PREPARED STATEMENT OF
ROBERT A. BAILEY
LIEUTENANT
JUDGE ADVOCATE GENERAL'S CORP
UNITED STATES NAVAL RESERVE
LEAD DEFENSE COUNSEL
FOR PETTY OFFICER DANIEL M. KING
Thank you, Mr. Chairman.
Mr. Chairman, members of the
Subcommittee, my name is Robert Bailey. I currently represent Petty
Officer Daniel M. King and served as a detailed military defense counsel
during his prosecution for alleged espionage. I am currently serving on
active duty in the Judge Advocate General's Corps, United States Naval
Reserve. I was commissioned in February of 1998 while still in law
school. I graduated with high honors from George Washington University
Law School in May of 1998 and was admitted to practice law in the State
of Washington in December 1998. Following my admission to practice I
reported to my first duty station, the Naval Legal Service Office (NLSO)
North Central, Washington, D.C., in January 1999. I started at the NLSO
practicing civil law on behalf of service members. In September 1999 I
was transferred to the defense section where I was assigned to represent
service members in criminal trials.
Less than two months after I
became a defense counsel, my chain of command assigned me to represent
Cryptologist Technician (Collection) First Class (CTR1) Daniel M. King
at his initial review hearing. This is a hearing to determine whether
the accused should remain in confinement pending disposition of his
case. Prior to the hearing the command had a vague notion of the nature
of the offenses but was unaware of any actual charges. In conducting the
hearing and speaking with CTR1 King, I quickly realized that I would not
be able to handle this case alone. When I returned to the NLSO, I
informed my command that I would require assistance and asked that they
assign the most experienced defense counsel in our office at the time,
LT Matthew Freedus, to act as assistant defense counsel. Although far
more experienced than any other defense attorney in the office, LT
Freedus had only been a defense counsel for 10 months.
I was assigned to act as
CTR1 King's military defense counsel in November of 1999 and have served
in that capacity ever since. It soon became clear upon review of the
evidence that CTR1 King never engaged in espionage. However, the
evidence of abuses and unconstitutional practices by the government was
overwhelming. The Naval Criminal Investigative Service (NCIS) agents
investigating the case engaged in constitutionally abusive practices
with disturbing regularity. These abuses continued into the attempted
prosecution and even after the case was dismissed. The abuses by
government agents in this case shock the conscience to such an extent
that in-depth investigation into the tactics employed by the NCIS and by
military prosecutors is necessary to avoid such a travesty of justice
befalling any other service member. Production of a verbatim transcript
of the Article 32 proceeding in the case will establish many of these
violations beyond question.
While LT Freedus will
discuss the factual shortcomings of the government's case and Professor
Turley will discuss the government's unwillingness to perform basic
prosecutorial functions and the overall scope NCIS practices in this
case and others, I will direct my comments towards the pattern of
unconstitutional and abusive practices by the government. Additionally,
I concur with the statements of my co-counsel in their testimony before
this committee.
The abuses in this case
essentially fall into two major categories: those committed by Naval
Criminal Investigative Service during their investigation, and those
committed by the prosecution and convening authority during the
attempted prosecution. These abuses were so pervasive and so serious
that the actors were either completely oblivious to the standards of
appropriate conduct, or felt they were not bound by the laws and
Constitution of the United States. Investigation and intervention by
this body is necessary to ensure that the rule of law is observed and
protected by military prosecutors and investigators.
II. CONDUCT OF NCIS
INVESTIGATORS
The conduct of NCIS agents
in this case was nothing short of shocking. Independent reviewers have
stated that their techniques were barbaric and hearken back to the
unconstitutional abuses of the 1920s and 1930s. That such conduct
occurred at the hands of NCIS is not surprising to one regularly
involved in military justice practice within the Navy. Indeed, such
conduct is predictable based on the training and guidance manual
published by the NCIS. According to the NCIS Manual, Chapter 14 -
Interrogations, any person who adamantly denies any wrongdoing and
points to his clean record is "subconsciously confessing." If a confused
suspect asks what is going to happen to him, the NCIS believes this is
an indication that he "is beginning a confession." Additionally, agents
are to convey the idea that they will "persist as long as required to
resolve the issue under investigation" and that they "will not give up
the interrogation." With this guidance in hand, the NCIS agents pursued
CTR1 King with such unconstitutional vigor that King's only recourse was
to confess to a crime he did not commit in the hopes that he would
eventually receive a lawyer and the truth would come out.
The practices used by the
NCIS can be broken into five distinct categories. First, the agents
conducted polygraphs examinations and related interrogations in an
unethical and prejudicial manner. Second, the interrogation techniques
employed by NCIS agents over the course of almost a month of questioning
were an unquestionable violation of CTR1 King's constitutional rights.
Third, NCIS agents blatantly disregarded CTR1 King's repeated requests
to stop the interrogations and repeated requests to obtain a lawyer.
Fourth, the investigators abused their positions and engaged in
unethical and illegal behavior during interrogations with CTR1 King's
friends, family and coworkers. Finally, the NCIS continued to impede
CTR1 King's attempts to prove he did not commit the acts alleged by
overclassifying all evidence in the case, permitting its two lead agents
to refuse to speak with defense counsel outside the presence of an
attorney, and making false statements to the media.
Public statements issued by
the Navy have stated that all polygraph examinations performed on CTR1
King were conducted according to Department of Defense regulations. This
is completely untrue. One of the Navy's statements indicates that
recording the examinations is a requirement under the regulations. The
first three days of exams were recorded in accordance with those
regulations; the remainder were not. Perhaps agents stopped recording
because they were aware that they were not conducting examinations in
accordance with the regulations. Those examinations that were recorded
demonstrate a sharp departure from the practices established in the
Department of Defense regulations.
Immediately following the
first polygraph examination, the polygrapher, Special Agent (SA) Robert
Hyter, told CTR1 King that he had failed the exam. This was a lie. SA
Hyter actually was unable to render an opinion on the chart produced by
the examination. SA Hyter never went back and attempted to retest CTR1
King on those questions in an effort to get a more accurate reading. An
indeterminate or "no opinion" reading on a polygraph is very common.
Both LT Freedus and I had similar results with our first polygraph
examinations following assignment to this case. The polygraphers simply
reran our polygraph tests and obtained positive results. SA Hyter never
took this important and logical step in his polygraph examination of
CTR1 King.
By lying to CTR1 King and
failing to retest him, SA Hyter created a situation in which CTR1 King
would be more likely to show an elevated response to the relevant
questions when they arose again. The NCIS Manual encourages agents to
lie during interrogations, but Department of Defense regulation
5219.48-R prohibits using the polygraph as such a "psychological prop."
Lying about polygraph results is sure to result in inaccurate results.
CTR1 King undoubtedly experienced considerable anxiety regarding the
relevant questions after being lied to regarding the prior results. Such
anxiety can create a false negative or deceptive reading to these
questions. See Benjamin Kleinmuntz & Julian J. Szucko, On the
Fallibility of Lie Detection, 17 L. & Soc'y Rev. 85, 87 (1982); see
David T. Lykken, The Lie Detector and the Law, Crim. Def., May-June
1981, at 19, 21 ("Any reaction that you might display when answering
deceptively you might also display another time, when you are being
truthful.").
As the polygraphs continued,
NCIS agents further departed from regulations when they stopped
recording the examinations and the interrogations that followed. SA
Hyter received specific orders from his superiors at NCIS headquarters
to stop recording the examinations and interviews. SA Hyter felt that he
had no discretion in whether or not to record interrogations. The NCIS
Manual, however, states that the recording of interrogations is
"strongly recommended." Despite more than three weeks of additional
interrogations, no sessions other than a meeting between CTR1 King and
an NCIS psychologist were recorded.
After the initial
indeterminate results, the polygraph examinations continued
intermittently over the next several weeks. CTR1 King would undergo five
or more examinations in a single day with mixed results. The Navy has
stated that he failed the polygraph examinations. In truth, the results
were almost always indeterminate. The only time he registered deceptive
results was after long sessions and days of constant interrogations, and
under clearly impermissible conditions.
The NCIS agents skewed the
results of the examinations by conducting them under conditions destined
to produce inaccurate results. The examinations were regularly conducted
when CTR1 King was fatigued or complaining about a lack of sleep. On the
tape of the examination and interview on October 2, 1999, SA Hyter
states that he recognizes that CTR1 King is very tired, operating on a
lack of sleep and fatigued from the constant questioning. Nonetheless,
he proceeded to administer a series of polygraphs which CTR1 King
predictably failed to pass. Administering a polygraph examination under
these conditions is improper and likely to lead to inaccurate readings,
and is prohibited under Department of Defense regulation 5210.48-R.
Nonetheless, SA Hyter simply told CTR1 King that he appreciated the fact
that he was tired but that the polygraph would take place anyway.
In addition to conducting
examinations under sleep-deprived conditions, the agents mingled
polygraph examinations with abusive interrogations. The commingling of
these techniques had the predictable result of elevating CTR1 King's
reaction to the relevant questions and producing unreliable
examinations. Specifically, CTR1 King was told that he was a spy. SA
Hyter is heard telling CTR1 King during the October 2, 1999
interrogation that his inability to pass the polygraph examination
indicates that he is a spy and has engaged in espionage. When CTR1 King
is asked questions on to this subject in subsequent examinations, he
experiences predictable anxiety over being labeled a spy and has
physiological reactions that trigger a false reading on the polygraph.
This type of manipulation is
the exact reason polygraph results remain inadmissible in court.
Polygraph machines are notoriously unreliable and unethical examiners
can manipulate the results. It is beyond question that NCIS agents
engaged in unethical conduct in this case. The fact that this conduct
extended to the administration of polygraph examinations should come as
no surprise.
The interrogation techniques
utilized by NCIS agents to obtain a confession by CTR1 King were
abusive, unconstitutional, and reminiscent of the practices from decades
past that courts and experts have found tend to produce false
confessions. The length of the interrogations make the confessions
inherently suspect. The NCIS agents kept CTR1 King in a state of custody
they have alternatively called "conditions of liberty," "close
surveillance" and "loose surveillance."
The intrusive, threatening,
and illegal form of custody employed by these agents placed CTR1 King in
a coercive and inescapable environment in which he was essentially
subjected to custodial interrogation 24 hours a day seven days a week
for 26 days. He would spend every waking minute with NCIS agents. They
would wake him up in the morning, monitor him while he took a shower,
take him to breakfast, take him to their office for interrogations, take
him back to a safe house in the evening, monitor him while he slept,
monitor his phone calls to his family, require that he obtain permission
to call his daughters or mail a letter, and then start the process over
again the next day. One agent told CTR1 King that he would shoot King if
he tried to run away. Agents prominently displayed their firearms
whenever they took CTR1 King outside the safe house. Agents made notes
of everything CTR1 King might say that they felt they could later use in
a prosecution, including expressions of hopelessness or fatigue at the
process. Thus, in one sense, CTR1 King was interrogated every waking
minute of every day for 26 days. The only time he was not directly
confronted with one of his interrogators and antagonists was when he was
asleep. This would create a situation in which an individual would not
be able to mentally or physically relax, thereby making it easy for
interrogators to overbear his will.
The NCIS agents denied CTR1
King the important respite of sleep, perhaps because they recognized
that sleep was the only time CTR1 King could escape their presence and
questions. SA Hyter acknowledged CTR1 King's fatigue in one of the
earlier interrogation sessions recorded by NCIS, but he insisted on
pursuing the interrogations and polygraphs anyway. The sleep-deprivation
techniques continued when NCIS took statements from CTR1 King. The best
example of this technique and its results is the statement signed by
CTR1 King in the early morning hours of October 6, 1999. This was the
statement Navy prosecutors felt established the crime of espionage and
according to the prosecutor, Commander (CDR) Lara L. Jowers, was the
only statement she ever intended to offer at the Article 32 hearing.
The uncontradicted facts are
that the interrogation session leading to this statement began at
approximately 8:30 a.m. on October 5, 1999, but the statement was not
signed until 3:30 in the morning the following day - an interrogation
period of 19 hours straight. This followed more than an entire day of
interrogation the previous day from which CTR1 King did not return to
the safehouse until 12:20 am on October 5, 1999. He was allowed to eat
dinner between 12:22 a.m. and 12:26 a.m. (four minutes) before going to
bed at 12:30, only to start the process over again at dawn on October 5.1
CTR1 King denied the veracity of the October 6 statement at the next
interrogation session and almost every subsequent interrogation.
Military judge serving as investigating officer, CDR James Winthrop,
evaluated the weight to be given this statement came to the only
conclusion consistent with logic and Supreme Court precedence; that a
confession obtained under these conditions is inherently suspect and
probably the result of coercion. The confession was obviously CTR1
King's effort to say whatever it took to end the interrogation.
1
The NCIS public affairs office apparently provided log sheets from the
interrogations of CTR1 King to the media. These logs were never
provided to defense counsel even though they reflect highly coercive
techniques. The defense had been unable to obtain these documents
despite numerous discovery requests going back almost 500 days. It
took less than a week to provide the information to CBS News.
In addition to depriving
CTR1 King of sleep, the agents would threaten him and his family. During
one interrogation, SA Hyter learned that CTR1 King is very close to his
family, especially his daughters. He then told CTR1 King that he must
come up with an explanation for his inability to pass the polygraph
examination, or NCIS agents would be forced to interrogate his family in
the same manner in which they were interrogating CTR1 King. This caused
CTR1 King to state that he committed a security violation. Clearly
excited, SA Hyter then asked for details of the violation but CTR1 King
had to tell the agent that he could not provide details because the
incident did not happen. He went on to explain that he was just telling
SA Hyter what he wanted to hear so they could finish the interrogation.
This clearly angered SA Hyter, who launched into an insulting monologue
in which he accuses CTR1 King of suffering from mental illness. At a
later interrogation, SA Helen Sherry told CTR1 King the he must confess
to espionage or "black operations" people would go after his family. She
did not elaborate on this, but CTR1 King recognized the unmistakable
threat.
Much has been made in
various media reports regarding the NCIS forcing CTR1 King to make
confessions regarding his dreams and fantasies. CTR1 King's earliest
signed statements refer extensively to thoughts and fantasies but not
actual criminal acts. In the taped interrogations and according to
reports by the few NCIS agents who were willing to talk to defense
counsel, it is clear that the agents encouraged CTR1 King to talk about
dreams and fantasies. In an interview with defense counsel, SA Hyter
relayed that he explained to CTR1 King that such fantasies and dreams of
espionage were common among people who worked in the intelligence
community. SA Hyter stated during his October 2, 1999 interrogation that
if CTR1 King had thoughts or visions about something then they must have
been true. After weeks of these tactics combined with an ongoing
practice of sleep deprivation and constant questioning and monitoring,
CTR1 King reached a point where he could no longer distinguish between
fantasy and reality. CTR1 King requested hypnotism or drugs to establish
whether the statements he had made to agents were fantasies or reality.
He repeatedly complained that agents were pushing him into talking about
espionage fantasies and that these thoughts were not true. The agents
responded by pushing the discussion forward until they obtained an
admission of guilt based on these fantasies. CTR1 King would then deny
the admission in his next statement or interrogation session. This
process continued with predictable regularity from the date he made his
first statement, through the date of his final interrogation in the brig
at the hands of NCIS agents and Navy prosecutors.
It is clear that NCIS agents
were perfectly willing to take whatever steps necessary to secure an
admission of guilt by CTR1 King. They agents were so desperate for an
immediate confession that they completely ignored applicable national
security rules and regulations and committed breaches of security there
were ironically more serious than some of the offenses for which CTR1
King was eventually charged. Early in the interrogation process, CTR1
King expressed hesitancy over discussing classified information with his
interrogators. Instead of taking the required steps to establish their
clearance levels, the agents lied to CTR1 King and assured him they were
appropriately cleared. The agents then insisted on proceeding. The
agents do not seek to determine what programs CTR1 King is familiar with
or what information might be disclosed in response to their questions
regarding his work and his background. Rather, they insisted he reveal
Top Secret/Sensitive Compartmentalized Information (TS/SCI) in uncleared
areas to uncleared agents. They then prepared statements and reports of
these interviews on uncleared computers and distributed them to other
uncleared agents.
Eventually, an agent
familiar with the classified programs at issue in the case became
involved, yet the NCIS still failed to take any steps to protect the
information, and, in fact, continued to operate as if they were above
the law. They engaged in serious breaches of national security
regulations. One particular violation of national security law was
especially flagrant, egregious, and very dangerous. SA Stewart Wilson
and SA Helen Sherry showed a videocassette to CTR1 King as an
investigative technique designed to get him to confess. The videotape
apparently is a dramatization that involves detailed discussion of
TS/SCI material from at least three different Special Access Programs.
Under applicable law, the tape could only be played on cleared equipment
in a SCIF certified by the applicable programs. Only one of the agents
involved in the case had the clearance necessary to view the information
contained on this tape. He was not even present for this exercise.
Nonetheless, the uncleared agents somehow obtained the tape and decided
to use it as an interrogation technique. They played this tape for CTR1
King in the Homewood Suites Hotel in Arlington, Virginia. The agents
then insisted CTR1 King talk about the contents of the tape and sign a
written statement about the tape typed up on an uncleared computer and
printed in the same hotel room.
When defense counsel learned
of the existence of the tape, we immediately told the government that it
might contain program information, and if so was not being stored
properly. This warning went unheeded for months. Only after repeated
insistence did members of the program offices evaluate the tape and
determine that it did in fact contain TS/SCI information.2
2
When asked on cross examination if he knew about the existence of the
tape, one program expert testified that he was sure he would know if
such a thing existed and stated that one did not. He was confident
that no one cleared for his program would make such a tape without
permission and that he would never give that permission.
This pattern of abusive
interrogation techniques combined with a blatant disregard for national
security regulations reveals a rogue agency that considers itself above
the legal and constitutional standards it was created to enforce and
protect. Prior Congressional inquiry into NCIS interrogation practices
did nothing to deter the agency from violating CTR1 King's rights on a
daily basis for almost a month.
The Navy has tried to paint
a picture of CTR1 King as a man who voluntarily waived all his rights
and provided statements to his interrogators free of coercion or
influence. This version of events ignores several important facts.
First, it fails to comport with an application of simple logic to the
uncontested facts. If CTR1 King actually waived his rights and
cooperated to the extent suggested, why did agents need to interrogate
him for an entire month? Once CTR1 King cooperated and gave a statement,
that should have been the end of it. The only explanation is that CTR1
King was simply making statements in an effort to end the process, but
when NCIS agents established that these statements were factually untrue
or even impossible, they felt the need to get another statement.
Second, the agents ignored
CTR1 King's assertions that he wanted the interrogations to stop. During
the October 2, 1999 interrogation session, CTR1 King tells SA Hyter he
is making things up to please the agent so they can get through with the
interrogation. He attempts to tell SA Hyter that since he is not
conveying truthful information the interrogation "should just st . . "
SA Hyter cuts him off before he can finish the word stop. Whenever CTR1
King attempted to halt the interrogation, or expressed fatigue or a
desire to be done, the agents would cut him off and not let him finish
his complaint or request. When it became clear that the agents would not
permit CTR1 King to stop the interrogations, he was left with no choice
but to provide statements that would satisfy his antagonists, even
though he did not believe them to be true.
Third, agents ignored CTR1
King's efforts to obtain an attorney. CTR1 King clearly asked for an
attorney and the agents refused to let him have one. CTR1 King signed
two polygraph rights warning forms on October 8, 1999. One of these
forms states that CTR1 King earlier raised "the possibility of speaking
with an attorney" but for some unexplained reason no longer wished to
speak with one. 3
3
As this rights warning was signed first thing in the morning, this
discussion regarding the attorney must have taken place during the
previous interrogation session on the 5th and 6th of October, the date
of the statement serving as the basis for the espionage. Indeed, that
statement, which was prepared by SA Stewart Wilson contains a
reference to CTR1 King's request for a lawyer.
Once a person subject to an
interrogation raises his desire to speak with an attorney, all
questioning must stop and he must be provided the opportunity to obtain
one. Edwards v. Arizona, 451 U.S. 477 (1981). Raising the possibility of
speaking with an attorney is equivalent to saying, "Can I talk to a
lawyer?" This is an unequivocal invocation of the right to counsel. See
Smith v. Endell, 860 F.2d 1528, 1531 (9th Cir. 1988) cert. denied 498
U.S. 981 (1990); see also Alvarez v. Gomez, 185 F.3d 995, 998 (9th Cir.
1999). Following such a statement the interrogators must not make any
statement other than "yes" and provide the suspect the opportunity to
speak with counsel. The interrogators may not try to discourage
discussion with a lawyer.4 The NCIS agents
refused to comply with the request, thereby making all subsequent
statements the product of coercion regardless of how many rights forms
they forced CTR1 King to sign. See Arizona v. Roberson, 486 U.S. 675
(1988). An explanation of rights is of no value if the agents then fail
to honor those rights.
4
Apparently when CTR1 King asked if he could speak with a lawyer, SA
Wilson responded, "the only way you are getting through this is
through us. Besides what are they going to give you? Some [Navy]
lieutenant or [Marine] Captain? I eat twenty of them for breakfast" or
words to that effect.
Even if CTR1 King's first
invocation of his right to counsel was not clear enough for the NCIS
agents to comprehend, the written rights forms of October 8, contain two
undeniably clear invocations of the right to have a lawyer present
during questioning. The two forms signed by CTR1 King on October 8, 1999
both read "I do desire to have my lawyer present during the polygraph
examination." Despite this unequivocal request, no lawyer was provided.5
5
In the military system, CTR1 King should have been provided a lawyer
at this juncture. Unlike the civilian system, there is no requirement
that formal charges be filed against an accused before he is entitled
to representation at government expense. All service members are
entitled to representation by qualified military counsel immediately
upon invocation of their counsel rights during interrogation. Had this
invocation been conveyed to the local Naval Legal Service Office by
the NCIS agents, a defense counsel would have been made available
immediately.
Thus, CTR1 King's attempts
to stop the interrogations had been denied earlier in the week, his
attempts to speak with a lawyer were denied, and now his attempts to
even have a lawyer present during questioning were denied. This left
CTR1 King no option. He had been removed from his home and told he could
not go back. He was held under armed guard and monitored 24 hours a day
by his own government. CTR1 King's only possibility of ending his
interrogations was to give the agents what they wanted in the hopes they
would eventually transfer him to the custody of some other entity that
would comply with his constitutional rights, allow him to speak with an
attorney, and permit him to present the true facts to an impartial
party.
The NCIS Special Agents
continued to ignore the Constitution, national security regulations, and
standards of ethical conduct even in their interviews and investigations
outside the presence of CTR1 King. The agents would violate the law and
blatantly lie to civilians and military personnel alike to gather any
type of evidence they could against CTR1 King.
The practice of ignoring
national security law and procedures continued throughout the NCIS
investigation. Based on an assessment of the prepared reports, at least
65 NCIS agents participated in the investigation of this case. Despite
the fact that at least one participating agent knew the nature of the
programs involved and the level of classification of the information at
stake, no steps were taken to ensure that other investigators who were
likely to be exposed to information had the proper clearances. Agents
were sent to interview coworkers regarding classified discussions they
had with CTR1 King in the past. They demanded to know the substance of
those conversations. They then classified this information as Secret.
When security specialists from the various program offices finally
looked at the reports and statements generated by the NCIS agents, they
found hundreds of instances of misclassification. There were literally
dozens of documents containing TS/SCI information that the NCIS had
labeled Secret that were prepared and reproduced outside SCIFs on
uncleared equipment. When the defense raised this issue with program
officials during their Article 32 testimony, they stated they were
unaware of any steps towards corrective action taken to address these
violations. One witness simply stated it was the Navy's intent to wait
until after the case was over to tie up these loose ends. This clear
violation of national security regulations meant that uncleared persons
have been in possession of TS/SCI information for 16 months without the
Navy taking any steps to ensure that the information is not further
disseminated. Some of these individuals no longer work for the federal
government and have refused to speak with defense counsel or government
representatives regarding their role in the investigation of this case.
In its dealing with
witnesses, NCIS agents engaged in a pattern of reprehensible and
unethical conduct. NCIS agents directed a considerable amount of this
hostility towards CTR1 King's family. According to NCIS reports, agents
interviewed CTR1 King's former wife, his two daughters, sisters, and his
brother-in-law "under the pretext of a routine background
investigation." This was an outright lie. Even more troubling than these
lies are the attempts by agents to interview CTR1 King's minor daughter,
Melissa King, outside the presence of her mother. This happened after
CTR1 King had been placed in the brig. At the time, Melissa was only 15
years old and living with her mother in Virginia Beach, Virginia. Mrs.
Jill King had made it very clear to the agent, SA Kelly Murphy, that she
did not want Melissa to be interviewed without Mrs. King's consent and
presence. SA Murphy was undeterred. She attempted to meet Melissa after
school before her mother got home. Melissa said she did not want to
talk. SA Murphy eventually gave up when Mrs. King told her she would be
contacting a lawyer about the harassment.
The illegal practices of the
investigating agents were not limited to attempts to intimidate
children. In their never-ending but ultimately futile quest to obtain
any type of independent evidence of wrongdoing by CTR1 King the agents
ignored national security regulations. They would ask CTR1 King's former
coworkers to relate conversations they had with him that the coworkers
at times thought were outside their need to know or clearances. The NCIS
agents found two former co-workers to make such statements, Lieutenant
Junior Grade (LTJG) Mary C. Lewis, Nurse Corps, U.S. Navy, and Major
(Maj.) Kathleen Heverly, U.S. Air Force. Each relayed a single instance
years earlier in which CTR1 King may have made an obscure reference to
something for which she was not cleared. The investigating officer found
the evidence to support these charges to be remarkably weak and not
worthy of pursuing at a court-martial.6
6
The Investigating Officer found that the charges arising out of these
incidents was not supported by the evidence and that memories of these
two witnesses of a single event each from years earlier would not be
terribly reliable. In addition, the defense never had an opportunity
to cross-examine these witnesses or even determine the proper level of
classification for the material they claim CTR1 King discussed. Had we
been able to, we are confident we would have been able to establish
that LTJG Lewis who was an enlisted cryptologist with a TS/SCI
clearance at the time of the incident did, in fact, have the
appropriate clearance level to hear the discussion. Maj. Heverly, who
also had a TS/SCI clearance at the time, was CTR1 King's supervisor.
She claimed that CTR1 King relayed information related to her job for
which she was not cleared (a juxtaposition that we looked forward to
exploring on cross-examination) by reading the expressions on CTR1
King's face.
The NCIS pursued these
charges with tremendous vigor in the hopes of finally getting some
outside evidence of wrongdoing by CTR1 King. Ultimately they failed, but
in their zeal the agents completely abandoned the guidance of national
security law. The appropriate course of action upon hearing that a
coworker may have heard something for which she was not cleared would be
to call in an agent cleared for the same Special Access Programs as CTR1
King. That agent could then ask LTJG Lewis or Maj. Heverly about the
discussion. If it turned out the discussions did contain information for
which either LTJG Lewis or Maj. Heverly was not cleared, then the agent
would then have her sign a non-disclosure or inadvertent disclosure
agreement to ensure the material was adequately protected. Instead,
agents not cleared for any of the programs involved in the case elected
to take a statement from the witnesses immediately. LTJG Lewis was not
asked to sign any type of non-disclosure agreement regarding the
information until the defense asked to see such an agreement before she
testified and was subject to cross-examination about the information.
Even after NCIS relinquished
custody of CTR1 King and placed him in the brig at Quantico, Virginia,
the agency continued its practice of violating national security laws
and began a pattern of obstructing defense access to evidence in the
case. NCIS agents continued their pattern of lying by providing false
information to defense counsel, the investigating officer, and the
public.
Once CTR1 King was placed in
the brig and charges were preferred, NCIS provided reams of documentary
evidence to the prosecution who in turn provided a copy to the defense.
In a clear violation of national security law, NCIS agents decided to
label every single document Secret. This blatant overclassification was
either an attempt to prevent the public from ever hearing about their
practices, or was a simple desire to avoid the time-consuming task of
correctly labeling the individual documents. Either way, this
overclassification violated national security rules and regulations.
Overclassification is as serious a violation of law as
underclassification. The documents provided by NCIS contained scores of
examples of both.
A few examples will suffice
to demonstrate the absurdity of the classification of this material. The
Secret documents included a photocopy of a birthday card and envelope
that CTR1 King sent his daughter while he was held at the safehouse in
Guam. The card was made by Hallmark and contained the writing, "Love ya,
Dad." The NCIS also classified an exact copy of CTR1 King's service
record, an unclassified document seen by dozens if not hundreds of Navy
personnel in administrative positions throughout CTR1 King's naval
career. The contents of CTR1 King's wallet were photocopied and labeled
Secret, to include his Blockbuster video card, his ATM Card, his Ohio
driver's license, his military identification card, and a discount card
for the Food Lion supermarket.
In addition to these
examples of overclassification, the NCIS underclassified dozens of
documents containing TS/SCI material as merely Secret. The failure to
properly classify material led to months of delay in the proceedings as
the parties were forced to evaluate every line of every document to
determine its true classification level. Additionally, the
underclassification led to unauthorized disclosures, improper storage,
improper reproduction, and the potential compromise of far more TS/SCI
information than CTR1 King was ever accused of disclosing.
This practice of arbitrary
and reckless classification continued even into the Article 32
proceedings. An expert from NCIS testified at the Article 32 hearing
regarding the proper classification of evidence under NCIS purview. His
testimony was internally inconsistent and did not reflect the markings
on the documents. He then refused to be cross-examined as to what
information in a particular document was actually classified, and
refused to return to the hearing to clarify inconsistencies between his
prior testimony and the classification guidance manual. His testimony
left such a degree of uncertainty as to the proper classification of the
material that the investigating officer instructed his assigned security
officer to contact NCIS to determine if several items marked
unclassified were now considered classified. This included a videotape
depicting a meeting between CTR1 King and NCIS psychologist Michael
Gelles. The security officer relayed in the hearing that when she called
NCIS on this issue, she was directed to speak with LT Mindi Seafer of
the NCIS legal office who told her the tape was to be considered
classified.7 The defense objected to this
change but secured its copy of the tape as required by the applicable
regulations. We objected to LT Seafer's qualification to make this
decision and demanded a review of this arbitrary decision. NCIS never
informed the defense that the tape had returned to its original
unclassified status. Instead, it simply released the tape in its
entirety to the media. National security regulations require that all
holders of information be immediately informed of a change in
classification, either up or down. NCIS violated this provision as well.
7
By this point LT Seafer had left her position as a prosecutor to work
as a staff attorney for NCIS. She remained on active duty in the Judge
Advocate General's Corps but was serving as a legal advisor to an
entirely civilian entity. She is not a security expert and is wholly
unqualified and not authorized to provide guidance or make decisions
on the classification of information. In addition, the investigating
officer had already identified her as a witness for the proceedings
based on the defense request to examine her regarding her unethical
and unconstitutional interrogation of CTR1 King in which he made
exculpatory statements.
Even after the dismissal of
charges, NCIS has engaged in unethical and illegal conduct. First, NCIS
Director Brant reportedly made statements to the media regarding this
case that were blatantly false. He told reporters in a written statement
that the polygraph examinations were conducted in accordance with
Department of Defense regulations. As shown above, this was untrue. The
examinations were often not recorded and were conducted under conditions
likely to produce unreliable results. An even more troubling are the
assertion by the Director that NCIS agents did not have any contact with
or interrogate CTR1 King after he was placed in the brig on October 28,
1999. This is patently untrue. On October 31, 1999, SA Kenny Rogers
accompanied the two prosecutors in the case at the time CDR L. Lynn
Jowers and LT Mindi Seafer, to the brig to interrogate CTR1 King. SA
Rogers is one of the supervisory agents in charge of the
counterintelligence section. He personally questioned CTR1 King during
that session and even briefly questioned him outside the presence of the
two prosecutors. In an interview by defense counsel and witnessed by an
impartial Lieutenant who is a staff member of the Navy Marine Appellate
Review Activity, SA Rogers confirmed the existence of the interview and
the fact that CTR1 King made exculpatory statements during this session.
Indeed, he could not deny the meeting because defense counsel had
obtained a copy of the brig visitor log-in sheet for that day indicating
that SA Rogers, CDR Jowers, and LT Seafer had signed in to conduct an
interview.
Finally, NCIS agents have
engaged in obstructionist tactics preventing defense counsel from
gaining access to evidence or witnesses. The two primary investigating
agents in the case, SA Helen Sherry and SA Stewart Wilson, refused to
talk to defense counsel except under very specific and bizarre
conditions. SA Wilson refused to answer any of Professor Turley's
questions. He said he would only answer questions from me. This attitude
was consistent with his earlier statements to CTR1 King when he asked
for a lawyer that he eats 20 JAG lieutenants for breakfast. Moreover,
the agents refused to talk with defense counsel outside the presence of
their legal advisor, LT Mindi Seafer. At the time LT Seafer was
uncertain of her own role in the case. She was not sure whether she was
still a prosecutor or an attorney for NCIS agents. The defense was
confident that if nothing else, her interrogation of CTR1 King at the
brig in which he made exculpatory statements made her a witness. The
defense obviously refused to question one witness in the presence of
another and could not interview SA Wilson or SA Sherry.
In sum, the NCIS agents
involved in investigating and formulating this case engaged in a series
of illegal, unconstitutional and unethical practices. Had these
violations been committed by an enlisted service member such as CTR1
King, they would surely face criminal charges. The agents apparently
recognized they did not have a spy but were willing to bend or break
whatever law or regulation got in their way to manufacture a case
against CTR1 King. The scope of fraud, waste and abuse at hands of the
NCIS that is revealed in the short supply of evidence provided to the
defense is staggering. An indepth investigation of the agency and its
practices is necessary to truly gauge the extent of its illegal and
abusive practices. Actions must be taken to ensure this agency acts
consistent with the U.S. Constitution and federal statute passed by
Congress.
III. CONSTITUTIONAL
VIOLATIONS AND ABUSES BY NAVY PROSECUTORS
Unfortunately, the
constitutional violations and abuses did not stop when NCIS turned the
case over to the prosecution. The government attorneys violated CTR1
King's rights in their investigatory tactics, in failing to take the
steps necessary to conduct a meaningful hearing, in concealing
exculpatory evidence from defense counsel, and in making false
statements to military appellate courts, opposing counsel and the
investigating officer. Professor Turley will address many of the issues
related to the actions of the prosecution in this case. I will limit my
discussion to the constitutional violations and abuses of authority
revealed during the course of the proceedings. These violations fall
into five areas: 1) violation of 6th Amendment rights to counsel; 2)
concealment of evidence; 3) false statements to courts and opposing
counsel; 4) tactics resulting in the denial of the right to a speedy
trial for CTR1 King; and 5) violations of national security law and
regulations.
As established above, CTR1
King unequivocally requested counsel. Any further interrogation with
CTR1 King's lawyer present, whether it was later the same day or weeks
later, was unconstitutional. This is a simple, bright line principle of
law that every practitioner of criminal law should know. The two Navy
attorneys assigned to prosecute the case. CDR Jowers and LT Seafer,
elected to interrogate CTR1 King themselves despite 26 days of
interrogations by trained NCIS investigators.8
In the company of an NCIS agent Rogers, CDR Jowers and LT Seafer
interrogated CTR1 King regarding the alleged offenses and his
confessions. This interrogation violated Edwards v. Arizona, and was
unconstitutional as a matter of law.
8
It is difficult to imagine why these two officers felt the need to
take this extraordinary step. No matter what CTR1 King said at the
interrogation it would probably require the two prosecutors to be
witnesses at any subsequent trial, which would disqualify them from
acting as prosecutors. If CTR1 King had made incriminating statements
they would be called to testify regarding that statement. On the other
hand, if, as actually happened, he made exculpatory statements, they
would be called by the defense to testify to those statements.
The convening authority also
violated CTR1 King's right to counsel by imposing a monitoring agent
over defense communications. This agent was to monitor all
communications between individuals with different clearance levels.
Because we all had different clearances at the time, this meant the
monitoring agent would monitor communications among counsel and between
CTR1 King and his attorneys. The convening authority stated that the
purpose of this requirement was to insure that no classified information
would be revealed to unauthorized persons. However, the Court of Appeals
for the Armed Forces found that this restriction was not the least
restrictive means available for protecting classified information and
forbade the government from proceeding with this barrier in place. The
court found that tasking a government agent with reporting the contents
of attorney-client discussions back to the convening authority was
intolerable under the Constitution. The government then spent months
obtaining security clearances for defense counsel instead of removing
the monitoring requirement.
Once LT Freedus, Prof.
Turley and I all had the same clearance levels, the convening authority
removed the requirment without explanation. Any additional uncleared
counsel or experts added to the defense team would be able to
communicate freely without a monitoring agent. This complete reversal in
position demonstrated that the months of litigation surrounding the
monitoring agent issue were a complete waste of time and that the
government was not trying to protect information as previously argued.
Finally, it is worth noting that the agent the government selected to
monitor the defense conversations was a material witness to some of the
underlying events at issue and would have a personal interest in the
outcome of the case.
The weakness of the
government's case is demonstrated not only by the lack of corroboration
of CTR1 King's statement, but also by the existence of strong evidence
indicating he did not commit espionage. Despite the existence of this
evidence, the government pursued its case in the apparent hope that the
defense would not find it. The prosecution in this case repeatedly
failed in its affirmative duty to provide the defense with the
exculpatory evidence in its possession. The Supreme Court imposes the
duty on all prosecutors to immediately turn over all evidence that tends
to negate the guilt of the accused as soon as that evidence comes into
their possession. No request or demand for production is required by the
defense. Brady v. Maryland, 373 U.S. 83 (1963); United States v. Bhutani,
175 F.3d 572, 576 (7th Cir. 1999). CDR Jowers and LT Seafer not only
failed to provide the evidence of their own accord, but also failed to
provide, or denied the existence of, exculpatory evidence when
specifically asked for it.
The first such example of
the failure to provide this evidence to the defense came from the
interrogation between CDR Jowers, SA Rogers, LT Seafer and CTR1 King. SA
Rogers confirms that CTR1 King made exculpatory statements at that
session. CTR1 King apparently told the prosecutors that he could not
remember committing the acts to which he had confessed and that he did
not know whether it was reality or fantasy. Such denials following so
closely after a signed confession and made to the first non-NCIS
personnel he had spoken to in weeks is highly exculpatory. CDR Jowers
and LT Seafer had an affirmative duty to immediately provide that
information to defense counsel. SA Rogers told defense counsel of the
exculpatory statements when interviewed weeks later, but when the
investigating officer asked CDR Jowers about CTR1 King's statements, she
professed an inability to remember them. Later still, CDR Jowers relayed
that LT Seafer told her she also could not remember the statements in
question.
On two other occasions, the
government failed to provide similarly exculpatory and contemporaneous
statements of CTR1 King. One is a video tape in which CTR1 King is
asking an NCIS psychologist for truth serum or hypnosis to determine
whether or not he committed the acts to which he confessed but, in
actuality, had no memory of committing. The other is a series of audio
tapes of the first of the polygraph examinations and interrogations of
CTR1 King by SA Hyter. These tapes demonstrate that CTR1 King was simply
telling the agents what he thought they wanted to hear so the
interrogations would stop. LT Freedus discusses his discovery of this
evidence in greater detail, but the obligation to provide the
information to defense existed as soon as the government became aware of
these items: in other words, as soon as the tapes were provided to the
prosecution in December of 1999. When we learned of the tapes'
existence, we immediately demanded production of the tapes in a form
presentable to the investigating officer and at a public hearing. We did
not receive them until February 9, 2001. We repeatedly highlighted the
exculpatory nature of this evidence to the investigating officer and
within a month he recommended dismissal of all charges.
The prosecutor and Force
Judge Advocate (FJA) for the convening authority, CDR Mark Newcomb,
repeatedly made false statements to courts, defense counsel and the
investigating officer. The false statements undermined the justice
process and caused unnecessary delay. There are far too many false
statements to list them all from memory. I have documented all such
statements in my classified notes and will provide them in detail once
the defense is again provided access to our notes. Many of the
statements and the supporting evidence will appear clearly in the record
of the Article 32 proceedings. However, some examples of the false
statements serve to illustrate how these tactics prejudiced CTR1 King
and ultimately contributed to the dismissal of charges in this case.
First, both CDR Newcomb and
CDR Jowers claimed in August of 1999 that the defense never requested a
classification review of the evidence in this case. CDR Jowers made this
statement orally to both LT Freedus and me, while CDR Newcomb made this
claim in writing and refused to withdraw it even when it was submitted
to the military appellate courts. The assertions by both were baffling
as the defense had no less than 22 documented requests for
declassification or reclassification of the overclassified evidence.9
In fact, CDR Jowers acknowledged these requests in an affidavit she
submitted to the Court of Appeals for the Armed Forces. She also stated
as early as January 2000 that she had requested that the information be
declassified. Later testimony by security experts established that no
such request or effort was made to reclassify the documents in the case
until the Fall of 2000, a year after CTR1 King was taken into custody.
10
9
As Professor Turley discusses in his testimony, it is irrelevant
whether or not the defense made such a request. Before the government
could proceed with its case and the presentation of evidence it would
have to make sure all the material was properly classified so all
parties could know what could be discussed in open session and what
would have to be kept in closed session. Even after 520 days the
government never completed this process and was still unprepared to go
forward with its case on the day charges were dismissed.
10
This was part of a larger pattern in which CDR Jowers failed to act
with due diligence in executing her duties as prosecutor in this case.
She not only failed to ensure all the evidence in the case was
properly classified prior to the commencement of hearings, she also
failed to examine the evidence in her possession. She failed to review
crucial evidence prior to launching an espionage case and informing
NCIS that she would be able to prosecute CTR1 King. In an exchange
recorded as part of the Article 32 hearing, CDR Jowers states that she
had "never even seen" the log that the government would later claim
served as the sole piece of corroborating evidence to support CTR1
King's confession. This exchange took place approximately one year
into CTR1 King's confinement. Thus, CDR Jowers pursued a potentially
capital case without any awareness of a single piece of corroborating
evidence to support CTR1 King's confession. It is worth noting that
the investigating officer found the log to be insufficient to meet
even the slight level of corroboration needed to consider a confession
as evidence.
Second, CDR Jowers responded
to defense requests for potentially exculpatory evidence by stating that
the evidence did not exist. On October 11, 2000, LT Freedus and I
submitted a classified production request asking for, among other
things, a copy of any risk assessments in the case. On November 1, 2001,
CDR Jowers responded that no risk assessment had been done. Shortly
thereafter, the security officer assigned to assist CDR Jowers in the
preparation of the case was called as a witness to discuss his marking
of classified documents in the case. He relayed that he had performed a
risk assessment as early as December 1999 or January 2000. CDR Jowers
was not at all surprised by this testimony, and before the defense had a
chance to raise the issue with the investigating officer, indicated that
she knew the defense would complain about her prior written response
that no risk assessment had been done. The investigating officer then
ordered CDR Jowers to produce any and all risk assessments for review
and possible use by the defense, a process that certainly would have
caused additional delay had the charges not been dismissed before she
complied with the order.
CDR Jowers' security officer
testified because CDR Jowers gave false information to the investigating
officer regarding the role performed by the security officers in the
classification of evidence. CDR Jowers chose to use the prosecution
security officer as well as the two security officers assigned to the
investigating officer to review and mark the classification level of the
documents in the case. This tactic essentially changed these individuals
from neutral officers assigned to help with physical security into
witnesses. CDR Jowers told the investigating officer that these security
officers had merely placed the classification markings on the documents
under the direction of someone else, and had not made any independent
judgments as to the proper level of classification. In essence, they had
acted as nothing more than human pencils. Because it would be improper
for witnesses to hear the testimony of other witnesses, the
investigating officer agreed to let the defense question the security
officers to determine the true scope of their involvement in
classification before calling any additional witnesses. As soon as these
individuals took the stand, they immediately contradicted CDR Jowers and
stated that they personally determined the level of classification of
documents or provided their opinions to others regarding the appropriate
classification. The process of examining these security officers wasted
a day of hearings that could have been saved if CDR Jowers had
accurately conveyed the scope of their participation in the
classification process. In addition, more time was lost when the
convening authority had to find a replacement security officer to serve
as security assistant to the investigating officer.
These false statements and
others demonstrated the lack of a good faith effort to pursue this case
with any kind of due diligence. Months of CTR1 King's life were wasted
as the courts, the investigating officer, and the defense had to debunk
the false statements and create mechanisms to mitigate the damage
already done.
Many of the actions
discussed above had the consequence of delaying the case to the point
where prosecution became a legal impossibility under the Speedy Trial
protections of the Uniform Code of Military Justice, the Constitution
and the Rules for Court-Martial. The government's imposition of
constitutional barriers to representation and a public trial combined
with the inability to proceed in an orderly or coherent manner led to
inexcusable delays. However, the convening authority and his FJA engaged
in remarkable abuses of discretion and actually excused the prosecution
of responsibility for delays that kept CTR1 King in jail for more than
15 months without a formal charge and denied CTR1 King of his right to a
speedy trial.
Regardless of the individual
acts of the government that lead to almost a year of delay before the
first hearing commenced, the government was completely unprepared to go
forward with its case until January 2001. This was the date of the final
classification review, a necessary prerequisite to the commencement of
meaningful proceedings. Taking more than a year to perform an adequate
classification review of a relatively small number of documents
demonstrates the prosecution's complete lack of due diligence in
pursuing this case.
The convening authority
essentially placed the burden of this lack of diligence on CTR1 King.
Under Rule for Court-Martial 707, the government has 120 days to bring a
person held in pre-trial confinement to trial (i.e., arraignment).
However, the convening authority can exclude time from the government's
accountability under the 120-day clock for such things as defense
continuance requests. In essence, the convening authority can allocate
blame for delay to either the government or the defense. The convening
authority in this case encouraged CDR Jowers lack of diligence by
excluding periods of delay no matter how outrageous the request. He
excluded periods in which the prosecutor was simply unavailable for
unexplained reasons, or when she was unable to find a Sensitive
Compartmentalized Information Facility (SCIF) in which to hold the
hearing. He excluded delays despite vociferous defense objections and
requests to go forward immediately. He excluded delays to allow the
government time to gather evidence for the defense but then refused to
grant the defense time to review the evidence.
The government's failure to
act with due diligence to bring this case to trial deprived CTR1 King of
his statutory and constitutional rights to a speedy trial. The defense
was confident that these failures ultimately would have prevented the
case from ever being prosecuted. Clearly the convening authority
recognized this situation as well. He tried to salvage what was left of
the government's speedy trial case by excluding delay in an artificial
and prejudicial manner.
In its blind pursuit of
prosecuting this case, the government representatives tossed aside
national security law and regulations. At the same time that they were
prosecuting CTR1 King for violations of national security regulations,
the prosecutor and her expert witnesses were committing far more serious
violations on a daily basis. These violations are clearly laid out in
Professor Turley's prior correspondence with Chairman Shelby and CIA
Director George Tenet. Additionally, the complete details of the
violations are contained in my classified notes and in the recordings of
the Article 32 proceedings. However, I will present an outline of some
of the more salient violations that took place during the proceedings.
CDR Jowers consistently
resisted defense counsel's objections to improper security procedures or
attempts to identify security violations. She consistently argued that
all such violations could be addressed at some unspecified time in the
future in some forum other than the Article 32. She even refused the
defense request to provide evidence of the clearance levels of all
witnesses, spectators, and participants until ordered to do so. The
controlling national security regulations do not permit TS/SCI clearance
holders to resist and complain about another clearance holder raising
security violations. These violations should always be raised and dealt
with immediately.
The prosecution adopted a
similarly laissez-faire attitude toward security procedures as had NCIS.
CDR Jowers and LT Seafer both personally overclassified evidence despite
the fact that they did not have the experience or authority to do so.
CDR Jowers discussed TS/SCI information with LTJG Lewis even though LTJG
Lewis did not have any type of security clearance whatsoever. CDR Jowers
even brought LTJG Lewis into a SCIF to testify without telling the
investigating officer or opposing counsel that LTJG Lewis did not have a
clearance and that we should cover all classified information. CDR
Jowers failed to ensure that documents were properly marked before
distributing them. In one instance she placed a signed statement of LTJG
Lewis into LT Freedus's inbox in the public area of the NLSO defense
wing. This area is freely accessible to attorneys, staff and even
clients. Months later and without warning or explanation, the Navy
decided that this statement was Secret.
Perhaps the most troubling
aspect of these national security violations is the refusal of the
prosecution, the convening authority, or even program officials to act
to cure confirmed violations. Government security experts swore under
oath that they had committed security violations. One very senior
program official, Ms. Mary-Rose McCaffrey, admitted that she lied under
oath and that she was personally responsible for almost a dozen security
violations. She confirmed that the violations were at least sufficient
to warrant a review of her clearance. To my knowledge, CDR Jowers and
the convening authority have done nothing to report these and other
admitted violations. As representative of the U.S. government they both
have a responsibility to report and ensure that these issues are
investigated. Instead, the defense counsel must push for investigation
while the prosecution and convening authority apparently hope the whole
case will go away.
III. CONCLUSION
The government's attempt to
prosecute CTR1 Daniel King was a desperate attempt to manufacture a spy
case where there was none. The NCIS took a person who had a very common
indeterminate result on a polygraph examination and, through weeks of
threats, sleep deprivation, and denials of constitutional rights molded
him into someone they could coerce into signing a false confession. In
order to do so, NCIS abandoned all semblance of a professional
investigatory agency and violated the Constitution and law. They lied,
they attempted to intimidate children, and they showed a blatant
disregard for controlling national security law. The agents were
undeterred by the evidence indicating that CTR1 King did not commit
espionage. This was probably the biggest potential case of their
careers, and they were determined to have a spy.
This mindset continued with
the prosecution. CTR1 King's constitutional rights as well as the
national security regulations he was charged with violating fell by the
wayside as prosecutors sought every possible avenue toward conviction.
The government actively prevented the defense from obtaining evidence
tending to demonstrate CTR1 King's innocence and did not even review the
evidence they would later claim established his guilt. This was the
blind pursuit of a prosecution at all costs.
That such abuses were
allowed to persist for 16 months is troubling. Professor Turley, LT
Freedus, and I wrote dozens upon dozens of letters objecting to the
procedures used by the Navy in this case. We made our objects to the
convening authority, to the prosecution, to the investigating officer,
to the Director of Naval Intelligence, to the Director of Central
Intelligence, to the Navy Inspector General, to the Judge Advocate
General, to members of Congress, and to this body. Only this body seemed
to care that the Navy was engaged in a daily practice of violating the
law and the Constitution is was designed to protect. Action must be
taken to prevent similar abuses from taking place in the future.
I would be happy to answer
any questions that the Committee may have regarding my testimony.