By Facsimile Transmission and Overnight Mail
The Honorable George J. Tenet
The Director of Central Intelligence
Washington, D.C. 20505
Re: United States v.
CTRI Daniel M. King, USN
Dear Sir:
As lead defense counsel
in the above referenced case, I am again writing to you to ask for
your intervention to stop on-going and serious violations of
national security laws and regulations. Military co-counsel, LT
Robert Bailey and LT Matthew Freedus join me in this request for
intervention and investigation. In the fall of last year, I
repeatedly wrote to you and other intelligence officials concerning
these violations. Despite these letters and subsequent inquiries
from members of Congress, violations have continued unabated in the
case and witnesses have now given sworn testimony acknowledging such
violations under oath. Moreover, despite assurances to Congress that
inquiries have been made, critical witnesses have recently testified
that no such inquiry or investigation has occurred. The failure to
take even minimal steps to inquire into these violations is
alarming. Even more distressing is the failure of any intelligence
official to contact me or any member of the defense as to the
specific allegations and supporting details.
As before, I wish to
emphasize that this correspondence is not part of any litigation
tactic. To the contrary, the prosecution of Petty Officer Daniel
King is now virtually impossible given constitutional errors
committed by the Navy. In fact, the Navy recently admitted to the
media that it was moving to dismiss the charges against Petty
Officer King. Petty Officer King has now been confined for over 520
days without the benefit of a formal charge, let alone a trial. In
the pending speedy trial challenge before the United States Court of
Appeals for the Armed Forces (CAAF), the Navy has waived the right
to file a brief contesting our demand for a complete dismissal. As I
stated in my prior correspondence, I informed you that my concerns
stem from my obligations as a holder of a Top Secret/Sensitive
Compartmented Information (TS/SCI) clearance as well as a former
employee of the National Security Agency (NSA). As an academic and
practitioner in the national security field, I have never witnessed
nor heard of such flagrant disregard of national security rules and
regulations regarding the handling of classified information as
committed by the government in this case.
Given the gravity of
these violations, I ask for the opportunity to detail these
violations in a classified meeting or to prepare a classified report
of the violations. I must also repeat my earlier request that an
independent inquiry be made of these proceedings to establish the
scope of national security violations. I strongly encourage you to
act to contain any damage due to those violations, and to take
appropriate action with respect to the responsible individuals.
I. FAILURE TO
INVESTIGATE OR TO INQUIRE INTO THE ALLEGATIONS.
It is clear from the
record of these proceedings that 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. While the
defense has prevailed upon the Navy to tighten precautions in some
significant aspects, violations remain on-going and it appears that
there is a resistance to make changes out of a fear that such
corrective action might be viewed as a further admission of
misconduct or gross negligence.
I am particularly
concerned about the testimony of Ms. Karan Wright, who until
recently served as a security officer assigned to the proceedings.
Ms. Wright admitted under oath that she had violated national
security regulations in the proceedings and stated that other
officials had also committed such violations. Ms. Wright, however,
testified that no inquiry or investigation had been made of the
security violations or procedures in the proceedings. This testimony
was consistent with the knowledge of the defense. Despite an
extensive record of such violations, including the release of
program and classified material to unauthorized persons, there has
been little effort by the Navy nor by other relevant agencies to act
to avoid any further compromise of information. After defense
counsel raised serious allegations of national security violations,
no one has contacted the defense or sought further information from
the complaining party.
There appears a complete
lack of interest in these admitted violations of the handling and
disclosure of extremely sensitive information. For example, when the
defense wrote to the NSA concerning violations by 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 violations by LT Orr were minor compared to
those committed by other members of the prosecution and the program
offices as confirmed throughout these proceedings. The handling of
this matter shows the complete failure to respond to allegations of
national security violations in a responsible and appropriate
manner.
All of the defense
correspondence regarding these violations has been unclassified. The
defense anticipated that someone would arrange a classified meeting
or method to permit a detailed presentation of these violations. 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.
II. THE ON-GOING
VIOLATION OF NATIONAL SECURITY LAWS AND 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. A few examples from each of these areas merit mention.
A. Violations
Concerning the Physical Facility for the Discussion or Disclosure
of Classified Information.
1. The Navy continued
to use a SCIF at Quantico that the defense repeatedly objected to
as manifestly insufficient and uncertified to handle the program
information in this case. The Navy insisted on using the SCIF for
a year and a half until the defense was able to secure testimony
of one security official that the SCIF was not certified and not
appropriate for the discussion of her program.
2. The Navy allowed
unauthorized individuals to enter a SCIF where program information
was readily visible without any warning to the hearing
participants that an uncleared individual was entering the room.
3. The Navy only
recently began (in the last few weeks) to announce at the
beginning of each session the level of access needed to be present
-- after repeated disclosures to unauthorized persons of program
information.
4. The Navy
investigators played a tape containing program information to the
accused in a hotel on a hotel tape machine. This same tape was
played to other individuals without access in at least one earlier
meeting. When this tape was classified on the secret level, the
defense objected that the tape clearly contained program
information and that it had to be immediately reviewed and
secured. Navy prosecutor CDR L. Lynn Jowers repeatedly dismissed
the objections and stated that Ms. Wright had also reviewed the
tape for any program information. The need for corrective action
was raised repeatedly by the defense on no less than seven
different occasions. Finally, in the last twenty-four hours, the
government admitted on the record that the tape did contain
program information and that "serious" violations of national
security regulations had occurred.
5. The Navy repeatedly
asked the accused to discuss highly sensitive program information
with uncleared investigators in hotel rooms and unsecure
locations. The details of these interrogations, containing program
information, were typed up by these uncleared agents on uncleared
computers and handled by uncleared personnel.
6. Basic SCIF
practices were ignored, including the repeated failure to warn
individuals not to bring cell phones into the SCIF. In fact, the
military judge in the case, CDR James Winthrop, was found twice
with a ringing cell phone in the midst of testimony on highly
sensitive program information.
B. Violations on
the Proper Marking, Storage, and Handling of Program and Other
Classified Information.
1. The Navy conducted
three classification reviews that were grossly negligent. This
failure resulted in mismarkings and the unauthorized release,
discussion and storage program information mistakenly marked as
unclassified or "secret."
2. The defense has
repeatedly found copies of program information that contained no
program markings. As late as last week, the defense found Mr. Bill
McKinney, a high program official, relying in his testimony on a
document that was improperly marked.
3. Program information
has been stored in areas that are not allowed to house such
information over repeated defense objections.
4. Controlled
documents have been copied, taken out of control channels, and
treated as "working papers." Each of the government witnesses who
are proffered as experts in national security regulations have
engaged in this conduct. These copies do not fit the standard
definition of working papers because they are final products that
are transported and released outside the individual program
offices. As such, the witnesses defeated the purpose of the
control system by developing unaccounted copies of controlled
documents and letting those documents be made part of an official
court record. In some cases it is impossible to determine how many
copies of a controlled document exist.
5. Unclassified
documents have been designated as classified outside of the proper
classification review process, including a document so designated
by CDR Jowers who admitted to using her own "instincts" in the
matter.
6. Virtually all of
the program material in the case has been handled without the back
cover or last page having any markings to show the classification
level of the material contained therein. Many of these documents
have TS/SCI information on the final page. Moreover, CDR Jowers
has been allowed, over repeated objections of the defense, to
submit classified documents as exhibits and to show those
documents to witnesses without a cover sheet. Both CDR Jowers and
CDR Winthrop refused to stop the practice and CDR Winthrop only
asked that covers be added by "the end of the Article 32
proceedings" -- a potential delay of months.
7. The Navy did not
clear or arrange for proper protection of program information
during the investigation of Navy investigators, who were uncleared
for access to such information.
8. The Navy knowingly
allowed unclassified material marked as classified despite months
of objections from the defense that such classification violated
federal law.
9. The Navy refused
numerous demands for declassification review and mandatory
classification reviews which could have avoided the unauthorized
disclosure of program information.
10. The Navy
repeatedly refused to confirm the access of individuals to
programs, leading to numerous individuals being exposed to
programs for which they were not cleared.
11. The Navy
repeatedly failed to respond to defense objections that specific
program information was being held in unsecured or unauthorized
locations.
12. On the stand
various security officials, including Ms. Mary Rose McCaffrey,
showed an astonishing lack of training or knowledge on the most
basic national security procedures in the copying and handling of
controlled documents. These admissions are on the transcript in
the proceedings.
C. Disclosure of
Program and Other Classified Information to Unauthorized
Individuals.
1. The Navy repeatedly
allowed program information to be disclosed to over a dozen
individuals without access to those programs, including people
without an active clearance of any kind.
2. The Navy has
allowed various NCIS investigators to collect, report, and discuss
program information without proper access or clearance. This
includes disclosures that were incorporated into documents
prepared on uncleared computers or shown on videos in unsecured
settings.
3. Efforts by the
defense to demand proof of access of individuals in these
proceedings was opposed by CDR Jowers and CDR Winthrop resulting
on continued violations until the defense refused to continue
absent such written proof. Once proof was supplied, the true scope
of the violations was even more extensive than the defense had
ever expected.
D. Improper
Response to Unauthorized Disclosures and Other Allegations of
National Security Violations.
1. The Navy has failed
to obtain Inadvertent Disclosure Agreements (IDAs) from
individuals with unauthorized access to program information
despite the fact that the defense has been able to locate these
individuals and confirm their prior violations of unauthorized
access.
2. One high-ranking
program official, Mr. Bill McKinney, stated that the Navy had
decided to wait until the end of this case to act to get IDAs
signed and retrieve program information in the possession of such
uncleared individuals. Meanwhile, some of these individuals have
been in possession of information for which they are not cleared
for seventeen months. Others have since left the government. When
challenged on this lack of due diligence, Mr. McKinney claimed
that many of these individuals are unreachable despite the fact
that the defense has had no difficulty in locating the same
individuals.
3. National security
officials assigned to the proceedings stated that, when confronted
with a witness who lacked any clearance, that the acceptable
approach was to intentionally reveal program information and then
get the witness to sign an IDA.
4. In one instance,
the defense noted that a document's cover page referred to a
program for which no one, not even the security officials, had
access. The security officer assigned to the proceedings suggested
that the proper response was for him to read the document to
confirm that the document did indeed contain references to a
program for which neither he nor anyone in the room was given
access.
5. When the defense
repeatedly challenged the access sof spectators such as LT Orr to
various programs, the challenge was objected to by CDR Jowers as
meritless and CDR Winthrop repeatedly refused to take action.
Ultimately, the defense was proven correct that LT Orr and others
did not have access to program information revealed in the
proceedings.
6. When the defense
repeatedly demanded a matrix showing the programs for which
participants were given access, such written confirmation was
denied. Instead, Ms. Wright repeatedly and falsely informed the
defense that everyone was cleared for these programs. Ms. Wright
made such oral assurances three times -- each time it was shown
that the statements were false and unauthorized disclosures
resulted. It was only after the defense refused to continue
without written confirmation that a matrix was produced -- the
matrix showed numerous instances of unauthorized access to program
information.
7. The Navy, through
CDR Jowers, has concealed evidence of violations of national
security rules and regulations.
8. Even after dozens
of documented national security violations, the Navy refused to
conduct an independent inquiry into the on-going violations and
allowed identical violations to occur unabated over defense
objections.
9. CDR Jowers and CDR
Winthrop have repeatedly admitted to knowledge of national
security violations but never complied with their obligations as
security clearance holders to report violations.
10. Each time the
defense notices a security violation related to the proceedings we
raise it immediately and ask that corrective action be taken
without delay. Whenever such a concern is raised, CDR Jowers
objects that now is not the proper time to consider such
violations and asserts that they can be dealt with at some
unspecified later date. CDR Winthrop has adopted a similarly
passive attitude and refuses to order any immediately corrective
action.
III. REQUESTED
RESPONSIVE OR CORRECTIVE ACTION.
The defense has now
attempted every possible official avenue to address these
violations. The defense first raised its concerns with the immediate
Navy officials and program officials responsible for the violations.
When these officials refused to act, the defense asked Vice Admiral
Joseph Mobley, the convening authority, to act. When this effort
failed, the defense asked CDR Winthrop to act. When this failed, the
defense wrote to you for intervention as well as other high-ranking
officials. When this failed, the defense wrote various members of
Congress on the intelligence committees. None of these efforts have
produced an inquiry or investigation and the violations have
continued.
What is especially
disturbing is that every effort by the defense to address national
security violations has been met with consistent and determined
opposition from the Navy. The prosecutor in the case, CDR Jowers,
has opposed every such effort, including determining if material in
the proceeding required immediate action to avoid a compromise of
national security. It was due to this opposition that the
proceedings continued to occur in an improper SCIF and program
material was released to unauthorized persons over the numerous
defense objections.
In my earlier letters, I
expressed confidence that my obligations were satisfied by raising
these violations to you and to Congress. I can no longer make such
an assumption. Due to the lack of response to my earlier letters,
additional violations have occurred and national security interests
have been compromised. I feel compelled to seek all possible avenues
to spur meaningful action in this area without further delay.
I ask that three steps
be taken immediately to address these concerns. First, I ask that an
inquiry be made as to the scope of prior violations and the on-going
failure to properly control program information in this case. Given
the fact that program security officials, like Ms. McCaffrey, have
had direct knowledge of these violations and not acted to prevent
them, it is essential that this inquiry be made by an outside and
independent panel. Second, at a minimum, the defense should be
allowed the opportunity to detail these violations at the outset of
such an inquiry and to speak with officials conducting the inquiry.
Third, I ask for a formal revocation review of the clearances of
those officials who either committed these violations or refused to
take corrective action to protect the information. This review
should also include a specific review of the program security under
the supervision of Ms. McCaffrey, which was the source of the most
extensive and serious violations in the course of these proceedings.
Please inform me if you
intend to intervene in this matter or to order any of the three
responses requested above. If you intend to refer this matter for
investigation, please indicate whether you will also ask for a
formal inquiry, defense presentation of evidence, or clearance
revocation review. Given the on-going nature of these violations and
the sensitivity of the information, I respectfully request an
expedited response.
Sincerely,
Jonathan Turley
Defense Counsel for Petty Officer Daniel King
cc:
The Hon. Donald Rumsfeld
The Hon. Robert B. Pirie, Jr.
RADM Donald Guter
VADM Mobley
CAPT McPherson
CDR Newcomb
CDR Sundel
CDR Winthrop
CDR Jowers
LT Bailey
LT Freedus
CTR1 King
Members of Congress