PREPARED STATEMENT OF
MATTHEW SIDNEY FREEDUS
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 Matthew Freedus. I currently represent Petty
Officer Daniel M. King and served as detailed military defense counsel
during his prosecution for alleged espionage. I am currently serving
active duty in the Judge Advocate General's Corps, United States Naval
Reserve. 1
1
I graduated with honors and received a Bachelor of Arts in political
science from Washington University, St. Louis, Missouri in 1993. I
graduated with honors from Albany Law School of Union University in
1997. As a member of the Albany Law Review, I published an article in
the area of constitutional law. See A Cause of Action for Damages
Under the State Constitution: Brown v. State of New York, 60 ALB. L.
REV. 1915 (1997). I have been a member of the Bar of the State of New
York since 1998. I was commissioned in the Judge Advocate General's
Corps, United States Naval Reserve in May 1997. I started working at
the Naval Legal Service Office North Central, Washington, D.C. in
April 1998. After practicing civil law for the first nine months of my
career, I started working as a criminal defense attorney. When I was
assigned to this case in November 1999, along with my co-counsel LT
Robert Bailey, I had been working as a criminal defense attorney for
roughly ten months. With less than a year of criminal justice
experience, I was the most senior defense attorney in the office.
The case of United States v. CTR1 Daniel
M. King has become a national disgrace and has caused considerable
controversy in the media.2 It has been
dubbed the next Wen Ho Lee case3 and has
been cited as an example of how not to prosecute a spy case.4
After holding CTR1 King in pretrial confinement for 520 days on
suspicions of espionage and mishandling classified information, the
military judge presiding over the pretrial investigation found that the
Navy had insufficient evidence to satisfy even a reasonable belief that
an offense was committed and recommended the dismissal of all charges.
Within hours of this recommendation, the Navy dropped the charges and
let CTR1 King go free. This case has left the public questioning how the
Navy can imprison someone for 520 days without a formal charge, let
alone a trial. Even after Wen Ho Lee plead guilty to mishandling
classified information, the federal judge presiding over his case issued
a formal apology for the government's false statements and illegal
pretrial confinement. In stark contrast, the Navy has been unapologetic
and no government officials have been held accountable for this colossal
miscarriage of justice. Instead, just twenty days after CTR1 King was
released from the brig, the Navy congratulated the prosecutor in this
case and awarded her the prestigious Meritorious Service Medal.5
2
See e.g., Jim Oliphant, How Not to Prosecute a Spy, Part 2, Legal
Times, December 11, 2000 at 3; Craig Timberg, Court Rules Spy Hearing
Must Begin Again Publicly, The Washington Post, December 9, 2000, at
B02, Laura Sullivan, Military Appeals Court Orders Navy to Restart
Spying Trial of Petty Officer, The Baltimore Sun, at 4A; Matthew
Barakat, Navy Struggles with Spy Case, Associated Press, December 9,
2000; David Rovella, The Next Wen Ho Lee Case, National Law Journal,
October 30, 2000, at A4; Matthew Barakat, Espionage Case Proceeds at
Snail's Pace, Dayton Daily News, October 28, 2000, at 6B; Laura
Sullivan, Government Gaffes Prompt Third Delay of Navy Spy Case
Against Ex-NSA Worker Cryptologist, The Baltimore Sun, October 6,
2000, at 13A; Sabrina Eaton, Dispute Over Security Lapse Delays Elyria
Native's Spy Case, The Plain Dealer, October 6, 2000, at 17A; David
Rovella, Defense in Spy Case Cries Foul, The National Law Journal,
August 21, 2000, at A11; Jim Oliphant, Accused Spy Left Out in the
Cold, Legal Times, March 20, 2000, at 1; David Rovella, Accused Spy
Wants Out, The National Law Journal, January 8, 2001, A7; David
Rovella, Spy Case is Sunk, The National Law Journal, March 26, 2001,
A22; Lionel Van Deerlin, Is the Navy Violating the Rights it Swears to
Protect, The San Diego Union-Tribune, March 28, 2001, at B7; Barbara
Bradley, Navy Petty Officer Held For 500 Days on Suspicion of Spying
for Russia Finally Released Without Being Charged, National Public
Radio, March 28, 2001; Vernon Loeb and Walter Pincus, Pentagon Probes
Spy Case Navy Dropped Against Sailor, The Washington Post, March 29,
2001, A04.
3
David Rovella, The Next Wen Ho Lee case, The National Law Journal,
Oct. 30, 2000.
4
Jim Oliphant, How Not to Prosecute a Spy, Part 2, Legal Times,
December 11, 2000 at 3.
5
It is perplexing that, on one hand, the military appellate court has
characterized CDR Jowers as relatively inexperienced and the media
portrayed her as totally incompetent, while on the other hand the
President of the United States and the Chief of Naval Operations found
her performance to be worthy of such a distinguished award.
After reviewing all the evidence in this
case, it is absolutely clear that there was never any credible evidence
of espionage. The sole basis for the charge was a coerced confession
signed at 3:30 in the morning after a nineteen-hour interrogation.6
When he signed the statement, CTR1 King had been seriously deprived of
sleep, denied several requests for counsel, and interrogated
relentlessly over the course of seven days. Simply put, he was mentally
and physically exhausted and would have signed anything that the agents
put in front of him.
6
In the two days proceedings this signed statement, CTR1 King was
interrogated for 30 out of 39 hours.
After several more weeks of
interrogations, the Navy placed CTR1 King in jail and kept him there for
more than 500 days, based solely on a coerced and uncorroborated
confession. The Navy apparently expected that a lengthy pretrial
incarceration would demoralize CTR1 King and induce him to plead guilty
to anything in exchange for his freedom. Just weeks after the defense
discovered the highly exculpatory tapes, the Navy approached the defense
with several offers to settle this case. CTR1 King rejected these offers
and the Navy simply dropped the charges.
This congressional inquiry is a necessary
step towards revealing the incredible abuses committed by government
officials in this case. To ensure a complete and thorough review, the
defense urges this Committee to demand a transcription of the Article 32
proceedings in this case.7 This record
documents a disturbing pattern of unethical, dilatory and
unconstitutional practices by the government. In addition, this record
reveals multiple violations of national security by government witnesses
and the prosecution. Several government witnesses admitted under oath to
violating national security rules and regulations and to knowing of
numerous violations by others involved in the prosecution of this case.
The statements of my co-counsel, Professor Jonathan Turley and LT Robert
Bailey explain these violations in great detail. I fully concur with
their respective testimonies.
7
In most courts-martial cases, the tapes of the Article 32
investigations are not transcribed.
Focusing on the weight and credibility of
the evidence in this case, my testimony is categorized into four main
parts. Part I explains the purpose, substance and findings of the
Article 32 investigation in this case. In essence, the Article 32
investigation is required by federal statute and it is designed to avoid
trials on baseless charges. At this investigation, the government has
the burden to present evidence that establishes a reasonable belief or
probable cause that the charged offenses were committed. It is well
settled that this standard of proof represents a very minimal burden for
the government. In this case, however, the military judge who has
overseen the Article 32 investigation and has reviewed the government's
evidence, concluded that this evidence was so scanty that it barely, if
at all, satisfied this minimal burden. As a result, the military judge
recommended the dismissal of all charges in this case and the convening
authority immediately followed this recommendation and released CTR1
King from jail.
Part II of my testimony examines the
evidence proffered by the government to support its espionage
allegation. The government's sole evidence in support of this charge was
a coerced and uncorroborated confession. In his recommendation to
dismiss the charges, the military judge explained that the defense had a
legitimate claim that CTR1 King's confession was involuntary and
coerced. This section details the nature and circumstances surrounding
CTR1 King's so-called confession that led the military judge to reach
this conclusion. This section discusses the length and frequency of the
interrogations, the treatment of CTR1 King during his rotation from safe
house to safe house, and the coercive methods and tactics used by the
interrogators to secure a false confession. In addition, this section
details the repeated declarations of innocence that CTR1 King made
throughout his 29-day custodial interrogation.
Part III of my testimony examines the
lack of corroboration for the government's so-called confession. A
fundamental tenet of our Constitution is that all accused are innocent
until proven guilty and the government bears the exclusive burden to
prove guilt beyond a reasonable doubt. The military judge reviewed the
evidence in this case and found that the government hardly satisfied a
probable cause standard, which is by all accounts a minimal burden.
Despite an astronomical expenditure of resources and a comprehensive
investigation, the Navy could not find any evidence to corroborate the
central facts of the espionage charge. Literally dozens of agents from
several different law enforcement organizations were sent across the
globe to look for evidence of espionage. These agents conducted hundreds
of interviews, seized and searched every personal possession of CTR1
King, searched every conceivable database of information and found
nothing to support this charge. This case simply has none of the
traditional indicators of a genuine spy. CTR1 King had no unauthorized
travel, no contact with foreign nationals, and no unexplained wealth or
income. To the contrary, the Navy's investigation actually proved the
impossibility of several facts contained within his statements. This
section examines the categorical failure by the government to
corroborate CTR1 King's statements.
Several issues concerning the lack of
corroboration involve classified information. As the Navy, however, has
denied access to our classified materials, we were unable to prepare
such a report for this hearing. As such, we respectfully request an
opportunity to present a classified report to the Committee at a later
date.
Part IV discusses the highly exculpatory8
evidence in this case, most of which the government concealed from the
defense. Although CTR1 King was not required to prove his innocence,
powerful evidence was revealed during the investigation that
demonstrates he never committed espionage. This section presents
unclassified statements extracted from the audiocassette tapes of some
of CTR1 King's polygraph examinations wherein he is coerced into
confessing to his fantasies as reality. He is heard telling agents he is
only saying what they want to hear. In addition, this section discusses
several crucial pieces of evidence establishing that CTR1 King did not
and indeed could not have committed the acts that he confessed to in the
coerced statement.
8
Exculpatory evidence is that which tends to clear the defendant from
alleged guilt. BLACK'S LAW DICTIONARY (6th ed.)
I. THE ARTICLE 32 INVESTIGATION
Before a case can be sent to trial by
general courts-martial, an investigation of the charges must be
conducted under Article 32 of the Uniform Code of Military Justice. This
investigation is the military's counterpart to a grand jury proceeding.
The Article 32 investigation has traditionally been accorded special
status in military jurisprudence. It is an important statutory right
afforded to military personnel, an important defense discovery tool, and
a bulwark against baseless charges.9 The
Uniform Code of Military Justice recognizes the importance of this
hearing by granting the defendant the right to be represented by counsel
and the right to cross-examine the witnesses against him. Critical to
the proper functioning of the Article 32 investigation is effective
representation of the defendant.10
9
See United States v. Samuels, 27 C.M.R. 280, 10 U.S.C.M.A. 206 (1959);
Talbot v. Toth, 215 F.2d 22 (D.C. Cir. 1954).
10
See U.S. v. Tebsherany, 32 M.J. 351 (C.M.A. 1991) (stating that "[a]
component of effective representation of an accused at the pretrial
stage is preparation for an Article 32 investigation) (citing United
States v. Worden, 17 U.S.C.M.A. 486, 38 C.M.R. 284 (1968). If the
government either interferes with discovery or acts in bad faith to
preclude defense counsel's preparation for an Article 32
investigation, an accused is deprived of his right to effective
representation. See id. at 354.
In order to justify sending a charge to
trial, the government must present evidence to satisfy a reasonable
belief standard that the accused committed the offenses alleged.11
This standard of proof is analogous to what is commonly referred to as a
probable cause standard. At the conclusion of the Article 32
investigation, a legal opinion must be given to the Convening Authority
as to the appropriate disposition of the charges. In this case, CDR
James Winthrop, the military judge, acting as the investigating officer
for the Article 32 proceedings, found that the evidence in this case
fell short of the probable cause standard, let alone the beyond a
reasonable doubt burden necessary for a conviction. Judge Winthrop
presided over this investigation for the past year and reviewed the
evidence in this case and heard the testimony of the government
witnesses, to include highly exculpatory evidence that is currently
classified. The Navy has confirmed in writing that no corroborating
evidence exists in the case that has not already been presented to the
defense and the military judge. Following this comprehensive review, the
military judge recommended that the charges be dismissed because of the
lack of corroborating evidence to support a probable cause finding and
the unreliability of CTR1 King's signed statement.
11
See Rule 405(j)(2)(H), Rules for Courts-Martial, Manual for
Courts-Martial, (2000 ed.)
II. LACK OF EVIDENCE
According to the military judge, the
government lacked any strong evidence to support the espionage charge.
In fact, the government's only evidence of espionage was a coerced
confession that followed seven days of interrogation, with the last
interrogation session lasting 19 hours. The military judge found that
the defense had a valid claim that CTR1 King's statements were
involuntary due to coercion.
There are several facts that demonstrate
excessive coercion in this case. First, the length and frequency of the
custodial interrogations alone constitute coercion. The government
interrogated King for 29 straight days, with many of the interrogation
sessions lasting between 12 and 19 hours at a stretch. The lengths of
these interrogation sessions are reflected in the NCIS interrogation
logs. It is disturbing to note that the government never provided these
logs to the defense. In fact, the defense first received of a copy of
these interrogation logs from CBS News after the charges had been
dismissed.
Second, CTR1 King was held in custody and
under constant surveillance for 26 days. It is axiomatic that custodial
interrogations are inherently coercive in nature. CTR1 King was rotated
between three different safe houses and was guarded around the clock for
26 days. The NCIS agents guarding him during this period were armed and
one agent even told King that he would be shot if he tried to run.
Third, the agents deliberately deprived
CTR1 King of sleep. At the safe houses, the agents played the television
and made the phone ring at all hours of the night. In addition, CTR1
King was required to keep his bedroom door open and the lights on. After
little or no sleep at all, CTR1 King was dragged back to the
interrogation room time and again, for twelve, seventeen or nineteen
hours at a stretch.
Fourth, CTR1 King's so-called confession
was nothing more than fantasies that the agents forced him to write out
and sign as fact. He repeatedly insisted that his statements were
fantasies or dreams but that these thoughts did not reflect reality.
Nevertheless the agents pressured him to discuss and write out his
fantasies about committing espionage. When his fantasies were not
detailed enough, the agents asked him to fill in the holes with
hypothetical examples of espionage. CTR1 King repeatedly stated that he
never acted on these fantasies and never committed espionage. He said
that he was "just making stuff up to please you." After a nineteen hour
interrogation session, the agents insisted that his fantasies must be
real and forced him to sign statements to that effect. Based on these
facts, the military judge concluded that the government's statement
would not likely be admissible at trial due to the coercion used by the
agents to obtain these signed statements and the lack of corroborating
evidence.
Noting the extraordinary length of the
custodial interrogations and CTR1 King's repeated declarations of
innocence, the military judge found that the defense had a legitimate
claim that CTR1 King's confession was involuntary and coerced. Moreover,
the military judge found that "the investigation in this case has
apparently not revealed any direct evidence to corroborate the accused's
confession."12 While the judge noted that
even a "slight" amount of corroborating evidence is legally sufficient
to proceed to a court-martial, he stated "the evidence I am aware of
barely, if at all, reaches that threshold."13
When a confession has been coerced, it stands to reason that there will
be no evidence to corroborate that confession.
12
Written recommendation of military judge, CDR James Winthrop, JAGC,
USN, to dismiss all charges dated March 9, 2001.
13
Id.
A. 29 days of Interrogations and Sleep
Deprivation
This ordeal started when Daniel King
registered inconclusive on a routine polygraph examination. He was then
subjected to coercion, manipulation and constitutional violations at the
hands of government officials that simply shock the conscience. This
country has not seen the type of Draconian interrogation tactics that
were used in this case since the 1930's. It is virtually unheard of for
the government to hold someone in custody and interrogate him for 29
straight days and then throw him in jail for 520 days based on nothing
more than a coerced and uncorroborated confession. The government's own
records demonstrate that King was interrogated incessantly over the
course of 29 days. The Supreme Court of the United States has ruled that
even a confession gleaned after 16 days of interviews, with only an hour
or less a day of interrogation, was involuntary.14
In addition, he was systematically denied rest throughout this entire
period. While he was moved between three different safe houses, he was
guarded around the clock. Several agents rotated shifts in order to
monitor CTR1 King. He was required to sleep with the lights on, and the
agents played the television and the phone rang at all hours of the
night. As a result, King was in a constant state of mental and emotional
exhaustion.
14
LT Robert Bailey's
written testimony explains the law governing the issue of
involuntary confessions.
Based on the how the statements were
obtained, it is clear that CTR1 King was under a tremendous amount of
duress and that his statements were involuntary and false. This section
outlines the 29 days of interrogations and reveals how a routine
polygraph examination mutated into a full-blown spy hunt. The defense
was able to get a flavor for the coercive nature of the tactics employed
by listening to the tapes of these interrogations. The government,
however, withheld these tapes from the defense for more than a year into
CTR1 King's confinement. A detailed discussion of these tapes and the
associated statements illustrates NCIS's attempt to create a spy case
where none existed. The tapes cover the period of September 29 until
October 2, 1999.
On September 29, 1999, CTR1 King
registered a no opinion on a routine polygraph test. Special Agent
Robert Hyter from the Naval Criminal Investigative Service conducted
this examination. At the time, CTR1 King was taking several different
medications for high blood pressure and weight loss. In response to the
polygraph questions, CTR1 King stated that he never committed espionage
and never acted to harm the United States. SA Hyter's written reports
indicate that her could not render an opinion as to the truthfulness of
King's answers, but he told CTR1 King that the polygraph indicated
deception. The agent then probed CTR1 King's background and personal
life. For more than seven hours, CTR1 King delved into what sounded like
an adversarial meeting with a marriage counselor. He expressed his
perceived shortcomings in his family life and explained the personal
struggles that he was having with his marriage. CTR1 King further
explained that he was battling with bouts of depression as a result of
the separation from his family. SA Hyter manipulated these feelings of
inadequacy and repeatedly attempted to steer the conversation towards
CTR1 King's character for honesty and any possible security violations.
SA Hyter asked CTR1 King whether he blamed the Navy for his personal
problems. In response, CTR1 King occasionally expressed disappointment
and dissatisfaction with the Navy for sending him to Guam and not
promoting him. SA Hyter asked King whether he ever fantasized about
hurting the Navy or committing espionage as a result of these feelings.
CTR1 King admitted that he had occasional fantasies about espionage over
his 20-year career, but stated unequivocally that these were just
fantasies and that he would never do anything to hurt the Navy.
It should be noted that it is very common
for individuals working in the national security field to have fantasies
of committing espionage. In fact, during an interview several months
later, SA Hyter acknowledged that fantasies of espionage were common and
even admitted that he had thoughts of espionage. The government recorded
and made a written transcript of this interview that is currently marked
For Official Use Only (FOUO).
On September 30, 1999, SA Hyter resumed
his interrogation of CTR1 King. He questioned CTR1 King for nearly six
consecutive hours and administered multiple polygraph examinations
throughout the day. The results of these polygraph examinations were
mixed. In the first examination, CTR1 King was asked whether he had any
unauthorized contacts with a representative of foreign government and
whether he had any contacts with a foreign diplomatic establishment. His
answer was "no" to both questions and SA Hyter was unable to render an
opinion as to the truthfulness of his statements, which is a very common
occurrence.
In the second polygraph examination, King
was asked whether he ever met with a representative of foreign
government for espionage purposes and whether he ever had any
communication with a representative of foreign government for espionage
purposes. Again, his answers were "no" to both questions, but it was SA
Hyter's opinion that his responses were deceptive to these questions.
In the third polygraph examination on
this day, he was asked whether he ever provided any classified material
to a representative of a foreign government and whether he was ever
asked to provide any classified material to a representative of a
foreign government. He responded in the negative to both of these
questions, but it was the opinion of SA Hyter that King was being
deceptive on these questions. On the fourth polygraph examination of the
day, CTR1 King was the same relevant questions. Again, CTR1 King
answered no to both questions and SA Hyter reported another "no
opinion."
In between the polygraph examinations SA
Hyter would interrogate CTR1 King and tell him that he must be lying and
that he must have committed or attempted to commit espionage. Any
credible polygrapher would admit that such accusations would distort the
results of a polygraph by artificially raising the level of anxiety of
the subject. SA Hyter pressured CTR1 King for details about the
fantasies, manipulated his feelings of inadequacy in his personal life
and repeatedly questioned his character for truthfulness. This is all
reflected in the tape recordings of these sessions. SA Hyter told CTR1
King that at some point he must have acted on his fantasies and took
steps towards committing espionage. While, CTR1 King admitted to having
a very active imagination and very detailed dreams, he repeatedly stated
that he never did and would never commit espionage. CTR1 King's
fantasies literally sounded like stories from a bad romance novel. One
dream in particular involved CTR1 King selling classified information to
the Russians, moving to the Black Sea, marrying a beautiful Russian
woman, and becoming a well-liked hero. SA Hyter disregarded the
fantastical aspects of these dreams and focused only on the more
plausible parts. SA Hyter pressed him to explain these dreams in
excruciating detail and stressed that some parts of these dreams must be
true. At the end of the day, SA Hyter had CTR1 King sign another
statement acknowledging and explaining these fantasies in some detail,
but again King stated that he absolutely never acted on these fantasies
and never committed espionage.
On October 1, 1999, the third day of
questioning, SA Hyter conducted another series of polygraph
examinations. SA Hyter asked King whether he ever had unauthorized
contact with a foreign national and whether he ever had unauthorized
contact with a foreign diplomatic establishment. King answered no to
both questions. According to SA Hyter, he was unable to register an
opinion on this polygraph. SA Hyter's interrogation logs from the day
reflect that King was interrogated for roughly six hours. On October 2,
1999 SA Hyter administered another polygraph examination. In this exam,
CTR1 King was asked whether he ever offered to provide any classified
information to representative of a foreign government and whether he
ever provided any classified material to representative of foreign
government. His answer to both questions was no. While SA Hyter's report
of this examination reflects that he was unable to render an opinion on
this polygraph, SA Hyter lied to CTR1 King and told him that he failed
this examination. By this point, it is clear from the tape recordings
that SA Hyter was desperate for a confession.
Petty Officer King repeatedly denied any
act of espionage. While these exculpatory statements were recorded on
audiocassette tapes, they were concealed from the defense for 14 months
of CTR1 King's confinement. For example, CTR1 King is heard saying:
"I can say for a one hundred percent
fact that I have never committed espionage or anything like that."
"I might have fantasized about it, but
over the past twenty years I never contacted any foreign national."
In response to a question about
additional details in his fantasies, King is recorded as saying: "I
don't know, I don't know, I don't know (raising his voice and becoming
emotional), I don't know how to tell you this, but I don't know."
"I'm starting to make stuff up to
please you..."
"I don't know what I'm supposed to give
you."
While statements like this can be heard
clearly on the tapes, they were conspicuously absent from any of his
written statements or the NCIS reports of investigation. It should come
as no surprise that the Agents stopped using the recording equipment
after these statements on October 2, 1999. When the defense interviewed
SA Hyter, he informed us that NCIS headquarters initially told him to
record the interrogations, but at some point he was specifically
instructed to stop recording.15 As a
result, we are left speculating as to exactly what happened after
October 2nd. However, several salient facts establish that the coercion
continued.
15
The defense is aware of only two other recordings that were made after
October 2, 1999. On October 19, 1999, the NCIS made a video recording
of CTR1 King's interview with Dr. Michael Gelles, a staff psychologist
with the NCIS. Also, the government recorded an interview of CTR1 King
that took place at the Pentagon on October 25, 1999. In both of these
recordings, King made highly exculpatory statements. In fact, CTR1
King made exculpatory statements on every recording that has been
produced to the defense.
Many of these statements were actually
recorded on audiocassette tapes that the government had in its
possession from the inception of this case but concealed from the
defense. The prosecutor flagrantly violated her independent and
affirmative duty to disclose these tapes. The prosecutor was either
grossly negligent in failing to review the evidence in her possession,
or she committed the most egregious form of prosecutorial misconduct by
deliberately withholding evidence of CTR1 King's innocence.
It is not surprising that the charges
were dismissed just weeks after these tapes were released to the
defense. These tapes reveal that CTR1 King repeatedly and adamantly
professed his innocence before, during, and after his so-called
confessions. These statements, however, were conspicuously absent from
the agents reports of investigation. Had these tapes been properly
released at the outset, CTR1 King would not have suffered such a
tremendous loss of freedom and damage to his reputation.
16
16
CTR1 King spent two Thanksgiving and two Christmas holidays
incarcerated and away from his family. During this incarceration, CTR1
King's mother became terminally ill and wanted to see her son. Despite
her understandable wish to see her son released and cleared of these
accusations, she passed away without ever speaking to her son or
knowing the outcome of this case. The costs of these personal losses
are immeasurable and indelible.
On October 5, 1999, Special Stewart
Wilson joined the investigation and assumed the role as lead case agent.
SA Wilson works in the counterespionage division of the NCIS in
Washington, D.C. and he traveled from Washington, D.C. to Guam to
question King. Shortly after his arrival, King told the agents that he
wanted to speak to a lawyer, which is documented in his statement of
October 6, 1999. At this point, all questioning should have stopped
immediately. The caselaw creates a bright line rule that requires police
to stop questioning on a dime when an accused invokes his right to
counsel. However, after flying to Guam, SA Wilson had no intention of
letting the right to counsel interfere with his interrogations. SA
Wilson disregarded this request and told King that he was not going to
let him speak to an attorney. Experts in the field of national security
have noted that an accused's rights and a potential future prosecution
are sacrificed as secondary considerations by espionage investigators.
17
17
Barbara Bradley, Navy Petty Officer Held For 500 Days on Suspicion of
Spying for Russia Finally Released Without Being Charged, National
Public Radio, March 28, 2001
At that point, SA Wilson and SA Hyter
both interrogated King for more than nineteen hours. This interrogation
session started at 9:00 in the morning on the 5th of October and ended
at 3:30 in the morning the following day. At the end of this marathon,
King signed a false confession where he admitted to sending a disk to
the Russian embassy. Later that evening, King was brought back to the
interrogation room and was interrogated for three more hours.
On October 8, 1999, King made two written
invocations of his right to counsel early in the morning session with SA
Alex Bedoya. In one of these written requests, King refers to his
earlier request for counsel on October 5, 1999. This chronology of
events is alarming. The fact that the agents had CTR1 King sign a waiver
just days after his original request for a lawyer indicates a knowing
violation of his constitutional rights and a subsequent attempt to
cleanse or repair that violation. Only the Supreme Court has made it
perfectly clear that police officers can not repair prior deprivations
of the right to counsel with retroactive waivers. This reference on the
8th to his earlier request for counsel on the 5th is particularly
revealing because there is no corresponding reference in any of the NCIS
reports of investigation from the preceding days. When the defense
interviewed SA Hyter, he said that he could not recall whether King ever
mentioned his desire to speak to an attorney. As a request for counsel
has such significant meaning to police officers and law enforcement
personnel, it defies common sense that SA Hyter would not remember such
a conversation. Moreover, the NCIS records reflect that SA Hyter
participated in the interrogations on the 5th and 6th of October. CTR1
King's requests for counsel were completely ignored and SA Bedoya, SA
Wilson, SA Hyter and SA Sherry continued to interrogate him for 12
hours, from 8:00 a.m. until 8:00 p.m.
This pattern of all day interrogations
and sleep deprivation continued. Agents insisted that CTR1 King confess
to fantasies and yet he continued to deny that the statements were true.
The coercive techniques, sleep deprivation and constant monitoring wore
away at CTR1 King, who could no longer tell the difference between fact
and fantasy. On October 19, 1999, CTR1 King is taken, at his request, to
see NCIS psychologist Michael Gelles. This meeting was recorded. During
a 45-minute videotape of this meeting, CTR1 King is seen telling Dr.
Gelles that he has no memory of any of the espionage activities to which
he had earlier confessed and that he could no longer distinguish fact
from fantasy. King even asked the doctor to give him sodium pentathol or
truth serum. The tape of this meeting, along with the audio taped
interrogations, was also withheld from the defense for 14 months.
On October 25, 1999, King was questioned
at the Pentagon. This interview was recorded and King provided a
detailed synopsis of his entire career. At the end of this tape, CTR1
King is heard yet again contradicting his earlier confession.
Specifically, CTR1 King said apologetically, "I know you don't want to
hear this, but I don't think there ever was a disk," or words to that
effect. Three days later NCIS finally relinquished its custody of CTR1
King and he was placed in the Quantico Base Brig on October 28, 1999.
Three days later, on October 31, 1999,
CDR Jowers, LT Mindi Seafer and SA Kenny Rogers took a trip to Quantico
and interrogated King at the brig. Despite hundreds of pages worth of
information gathered by NCIS, 29 days of continuous interrogation by
teams of trained NCIS agents, and CTR1 King's repeated requests for
counsel, CDR Jowers, LT Seafer and SA Rogers proceeded to question King
regarding the alleged offense.
In order to conduct this interrogation,
CDR Jowers contacted SA Rogers, one of the NCIS agents assigned to the
CTR1 King detail at the Homewood Suites, and asked him to accompany her
to the brig on a Sunday morning. SA Rogers remembers CTR1 King
responding to the interrogations by CDR Jowers and LT Seafer and
refusing to confirm the violations for which he was confined. CTR1 King
stated, as he had on several previous occasions, that he had no memory
of such facts.18 SA Rogers stated that he
did not take notes of the interview, but he does remember these
statements. At the Article 32 proceedings, the defense raised the issue
of the government counsel's failure to provide this exculpatory
information to the defense. Despite the recollections of both CTR1 King
and SA Rogers of the exculpatory statements, CDR Jowers only admitted to
questioning CTR1 King but claimed to have no memory of any exculpatory
statements.19 CDR Jowers promised the
defense that she would check for notes of this meeting, but several
months later she stated that she was unable to locate any such notes.
This is just another alarming example of the exculpatory information
that was withheld from the defense.
18
While SA Rogers refused to be tape recorded, there were five witnesses
to this statement, including Jonathan Turley, LT Robert Bailey, LT
Glen Girding, Billy Cochran and myself. LT Girding took careful notes
during this meeting.
19
This admission can be found on the record of the Article 32
proceedings.
This pattern of coercive and
unconstitutional interrogations leading to admissions that were followed
by denials establish that the government's sole evidence, the
"confession", was wholly unreliable. The NCIS created a textbook
environment for producing a false confession.
III. LACK OF CORROBORATING EVIDENCE
One of the unique and telling aspects of
a coerced confession is its lack of corroboration. That is, when the
government forces someone to confess to a crime that never happened,
this coercion is reflected by the inability of the government to find
evidence to corroborate the essential elements of that crime, i.e. the
act of espionage. That is exactly what happened in this case. The
government coerced a confession from CTR1 King, but then could find
absolutely no evidence to corroborate his statement. This failure,
however, was not for lack of trying. Agents virtually combed the globe
and elicited help from other federal law enforcement agencies, but could
not confirm any of the essential elements of the statement.
It is a well-established principle of law
that, in order to admit a confession into evidence, the government must
corroborate the essential facts of the confession. In other words the
government must produce independent evidence, either direct or
circumstantial, in order to create a sufficient inference that a
confession is true. "The amount of corroboration required is slight
and need only raise an inference of truth concerning the essential facts
admitted in the confession."20 In this
case, the government simply had no direct or circumstantial evidence to
support espionage. 21
20
See United States v. Melvin, 26 M.J. 145 (CMA 1988)(emphasis added).
21
In a letter from CDR Mark Newcomb, Force Judge Advocate, the
government admitted that all the evidence of corroboration had been
provided to the military judge and the defense. Moreover, the
prosecution conceded this point and only proffered one document to
corroborate the confession.
The military judge who presided over this
Article 32 hearing found that "the investigation in this case has
apparently not revealed any direct evidence to corroborate the accused's
confession." The government asserted that the existence of a daily log
was sufficient to corroborate CTR1 King's confession. The military judge
further noted that although a "slight" amount of corroborating evidence
is legally sufficient to proceed to a court-martial, this log "barely,
if at all, reaches that threshold."
This section examines the lack of
corroboration in several different categories. First, there is no
witness to the alleged act of espionage. The government interviewed
hundreds of people from around the world and could not find any witness
who could corroborate any part of the confession. Second, there is no
physical evidence of espionage or any foreign contacts. To the contrary,
the Navy's investigation actually proved the impossibility of several
claims contained within CTR1 King's statements.
A. Interviews and Government Witnesses
The NCIS and other law enforcement
organizations interviewed hundreds of potential witnesses during the
course of this investigation. The government interviewed practically
every friend, family member and co-worker from CTR1 King's entire life.
There is not a single witness to the alleged act of espionage.
Furthermore, CTR1 King's closest friends and co-workers never heard him
talk about espionage and thought it impossible that he could ever commit
such an act.
To the contrary, these interviews
revealed information that actually supports the finding that his
confession was coerced. CTR1 King's close friends and co-workers
described him as very susceptible to pressure. They reported that CTR1
King dislikes confrontation, has a very strong desire to please others,
and has a very low self-esteem. In addition, his friends described him
as having an exceptionally active imagination and a penchant for science
fiction. CTR1 King was even known for discussing his dreams in vivid
detail. It is clear from these interviews that CTR1 King is the type of
person who, after several days of interrogation and intense pressure,
would confess to something that he did not do. Moreover, the statements
that he made contemporaneously with his so-called confessions, such as
"I am just making stuff up to please you," are consistent with his
character and reputation.
B. No Physical Evidence of Espionage
There is absolutely no physical evidence
that CTR1 King ever committed espionage. With CTR1 King's permission and
cooperation, the NCIS agents seized and searched all his worldly
possessions. In a genuine espionage case, one would expect to find some
trace of communications with a foreign national or foreign diplomatic
establishment amongst these possessions and his personal and business
records. For example, one could expect to find a letter, name, address,
phone number, phone record, bank record, email record or some other
indication that there was communication with a foreign national. The
government checked all of these places and came up empty handed. There
was not a shred of evidence to suggest that CTR1 King ever even
communicated with a foreign national.
While the government classified several
of the sources and methods used in this investigation, it should be
noted that the government searched everywhere one might expect to find
evidence of corroboration in this case, but found none. The government
found no independent evidence to suggest that CTR1 King ever called the
Russian Embassy on the telephone, visited the Russian Embassy in person
or mailed anything to the Russian Embassy. Several other issues
concerning the lack of corroboration involve classified information. As
the Navy has denied access to our classified materials, we were unable
to prepare such a report for this hearing. As such, we respectfully
request an opportunity to present a classified report to the Committee
at a later date.
C. Daily Log Offered by Government
Does Not Constitute Corroboration
The sole evidence offered by the
government to corroborate his statements consists of a two-page daily
log that he kept as part of his normal duties. To suggest that this log
constituted corroboration was a laughable proposition. The military
judge examined this log thoroughly and found it to be wholly inadequate
to corroborate the essential elements of the espionage charge. As a
result the military judge concluded that the government's alleged
confession would likely be deemed inadmissible at a trial due to a lack
of corroboration, which is a basis for suppression separate and apart
from coercion. To understand the absurdity of the government's
contention, it may be helpful to consider an analogy. The government
would have you believe that an accused's ability to describe the
interior of his own bank would corroborate his confession that he stole
money from the bank. That is absurd. Corroboration means that there must
be independent evidence that confirms an essential fact of the charge.
In this case, there is nothing about that log that relates to the act of
espionage.
IV. EXCULPATORY EVIDENCE
In addition to the lack of credible
evidence and corroboration, there is highly exculpatory evidence to
demonstrate that CTR1 King never committed espionage. In other words,
there is powerful evidence that tends to show that CTR1 King is innocent
of the charged offense.
A. Tapes of Interrogations Session
Capture Coercion and Recantations
Not only was this case built entirely
upon a coerced and uncorroborated confession, the government withheld
powerful evidence of CTR1 King's innocence. One of the most notorious
moments in this case came when the defense discovered highly exculpatory
evidence that the government had concealed from the defense. Despite
several written demands for the production of our client's statements,
whether written or recorded, the government withheld audio and video
tapes from the defense for more than 14 months of CTR1 King's
confinement. CTR1 King repeatedly professed his innocence throughout the
29 days of interrogation, and many of these statements were captured on
audio and video tape.
I came across these tapes quite by
accident. I was in the NCIS Field Office working on an unrelated case
and supervising the fingerprinting of one of my clients. While there I
asked to look at the evidence log sheet in the evidence locker room. The
agent serving as evidence custodian provided me the log. As I was
looking through the log, the agent who was fingerprinting my client
asked the evidence custodian whether she knew I was a defense attorney.
She said, "no," and was clearly surprised and uncomfortable with me
looking at the log. By that point I had noticed several references to
evidence regarding CTR1 King or, as NCIS called him, Regal Falcon, that
the defense was unaware existed. These included numerous audiocassettes,
microcassettes, 8 mm tape, and video tapes that we had been told did not
exist. SA Hyter told us that he only recorded the first polygraph
session, did not record any interrogations, and stopped recording at the
direction of NCIS headquarters. When I asked the NCIS for access to
these tapes, CDR Jowers specifically instructed the agents to deny my
access to this information.
It is not coincidence the charges were
dismissed just weeks after the tapes were released to the defense. These
tapes reveal that King repeatedly and adamantly professed his innocence
before, during, and after his so-called confessions. These statements,
however, were conspicuously absent from the agents reports of
investigation. Had these tapes been properly released at the outset,
CTR1 King would not have suffered such a tremendous loss of freedom and
damage to his reputation.
B. Interrogation Logs Withheld from
Defense
The NCIS never produced the interrogation
logs to the defense. In fact, despite repeated defense discovery
requests, the NCIS never even acknowledged that such logs existed. The
manner in which the defense ultimately discovered these logs is
downright shocking. The NCIS provided these logs to CBS News apparently
to rebut the defense claims that CTR1 King was interrogated for 29
consecutive days. In speaking to CBS News representatives, the defense
learned that NCIS had provided logs of its interrogations to the media.
Having never seen or heard about these logs, the defense asked CBS News
for a copy. It is simply astonishing that the defense received highly
exculpatory and discoverable evidence from the media, and not from the
NCIS.
These logs corroborate the coercive
nature of the interrogations. The logs reveal that CTR1 King was placed
in a designated room and interrogated for more than 110 hours. These
logs further document that individual interrogation sessions frequently
lasted 12, 15 or 19 hours at a stretch, without taking breaks for food
or use of the bathroom. The audacity of NCIS to withhold evidence that
depicts the extraordinary length and frequency of their interrogations
further underscores the coercive nature of these interrogations.
C. Facts Contained in Statements
Proven to be False by NCIS
During the course of its investigation,
the NCIS attempted to corroborate the details of CTR1 King's statements.
However, instead of corroborating the details, the NCIS actually proved
the falsity or impossibility of several of the essential facts contained
in his confession. This should hardly be surprising considering that the
agents forced CTR1 King to literally spin a tale of espionage. There are
so many illustrations of this point that it would be unmanageable to
list them all here. A few significant examples will serve to illustrate
the point.22
The government alleged that CTR1 King
mailed a disk containing classified information to the Russian embassy.
It is rather self-evident that he would need the mailing address to
accomplish this task. CTR1 King's statement said that he obtained the
address from the website for the Russian Embassy. The NCIS, however,
discovered that no such website existed at the time of the alleged
offense. It would have been impossible for CTR1 King to find the
address, and thereby complete the act of espionage in the manner
described in the confession.
The NCIS agents discovered other evidence
indicating the impossibility for CTR1 King downloading a classified log
to a disk, as the NCIS typed in the October 6th statement. Without going
into classified areas, it is sufficient to note that some evidence
indicated that it was impossible.
As another example, CTR1 King allegedly
stated that he planned to meet a Russian national at a Baskin-Robbins
ice cream parlor at a particular mall in Maryland. CTR1 King has
repeatedly stated that this statement is absolutely false and that he
has never had contact with foreign national. When the NCIS agents
traveled to the mall, it was confirmed that there was no Baskin-Robbins
at this location.
The government has alleged that CTR1 King
admitted to other security violations during the course of his
questioning. Specifically, the government alleged that CTR1 King
admitted to removing a classified document from his workspaces in Guam.
The NCIS, however, obtained a copy of this document from his computer at
work and determined that it was completely unclassified. In fact, his
computer did not have the capability to obtain the type of classified
document he referenced in his statement.
D. False Statements and Violations of
Judicial Process by NCIS
NCIS Director David L. Brant made several
blatantly false statements to the media concerning this case. First, Mr.
Brant reportedly told the press that his agents followed the Department
of Defense guidelines for administering polygraph examinations. Not only
is there considerable historical evidence to demonstrate the falsity of
this statement,23 but the facts of this
case clearly show that NCIS polygraph techniques in this case amounted
to textbook violations of the governing regulations. This is
particularly troubling considering that several Navy officials "close to
this case" have leaked information that CTR1 King repeatedly failed
polygraph tests. In reality, CTR1 King registered inconclusive on most
of the examinations. As for the examinations he failed, the polygrapher
was interrogating him and telling him that he was a spy before
administering the exam, which any credible polygrapher would say
violates the DoD regulations and inevitably causes elevated responses.
The nature of these violations are discussed in greater detail in the
testimony of my counsel LT Robert Bailey.
23
See written testimony
of Professor Jonathan Turley, lead defense counsel, for elaboration on
the documented abuses by NCIS agents.
In another false statement, NCIS Director
Brant reportedly told the media that his agents never interrogated CTR1
King after he was ordered into confinement on October 28, 1999. This
statement is patently false. SA Kenny Rogers admitted to the defense
that he participated in an interrogation of CTR1 King at the Quantico
Base Brig. This interrogation occurred a few days after King was ordered
into confinement. CDR Jowers acknowledged that this meeting took place
and it is reflected in the visitor log-book for the brig.
NCIS Director Brant has demonstrated an
unmistakable willingness to defy of judicial process and the rule of
law. In United States v. SGT Vinh Nguyen, USMC, a recent military
justice case before the Atlantic Judicial Circuit, Mr. Brant was ordered
by the trial judge to produce documents within his possession and
control, as these documents were deemed material to the defense case.24
After Mr. Brant disregarded the first order of the court, the military
judge issued three additional orders directing Mr. Brant to produce the
documents in question. Mr. Brant, however, willfully and blatantly
refused to comply with these orders and withheld the evidence from the
defense, the prosecutor and the court. In response to this repeated and
deliberate defiance of judicial authority, the prosecutor in this case
stated that Mr. Brant had no legal basis for his noncompliance and
recommended that the trial judge hold Mr. Brant in contempt of court.
However, unlike federal or state court judges, military judges do not
have contempt power for violations of court orders. Despite ruling that
the Mr. Brant clearly violated the court's orders and the accused's
Sixth Amendment right to compulsory process, the military judge and the
prosecutor declined to refer this matter to the United States Attorney's
Office for intervention, despite several defense requests. Not only was
it hypocritical and unconstitutional for Mr. Brant to defy the court's
authority, but it was criminal under Article 47 of the Uniform Code of
Military Justice, which makes it a federal crime to refuse to comply
with judicial process.
24
I served as individual military defense counsel in this case. On March
16, 2001, SGT Nguyen was convicted of one specification of
distribution of ecstasy and sentenced to a reduction in grade and
ordered to pay a fine. See United States v. Nguyen, Docket No.
01-8026/NA, Court of Appeals for the Armed Forces (March 2001).
E. COOPERATION BY CTR1 KING
CTR1 King's behavior during the course of
the interrogations is inconsistent with guilt, and is exculpatory in and
of itself. He cooperated and told the NCIS agents every detail about his
life and his career. He even volunteered himself for hypnosis or drugs
therapy to probe further into his memory. These are hardly the actions
of someone who has something to hide. The practices of the NCIS
interrogators had so thoroughly confused CTR1 King that he could no
longer distinguish between dreams and reality. He denied any act of
espionage but through constant interrogation, monitoring, sleep
deprivation and abusive interrogations, the agents had convinced him
that he must have done it because the polygraphs said so.
Once the agents convinced CTR1 King of
this absurdity, they played on the true elements of his character and
fidelity toward the Navy and the United States to convince him to
provide as much detail regarding his background as possible. At a taped
session held on October 25, 1999, in the Pentagon, CTR1 King told NCIS
agents and other officials about every aspect of his career. He relayed
as much information about every program that he could remember being
associated with throughout his career. He told his interrogators that he
wanted them to have this information just in case he committed the acts
he could not remember but NCIS agents insisted were real. He wanted to
make sure that the Navy was aware of this information so they could take
corrective action to prevent further compromise of information or the
endangering of sailors' lives. CTR1 King provided this information
precisely because espionage was inconsistent with his character and he
wanted to guard against the unthinkable. These are not the actions of a
traitor.
F. RECANTATIONS
Throughout his 29 days of custodial
interrogations, CTR1 King repeatedly denied having ever committed
espionage. Many of these powerfully exculpatory statements were captured
on audio and video tape. On these tapes, CTR1 King is heard saying, "I
can tell you for a one hundred percent fact that I never committed
espionage or anything like that." Instead of actually conducting an
independent investigation, the agents pressured King to discuss
fantasies and hypothetical examples of espionage. In response to demands
for the details of his fantasies, CTR1 King is heard saying, in an
exasperated voice, "I don't know, I don't know, I DON'T KNOW. I don't
know how to tell you this, but I just don't know." The interrogators
were undeterred by these emotional outbursts and continued to pressure
CTR1 King to write out his fantasies in painstaking detail, filling in
any factual gaps with his imagination. After several more hours of
pressure, CTR1 King played along and discussed his fantasies, but all
the while he clearly stated, "I am just making this stuff up to please
you." It is not surprising that the agents stopped recording the
interrogations soon after these statements were made and these
statements never appeared in the agent's notes or reports of
investigation. CTR1 King's false confession was made two days later,
after his repeated requests for counsel were denied and after a nineteen
hour interrogation session. It is clear from these tapes that, when the
Navy investigators found no evidence of espionage, they proceeded to
manufacture evidence to justify what can only be described as a colossal
blunder. Not surprisingly, just weeks after the defense discovered this
evidence, the government dropped the charges against King and allowed
him to retire from the Navy with a full pension and benefits. I strongly
urge this Committee to demand the release of these tapes so that the
public can hear how the Navy obtained a false confession in this case.
VI. CONCLUSION
The Navy never had evidence to support
its case against CTR1 King. Its investigators concocted an espionage
case out of indeterminate polygraph results, coercion and the fantasies
of a sleep deprived and threatened highly decorated sailor with 20 years
of honorable and faithful service. The NCIS took every available step to
confirm the confession it coerced out of CTR1 King and failed. To the
contrary, investigating agents found more evidence indicating CTR1 King
did not commit the acts alleged in his statements than they did evidence
to corroborate them.
Rather than admit error, the Navy
deprived one of its sailors of 520 days of his life and engaged in a
pattern of public slander that will haunt him for the rest of his life.
Such practices are an affront to the values every service member swears
to uphold upon entry into the service of their county. The Navy and the
NCIS may not be permitted to continue such practices if the armed
services are to remain a bastion of American ideals and the protector of
our constitutional values and freedoms. Investigation and meaningful
reform is necessary to prevent such abuses from destroying the lives of
other sailors and undermining the concept of a volunteer and
professional armed force.
It is deeply troubling to me that the
Navy has never issued a formal apology to CTR1 King and his family for
this colossal miscarriage of justice and that no government officials
have been held accountable. I would be happy to answer any questions
that the Committee may have regarding my testimony.