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 writing to inform you of a series of national
security violations relating to special program material and
information. I am reporting this misconduct pursuant to my briefing
and access to SCI information and special access programs. I am
under an obligation to report adverse or derogatory information as
to individuals handling, or given access to, SCI material. I have
witnessed a series of serious and willful security breaches in the
handling and unauthorized disclosure of such material. Since these
allegations involve program security personnel and continue despite
objections from various individuals with SCI clearances, there is an
immediate and urgent need for action to protect the integrity of
these programs.
The reported incidents discussed below
have been established by the defense on a classified record. These
incidents involve willful breaches of security procedures as well as
unauthorized disclosures by Commander James Winthrop, Commander L.
Lynn Jowers, security officer Ed Glenn, and security officer Karen
Wright. While the defense previously revealed alleged national
security breaches by two witnesses in the case, LT Mary Lewis and
Major Kathleen Heverly, the instant report addresses only these four
officials and their on-going failure to protect SCI and special
access information. Due to the classified nature of this
information, the allegations below are presented without specific
references to programs or equity holders involved in the case.
Under
Director of Central Intelligence Directive 1/14, enacted
pursuant to Section 102 of the National Security Act of 1947, and
Executive Order 12333, I am required to take action to report
violations of security procedures and the safeguarding of SCI
material. This Directive and other controlling authorities require
that any doubt concerning the safeguarding of SCI material must be
resolved in favor of protecting such information, restricting
access, and confirming proper control and access. Moreover, this
Directive establishes that "[i]ndividuals determined to have
disclosed classified information to any person not officially
authorized to receive it may be considered ineligible for initial
or continued SCI access." Furthermore, this Directive
established that security violations are often committed "by
carelessness or ignorance" but that "a pattern of [such] violations
may be sufficient ground for a recommendation of disapproval."
Specifically, such repeated violations require a determination of
whether SCI access will be continued.
The standards contained in the Director
of Central Intelligence Directive 1/14 are mirrored in the CFR and
other regulations governing the responsibility of both individuals
accused of breaches as well as those who believe that classified
information is not being properly safeguarded. Federal regulations
expressly emphasize that "disclosing classified information, by any
means, to unauthorized persons or discussing or handling classified
information in a manner than would make it accessible to
unauthorized persons" is incompatible with withholding even the most
basic clearance. 32 CFR §154.61. Federal regulations further require
that any "derogatory information" on individuals with such access
must be reported immediately and "shall be referred by the most
expeditious manner" for review. 32 C.F.R. §154.55.
All of the incidents described below
occurred in the preparation for, or the participation in, classified
proceedings held at Quantico Marine Base. Despite repeated
objections by defense counsel, these violations have been continuing
on a daily basis in flagrant disregard of national security laws and
regulations. Given the recurring and confirmed violations, I must
ask for an expedited inquiry and action to bring the proceedings in
full conformity with national security regulations to protect the
program information in this case from willful or inadvertent
disclosure. Moreover, since these incidents include derogatory
information as to holders of SCI clearances, I ask that you review
the continued or interim access of these individuals to SCI material
or special access material.
Commander James Winthrop
1. Unlawful Access to Program
Information. Commander James Winthrop is the Investigating
Officer (I0) assigned to the Article 32 proceedings in this case. At
the outset of the investigation, CDR Winthrop stated that everyone
in the Special Compartmented Information Facility (SCIF) had secured
TS/SCI clearances and the necessary access to the various programs
involved in the case. CDR Winthrop expressly asserted that he had
such access before the start of testimony. The government then
proceeded to present the testimony of Mr. Ed Glenn, a civilian
security expert associated with some of the programs in this case.
Mr. Glenn proceeded to give information on each and every program
including: (a) code names; (b) scope of activities under the
programs; (c) comparisons between classified programs; and (d) the
various agencies involved in such programs. CDR Winthrop repeatedly
solicited further information from Mr. Glenn on these programs. In
the course of this testimony by Mr. Glenn, defense counsel LT Robert
Bailey became concerned that he was not cleared for one program
(hereinafter Program A). A subsequent review of persons with
clearances revealed that CDR Winthrop and a spectator were not
cleared for this program. During his cross-examination, Mr. Glenn
established that it is the obligation of each individual in the room
to determine their own access to information and to stop disclosures
(as did LT Bailey) if they are uncertain of such access. CDR
Winthrop admits that he failed to obtain the necessary access to the
programs in this case before participating in a detailed disclosure
of the information. Moreover, the record establishes that CDR
Winthrop listened to a full description of the program and never
asked (as did LT Bailey) for confirmation of his access.
2. Failure to Properly Protect
Program Information. As the I0, CDR Winthrop was ultimately
responsible for the failure to individually confirm the access of
every individual, including himself and the spectator, for the
information in the case. This is particularly clear when the defense
specifically called for the exclusion of spectators and questioned
their need to be present for such program information.
3. Second Alleged Unlawful Access
Violation. CDR Winthrop also was given access to documents with
markings and information which he was not cleared to receive. These
documents and information were supplied by CDR Jowers and security
officers in the form of statements made by individuals in this case,
including a statement of LT Mary Lewis that was put into evidence
before the violations were discovered.
4. Third Alleged Unlawful Access
Violation. CDR Winthrop committed additional violations in
relation to another program (hereinafter Program B) even after the
disclosure of the violations relating to Program A. On Monday,
October 16, 2000, CDR Winthrop admitted to a failure to secure
access to Program B before participating in the discussion of
material under that classification. This failure was revealed by Ms.
Francine Stephens, a civilian security official with the Judge
Advocate General at the Washington Navy Yard. Again, CDR Winthrop
failed to ascertain clearances under each of the programs even after
his earlier violation.
5. Refusal to Comply with Access
Verification Requests. CDR Winthrop also refused to comply with
a standard request for written verification of access of individuals
in the SCIF. After the disclosure of the multiple access violations
leading up to the October 16, 2000 hearing, the defense asked for
written verification of the access of everyone in the room before
further information was disclosed. This was done after three prior
assurances by security officer Karen Wright that the access of every
individual had been established. All three of these assurances
proved false and led to security breaches. While CDR Winthrop agreed
that this request was made "in good faith" and would have to be
satisfied, he refused to delay the presentation of further program
information until written verification could be acquired. CDR
Winthrop maintained this position despite the fact that CDR Jowers
expressed a preference to wait until the next day to present the
information. When the defense insisted on such confirmation as a
condition for moving forward, CDR Winthrop ordered that all parties
continue despite the stated objections of the entire defense team
including the security expert assigned to the defense. The defense
refused and, in order to avoid participating in a further violation,
the defense walked out of the proceedings. The defense refusal
forced the termination of the proceedings until Tuesday, October 17,
2000. By refusing to require written confirmation of access and
relying on the oral assertion of Ms. Wright despite her demonstrated
unreliability, CDR Winthrop failed to protect the integrity of
program information. Moreover, CDR Winthrop refused to comply with
basic procedures in establishing access when he attempted to force
the participation of defense members, including two junior officers,
without satisfying their concerns over the clearance of all
individuals for the information. The defense concern was realized
after the hearing on October 16, 2000 when the defense learned that
LT Orr may not be cleared for access to yet another program in this
case despite the assurances of Ms. Wright.
6. Refusal to Allow Confirmation of
the "Need to Know" Spectators. Defense counsel have repeatedly
attempted to determine the "need to know" of a LT Orr, who has been
a spectator at these proceedings. Defense counsel repeatedly asked
for specific proof (names and dates) that the individual equity
holders over the relevant programs had given such approval. In
response, CDR Jowers varied from claims that she had "direct
contact" with the equity holders to approval by a single individual
to approval "through the Convening Authority." CDR Winthrop
repeatedly refused efforts by defense counsel to determine the
specific authorization on the record over two days of proceedings.
Rather, CDR Winthrop repeatedly stated that the law only required
that he be satisfied on this point. Ultimately, CDR Jowers never
offered specific names and referred generally to a meeting with
"equity holders" without identification of the agencies. She stated
that she could not remember the names of the representatives and
could not provide any documentation of the claimed determination of
the "need to know."
7. Failure to Protect the Integrity
of the SCIF Proceedings. While clearly not as serious of the
above breaches, CDR Winthrop also violated rules on the use of
cellular phones in a SCIF. On October 4, 2000, CDR Winthrop's
cellular phone rang after hours of testimony on highly classified
program information. CDR Winthrop was asked to immediately turn off
the cellular phone as a violation of the SCIF restrictions. However,
this violation was repeated again after a recess and after
additional classified discussion in the SCIF.
8. Pattern of Willful Failures to
Follow Security Procedures and to Protect SCI Material from
Unauthorized Disclosure. The repeated refusal of CDR Winthrop to
follow procedures and verify basic access information shows a
willful disregard of his obligations under the SCI briefing to
protect classified information and special access information.
COMMANDER L. LYNN JOWERS
1. Inadvertent Disclosure Violation.
Trial counsel in this case is responsible for a series of
intentional and inadvertent disclosures of TS/SCI material and
special access material. The first such violation began in December
1999 when the government provided the defense with 5 binders of
information marked as SECRET/NOFORN. Shortly thereafter, government
security officers found TS/SCI program information within these 5
binders marked SECRET. In the interim, CDR Jowers repeatedly
provided these binders to defense counsel who did not have TS/SCI
clearance.
2. Inadvertent Disclosure Violation
(2). A second inadvertent disclosure was disclosed in October
2000 when the government found, again, program material in the 5
binders. During his testimony, Mr. Glenn admitted that the binders
marked SECRET contained program information. This material had been
reviewed more than a dozen times by defense counsel who, at the
time, did not have and was not actively seeking a TSI clearance.
3. Inadvertent Disclosure Violation
(3). A third violation occurred in the second week of October
2000 when CDR Jowers had material delivered to defense counsel's
office under her express assertion that the material did not contain
program information. Within seconds of opening the material, defense
counsel discovered clearly marked program information which should
not have been removed from a SCIF or reviewed in an unsecure office.
4. Intentional Disclosure of Program
Information to Individuals Without Access and Failure to Follow
Procedures for Disclosure of Such Information. Weeks prior to
the Article 32 proceedings, CDR Jowers is also believed to have
shown LT Lewis a version of her statement containing program code
names and identifying specific provisions with specific programs.
This material contains TS/SCI material as well as special access
program information and markings. LT Lewis did not possess any
clearance and it was only in the last week that the Navy attempted
to obtain a waiver for such access. Such disclosure was done in full
knowledge of the classification of this information on the face of
the document and without following the procedures for determining LT
Lewis' access for such information. In fact, while apparently
disclosing this information to LT Lewis, CDR Jowers had previously
relied on the special access designations of the information in
barring access to uncleared defense counsel.
5. Intentional Disclosure of Program
Information to Individuals Without Access and Failure to Follow
Procedures for Disclosure of Such Information (2). A second
violation by CDR Jowers occurred when she gave the Lewis statement
with program markings and identifications to CDR Winthrop who did
not have access to the program information at the time.
6. Intentional Disclosure of Program
Information to Individuals Without Access and Failure to Follow
Procedures for Disclosure of Such Information (3). A third
violation by CDR Jowers occurred when she read the program markings
and elicited testimony on programs without determining the access of
spectators in the proceedings. One such spectator did not have the
necessary program access.
7. Intentional Disclosure of Program
Information to Individuals Without Access and Failure to Follow
Procedures for Disclosure of Such Information (4). A series of
violations and attempted violations occurred on October 13, 2000 in
relation to CDR Jowers effort to circumvent national security rules
and regulations. Defense counsel repeatedly objected to the failure
of CDR Jowers to establish the access of individuals in the
classified proceedings. The defense specifically objected to LT
Lewis being called into the SCIF without determining the level of
her clearance and access to information. CDR Jowers, and Ms. Wright
had initially argued that LT Lewis could simply testify on her
statement and could be shown her statement to incorporate the
statement into the record. Defense counsel objected that the
statement contained program markings and that LT Lewis should not
have been allowed into the SCIF without a clearance. In fact, when
LT Lewis entered the SCIF, neither CDR Jowers nor Ms. Wright asked
for program material to be covered despite the fact that such
information was visible on every table. It was only upon the defense
objection, resisted by CDR Jowers, that LT Lewis was removed to
permit discussion of her access. The entry of LT Lewis into the SCIF
exposed program information without warning that she lacked access
and compromised the integrity of the SCIF.
8. Attempted Intentional Disclosure
of Program Information to Individuals Without Access. In clear
violation of security rules and regulations, CDR Jowers insisted
that LT Lewis be allowed to return and testify on information that
she knew to be program information and that she then be
cross-examined on such information. No prior inadvertent disclosure
form was submitted for LT Lewis' original disclosure of this
information. No authority was supplied for LT Lewis to discuss such
information again in her testimony. To the contrary, CDR Jowers
maintained that no such authorization was needed. The defense
succeeded in preventing this violation by convincing the IO that
some specific authorization must be shown.
9. Attempted Intentional Disclosure
of Program Information to Individuals Without Access (2). After
the defense threatened to leave the October 13, 2000 hearing rather
than participate in another violation, it was determined by the IO
that authorization would be required. CDR Jowers again objected and
stated that no such authorization would be required. After
additional discussion, the government then stated its intention to
justify testimony of LT Lewis on the following Monday with an
authorization from the Chief of Naval Operations (CNO). The support
for this position was a reference on an inadvertent disclosure form.
The IO indicated that he believed that this was sufficient. The
defense again objected and stated that only a signed Non-Disclosure
Agreement establishing that the individual had been briefed or "read
into" the programs would suffice. On Monday, October 16, 2000, CDR
Jowers attempted again to call LT Lewis. CDR Jowers, however,
abandoned her earlier position and now sought the testimony on the
basis of a letter from the Director of Naval Intelligence
authorizing "temporary access" to these programs. While this letter
was used to support a claim that LT Lewis had been briefed into the
programs, the letter failed to establish any of the conditions set
forth in the CFR for such access. After apparently reviewing these
procedures for the first time, CDR Jowers again stated that she
could not produce the necessary authorization. Again, the only
reason this witness did not violate national security rules and
regulations was that persistence of the defense and its refusal to
allow the violation to occur.
10. Failure to Act on Mandatory
Declassification Review Requests and Classification Challenges.
CDR Jowers also failed to act on repeated requests for
declassification review and classification challenges despite the
obviously unclassified nature of material marked SECRET in the
evidence binders. It was not until October 2000 that a
classification review was performed, almost a year after the first
requests and after she repeatedly invoked classification barriers in
refusing disclosures to counsel. CDR Jowers failed to follow the
regulations regarding classification challenges despite repeated
assurances that the process was underway. 11. Pattern of Willful
Failures to Follow Security Procedures and to Protect SCI Material
from Unauthorized Disclosure. The repeated refusal of CDR Jowers
to follow procedures and verify basic access information shows a
willful disregard of her obligations under the SCI briefing to
protect classified information and special access information.
ED GLENN
1. Negligent Disclosure of Program
Information to Individuals Without Access. Mr. Glenn is a senior
program security officer who appeared as a witness in a preliminary
hearing in this case. During this testimony, the unauthorized
disclosure of program information was discovered. Mr. Glenn was
responsible for the vast majority of such information disclosed on
Program A. In his testimony, Mr. Glenn admitted that he was under an
obligation to determine the access of individuals before disclosing
the information. He admitted that he did not in fact make this
inquiry. Later, Mr. Glenn referred to his failure to ascertain the
access of individuals to program information as a mere
"administrative oversight" and not a serious concern.
2. Intentional Disclosure of Program
Information to Individuals Without Access and Failure to Follow
Procedures for Disclosure of Such Information. It is believed
that Mr. Glenn participated in a meeting in which he and CDR Jowers
showed LT Lewis a version of her statement and discussed its
contents containing classified program code names and identifying
specific provisions with specific programs. This material contains
TS/SCI material as well as special access program information. LT
Lewis did not currently possess any clearance and it was only in the
last week that the Navy attempted to obtain a waiver afford LT Lewis
access to these programs. Defense counsel attempted to determine who
participated in this meeting but were prevented from doing so by CDR
Winthrop.
3. Negligent Disclosure of TS/SCI and
Program Information to Unauthorized Individuals. It is believed
that Mr. Glenn was involved in the repeated failures to properly
mark material in the binders given to the defense, including the
failure to remove program information described in the Jowers
violations above.
4. Failure to Require Proof of Access
by Individuals in the Investigation and Article 32 Proceedings.
It was ultimately Mr. Glenn's responsibility, as well as Ms.
Wright's, to ascertain the access of individuals prior to their
exposure to program information. The defense. has discovered a
number of individuals apparently not given access. Yet, these
individuals appear to have typed or reviewed the statements of Major
Heverly or LT Lewis which contained TS/SCI and special access
information.
5. Pattern of Willful Failures to
Follow Security Procedures and to Protect SCI Material from
Unauthorized Disclosure. The repeated refusal of Mr. Glenn to
follow procedures and verify basic access information shows a
willful disregard of his obligations under the SCI briefing to
protect classified information and special access information.
KAREN WRIGHT
1. Negligent Disclosure of Program
Information to Individuals Without Access and Failure to Follow
Security Procedures. As the security officer assigned to the IO,
Ms. Wright bears considerable responsibility for the series of
violations committed in the Article 32 proceedings. The first such
failure concerned the lack of program access given to the IO despite
her assurances that the IO did have such access before the
disclosure of program information.
2. Negligent Disclosure of Program
Information to Individuals Without Access and Failure to Follow
Security Procedures (2). Ms. Wright further failed to ascertain
the program access of a spectator prior to the discussion of Program
A, as discussed above.
3. Negligent Disclosure of Program
Information to Individuals Without Access and Failure to Follow
Security Procedures (3). Ms. Wright further failed to ascertain
the program access of the IO to Program B until after his exposure
to such information. 4. Negligent Disclosure of Program
Information to Individuals Without Access and Failure to Follow
Security Procedures (4). Ms. Wright further failed to establish
the access and require proper authorization before LT Lewis entered
the SCIF for testimony, as described above.
5. Negligent Disclosure of Program
Information to Individuals Without Access and Failure to Follow
Security Procedures (5). Ms. Wright failed to warn individuals
in the SCIF that LT Lewis lacked access to TS/SCI material or
program material when she entered the SCIF or to alert individuals
to cover such material.
6. Negligent Disclosure of Program
Information to Individuals Without Access and Failure to Follow
Security Procedures (6). Ms. Wright failed to object to the
repeated attempts of the government to permit LT Lewis to testify
(1) without authorization; (2) with only authorization from the
Chief of Naval Operations; or (3) without satisfying the express
conditions of 32 CFR § 147.32-33 and the DCID 6/4.
7. Negligent Disclosure of Program
Information to Individuals Without Access and Failure to Follow
Security Procedures (7). On three separate occasions, Ms. Wright
reportedly represented to the IO that every one present for the
proceedings was cleared for access to programs in the case. These
assertions were false and clearly the result of a failure to make an
adequate inquiry. These failures led to repeated violations.
8. Pattern of Willful Failures to
Follow Security Procedures and to Protect SCI Material from
Unauthorized Disclosure. The repeated refusal of Ms. Wright to
follow procedures and verify basic access information shows a Wilful
disregard of her obligations under the SCI briefing to protect
classified information and special access information.
The individuals discussed in this report
continue to handle and disclose SCI and special access material. In
today's hearing, further violations were prevented only by the
defense leaving the SCIF. However, CDR Winthrop and CDR Jowers have
stated an intention to proceed on October 17, 2000 without
establishing that basic procedures and protections have been
confirmed in the case. Defense counsel is, therefore, in the
position of placing the rights of our client at risk or adhering to
the briefing instructions contained in the Director of Central
Intelligence Directive 1/14 and other controlling authority. For
that reason, I ask for action by your office without delay.
Sincerely,
Jonathan Turley
Defense Counsel for Petty Officer Daniel King
cc:
The Hon. William S. Cohen
The Hon. Richard Danzig
RADM Donald Guter
VADM Mobley
CDR Winthrop
CDR Jowers
LT Bailey
LT Freedus
CTR1 King