By Facsimile Transmission and First
Class Mail
The Honorable Sherrod Brown
2438 Rayburn House Office Building
Washington, DC 20515-3513
Re: United States v. CTR1 Daniel M.
King. USN
Dear Representative Brown:
I am writing to you as counsel to an
Ohio sailor, Petty Officer Daniel King, who was recently released
from confinement after 520 days during an espionage prosecution. The
abuses in this case have received a great deal of attention in the
Ohio press, as well as national media coverage, including an
upcoming segment on CBS 60 Minutes. I will be in Congress in the
next two weeks to discuss this troubling case and to support our
request for a congressional inquiry. King's case is extremely
troubling due not only to the lack of evidence but also the abusive
interrogations conducted over 26 days lasting as long as 19 hours.
We ask only for the truth to be revealed and for an impartial
inquiry by a congressional committee. Your support for such an
inquiry would be extremely influential. We understand that you
cannot reach any conclusion on the merits of these allegations until
all of the facts are established. A congressional inquiry would
create such a record.
On March 9, 2001, the charges against
Petty Officer Daniel King were dismissed by the Navy. This dismissal
followed a written recommendation from the military judge serving as
the investigating officer in the case. The judge found that, even
before the completion of the preliminary Article 32 hearing, the
evidence did not support a formal charge, let alone conviction, for
espionage. The charges in the case were dropped within hours of the
decision.
I am writing to you to seek your support
for a congressional inquiry into the facts and alleged abuses in
this case. With the dismissal of these charges, there is no bar to
direct congressional inquiry into these violations. I also ask for
your intervention to preserve evidence of unlawful conduct,
including serious national security violations, by various officials
in this case. The defense is deeply concerned that evidence and
transcripts could be destroyed or compromised in the coming days.
This evidence includes classified material, notes, physical
evidence, video and audio tapes as well as uncompleted transcripts
of the proceedings. Moreover, it is vital that the transcript of
proceedings in the case be protected and completed. This
transcript contains express admissions under oath by national
security officials that they made false statements under oath and
committed various national security violations. Many tapes of these
proceedings must still be transcripted by the Navy, a prerequisite
to any meaningful congressional review or inquiry. For example, on
the final day of the proceedings before the dismissal, Ms. Mary Rose
McCaffrey made a range of admissions of extremely serious violations
committed by herself and by her staff. The scope of these admissions
is described in
my
March 8, 2001 letter to the Director of Central Intelligence.
The evidence and record in this case
contain information relevant to two distinct areas of congressional
review. First, the defense has written repeatedly about knowing and
reckless violations of national security rules in this case. These
violations have been described under oath as serious breaches of
national security and, at a minimum, would be sufficient to revoke
the clearances of any responsible officials. Some of the nation's
most sensitive information was compromised despite the repeated
objections and warnings of the defense. The transcript in this case
shows Navy officials refusing to act to prevent unauthorized
disclosures and even laughing at warnings by the defense of
violations that were later found to be well-based and supported.
Dozens of such violations occurred and continued over objections by
myself, military co-counsel LT Robert Bailey, and military
co-counsel LT Matthew Freedus. As indicated in my prior letters, no
one has contacted me or my co-counsel for information on these
violations. Rather, the only investigation by the program was
ordered by Ms. McCaffrey, who admitted that her office only
conferred with the accused officials rather than independent
witnesses. Ms. McCaffrey, who has now admitted to a host of "serious
violations," testified that these witnesses never revealed a number
of serious breaches. Likewise, CDR Mark Newcomb, the force judge
advocate, asked the Naval Criminal Investigative Service (NCIS) to
look into violations despite the fact that the NCIS is one of the
chief culprits behind the national security violations alleged in
this case. The defense now has confirmed violations by no fewer than
ten NCIS agents. CDR Newcomb also chose not to refer the majority of
violations previously reported to Congress, including violations now
confirmed under oath by witnesses. As a result of the obstruction by
Navy officials like CDR Newcomb and CDR Lynn Jowers, program
information was handled and disclose with careless abandon in this
case. As a result, a number of special access programs must be
reviewed for possible damage and the need for corrective action. We
are preparing an unclassified list of dozens of different types of
violations in this case that we can confirm on the record in this
case and in a classified report.
Second, the evidence is relevant to
review the conduct of the Navy in pursing this prosecution. As both
an academic and a litigator, I have never seen a more troubling
case. There is no question in my mind that this prosecution was
prolonged by the personal interests of Navy officials who lacked the
integrity or the courage to admit to a colossal error. At the outset
of this case. Navy officials ran prematurely to the mediate announce
the arrest of a spy and a "counterintelligence coup." This case was
used to trumpet the Navy's prowess in comparison to the Department
of Energy and the Federal Bureau of Investigations (FBI) in the wake
of the Wen Ho Lee affair. However, soon after this media campaign,
it became clear that there was no evidence of espionage beyond a
highly questionable statement by Petty Officer King. This statement
was the result of interrogations that ran 19 hours and involved
blatantly unconstitutional and coercive techniques by the NCIS.
Despite this abuse. Petty Officer King consistently denied the
charges and stated that he was only signing the statement to end the
interrogations. Recently, a cache of tapes was found secreted in a
locker in the Navy Yard. These tapes show Petty Officer King
repeatedly denying that he committed espionage. The tapes reveal a
sobbing Petty Officer King asking for the interrogations and
polygraphs to end. On the tapes. Petty Officer King repeatedly makes
such statements as "I'm starting to make stuff up to please you to
get through this" and staling that he was inventing facts "to say
something to get through this so I can get back to my family." Petty
Officer King later states that the long interrogations have
destroyed any line between fantasy and reality and pleads "I don't
know what I'm supposed to give you." The NCIS also videotaped a
meeting requested by King with a Navy psychologist in which Petty
Officer King is shown crying and pleading with the Navy doctor to
put him under hypnosis or to give him sodium pentothal (truth serum)
to show the NCIS that he did not commit any act of espionage. Petty
Officer King is shown staling that he is exhausted from the
interrogations. Previously, NCIS agents told the defense that such
polygraphs and interrogations were not taped. Petty Officer King's
repeated denials do not appear in reports by the NCIS and Navy
officials told the media that King was a "confessed" spy without
revealing his contemporaneous denials. The military judge ultimately
ruled that the statement was contradicted, highly questionable, and
offered a weak basis for any espionage charge.
The lack of evidence in this case was
independently confirmed in the
recommendation of CDR Winthrop. CDR Winthrop wrote that the case
has been marred by blunders and violations by various Navy
officials, including himself. CDR Winthrop stated that "there is
plenty of blame to go around" and calls for an official review to
"determine the lessons learned from the case so the mistakes
committed will not be repeated." CDR Winthrop notes that, after a
year and a half, the government had yet to complete the testimony of
a single witness. CDR Winthrop stated that he doubts that the case
could be prosecuted under the constitution due to delays and
blunders by the government. However, CDR Winthrop also found that
the evidence in the case is highly questionable and unreliable. In
his decision, CDR Winthrop is critical of the Navy's case and notes
that the espionage charge "is based exclusively on a confession that
the accused subsequently contradicted on several occasions."
Moreover, CDR Winthrop states that there is merit to defense
arguments that this statement was coerced and involuntary. King was
interrogated in sessions that lasted 19-hour periods and he was
denied a lawyer by the NCIS. CDR Winthrop stated that "I don't
believe that the government evidence on any of the charges in this
case is strong. On the other hand, the defense evidence in
extenuation and mitigation is significant."
The King prosecution is a national
disgrace that has imposed prohibitive costs on both Petty Officer
King and national security interests. It is particularly disturbing
that these serious breaches of national security were committed in
pursuit of a meritless case. Various high-ranking Navy and civilian
officials are at considerable personal and professional risk in any
investigation of these matters. The defense was previously offered a
settlement agreement to dismiss all charges if both Petty Officer
King and his counsel agreed not to pursue later charges or lawsuits
against the Navy or officials in the case. My greatest concern is
that the individuals and programs responsible for these violations
be fully identified, investigated, and held accountable.
Additionally, compromised programs should be immediately reviewed
and corrective action taken. The first step, however, is to preserve
the evidence of the violations and to guarantee the completion of
the transcript in the case. This case has a troubling history of
altered documents and concealment that is confirmed on the record of
the proceedings. We have seen ominous signs of an effort to cut off
any review or charges in the last week. Within a day of the
dismissal of charges, officials accused of serious wrongdoing
contacted the defense and requested that we turn over all evidence
and material that we have assembled. This would prevent the defense
from supplying a classified report and evidence of unlawful conduct
in the case. These same officials have sought to terminate the
clearances of defense counsel, which would prevent any meaningful
disclosures or cooperation by the defense. These documents remain
secured under the previously approved conditions that have been in
place for over a year. The material under the control of the defense
is limited to material classified at or below the secret level. All
program material has been secured by our security officer and is not
part of the files retained by the defense. The sudden effort to
transfer defense files and to remove the clearances of defense
counsel is extremely disconcerting.
All of the members of the defense team
are prepared to supply sworn statements supporting these allegations
as well as a detailed and fully documented report on these
violations. Without your assistance, however, it is doubtful that we
will be able supply this information and identify the unlawful
conduct that we have witnessed in this troubling case. The Ohio
delegation was previously instrumental in clearing the name of Ohio
sailor, Clayton Hartwig, who was wrongly accused of the explosion on
the U.S.S. Iowa. Ironically, Hartwig lived near Petty Officer King's
home of Elyria and was also targeted by the same naval investigative
service. There remains a pronounced view in the military that men
and women in uniform are routinely denied basic rights afforded to
other citizens. When we speak of supporting our men and women in
uniform, their abuse at the hands of investigators is rarely
discussed as part of the congressional agenda. The King case is a
vivid and disturbing example of how our soldiers and sailors are
often given second-class status as citizens despite their service to
protect our constitution and our country. By calling for a
congressional inquiry, we understand that you must reserve your
judgment as to the allegations. However, without your support, we
may never be able to reach those merits and address the serious
allegations in this case.
I appreciate your attention to this
matter. I would be happy to brief you on these allegations in the
coming days. Should you have any questions, I can be reached
directly at the law school at 202-994-7001.
Sincerely,
Jonathan Turley
Defense Counsel for Petty Officer Daniel King
cc:
LT Bailey
LT Freedus
CTR1 King