even if your position were correct, you would still be guilty of flagrant dilatory conduct under the ethics rules. The defense has repeatedly asked for declassification but, under the best light, you have waited for these requests to be put into particular form. You have a duty to make evidence available and not engage in such vexatious conduct. Not only is this obligation found in the rules governing military prosecutions but it is further established in SECNAVINST 5510.36, which prohibits the classification of information “to prevent or delay the release of information that does not require protection in the interest of national security.” You have allowed facially unclassified material to remain in the binders classified as secret, despite numerous defense objections, in clear violation of your obligations under SECNAVINST 5510.36.
The correspondence cited above establishes that you repeatedly discussed the requested declassification of this material and defense challenges to the classification assertions of the government. I question whether any lawyer would agree that the failure to act on such requests can be ethically or legally justified on this stated basis.
Moreover, you repeatedly stress a distinction between redaction and requested declassification. This distinction is irrelevant to the immediate issue for a number of reasons. First, there is no separate “redaction provision” in either the military or civilian rules. Rather, redaction is part of a declassification process. It is standard that classified documents will be initially produced in unclassified redacted form as part of a declassification review. Such a review necessarily identifies portions of documents that are unclassified and can be produced. These documents are then produced in redacted unclassified form pending further declassification. In fact, it is the redacted versions that are often used to show arbitrary classification as to remaining information. Your suggestions that a request for redacted material is somehow manifestly distinguishable from a classification challenge or declassification review is meritless.
Second, as demonstrated by the correspondence above, the defense in fact requested both redaction and declassification. As is routine in these cases, the defense challenged the classification assertions in this case by demanding redactions and demanding a review of the material for declassification.
Third, and finally, the defense repeatedly stated that only the content of the allegedly transferred document and related program information should be redacted or classified. From the outset, the defense objected that all other material cannot be properly withheld as classified or used as the basis for a classified trial.
The Defense Fulfilled its Obligations in Challenging the Classification Status and Asking for a Mandatory Declassification Review.
Your letters appear to confuse two relevant sections on the classification of material and further add requirements not contained in either section. The defense has been referring to your obligation to respond to the defense request within the 30 days established under OPNAVINST 5510.1H and its successor, SECNAVINST5510.36. This time period is set out under the provision for “Classification Challenges.” Under this provision, the defense was only required to “contact” the Staff Judge Advocate once it had “reason . . . to believe information is improperly classified.” It need only identify such information. In this case, the defense repeatedly challenged such material and identified all of the material in the secret binders as the subject of those challenges. This provision does not require any formal language nor does it require that the challenge be made in writing. Nevertheless, the defense did put these requests into writing and clearly challenged the classification of the material and clearly asked for declassification review.
Your September 25, 2000 letter clearly referred to a different provision, concerning the “mandatory declassification review.” The time period for this review, referred to in your letter, is 45 days. Once again, there is no formal language required by the provision in requesting declassification review. Rather, under this provision, the defense was required only “describe the information with sufficient specificity to enable its location with a reasonable amount of effort.” The defense demanded the declassification of material contained in identified binders. There is no other formal requirement as to language or any requirement that this request be made in writing. Nevertheless, the defense repeatedly asked for the review of classified information for declassification in this case.
The defense clearly satisfied both of these provisions and the Navy clearly failed to fulfill its obligations within the respective 30 day and 45 day periods. After an entire year, it is clear that no credible effort was ever made to review this material despite defense requests. Nevertheless, your letter maintains that the Navy has already repeatedly looked at this material and found no material can be produced even in redacted unclassified form. This statement only demonstrates the manifest bad faith of the Navy since the file includes items such as a commercially available birthday card with the words “Love Daddy” as the only writing added by the accused. Other items ranging from standard bank forms and auto rental slips also remain restricted in the secret binders. There could be no clearer case of the use of classified status to delay the release of unclassified material.
The Demand for a New Defense Request.
Your demand for a new defense request for declassification review appears simply motivated by a desire to support your claims in this matter. It is obvious from the past letters that we have both challenged classification and asked for a mandatory declassification review. I will simply repeat the same demand made in December. We challenge the classification of all material in the case and we ask that all of that material be declassified.
In conclusion, I will remind you that this case involves a relatively small amount of material that has existed in these files for almost a year without any serious effort of declassification or release by the government. The failure to this act makes a mockery of the suggestion that the Convening Authority is acting in good faith and protecting the rights of the accused. This case has become an embarrassment of demonstrated bias and unlawful command influence in the pursuit of a conviction by the Navy. Ironically, with every failure, the Navy’s own conduct makes any hope for a trial, let alone a conviction, an increasingly remote and unlikely prospect.
I object to any attempt to hold an Article 32 hearing without the completion of the review required by the defense’s classification challenge and the mandatory declassification review in this case. Your failure to act in almost a year to review this material is hardly the fault of the defense and should be corrected as a prerequisite for the calling of any witness or the presentation of any evidence in this matter. It is my desire to move beyond a question of dilatory or unethical conduct in this matter and to address the implications of the Navy’s failure to act for the purposes of the Article 32 investigation. However, in light of the documented requests cited above, your denial of any prior defense challenge of classification or request for declassification should be withdrawn immediately as facially untrue.
Defense Counsel for Petty Officer Daniel M. King