PREPARED STATEMENT OF
JONATHAN TURLEY
LEAD DEFENSE COUNSEL
FOR 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
II. THE MISCONDUCT OF THE NAVAL CRIMINAL INVESTIGATIVE
SERVICE.
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.
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).
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..
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.
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.
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.
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 (smith.gregory@hq.navy.mil). 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.
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.
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.
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.
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.
V. CONCLUSION
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 B: Letters to DCI George Tenet from Attorney
Jonathan Turley re: U.S. v. King,
March 6,
2001 and
March 8,
2001.
Appendix C
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.
Sincerely,
Jonathan Turley
Defense Counsel for Petty Officer Daniel M. King
cc:
VADM Mobley
CDR Winthrop
LCDR Klant
LT Bailey
LT Freedus
CTR1 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.
Sincerely,
Jonathan Turley
Defense Counsel for Petty Officer Daniel M. King
cc:
VADM Mobley
CDR Winthrop
LCDR Klant
LT Bailey
LT Freedus
CTR1 King