By Facsimile Transmission and Overnight Mail
The Honorable Richard C. Shelby
Senate Select Committee on Intelligence
SH-211 Hart Senate Office Building
Washington, DC 20510-6475
Re: United States v. CTR1 Daniel M. King. USN
Dear Chairman Shelby:
Over the course of many months, I have written to you
and various intelligence officials concerning serious breaches of
national security in the above referenced case. This letter is to
inform you that, as anticipated in my earlier correspondence, the
charges against Petty Officer Daniel King have been 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 on March 9, 2001.
I am writing to you to ask for your intervention to
preserve evidence of unlawful conduct, including serious national
security violations, by various officials in this case. With the
dismissal of these charges, there is no bar to direct congressional
inquiry into these violations. 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, a
copy of which was sent to you earlier.
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 disclosed 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 media to 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 slating 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 Petty Officer 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 stating
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, Winthrop states that there is merit to defense arguments
that this statement was coerced and involuntary. Petty Officer King
was interrogated in sessions that lasted 19-hours 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.
It is unlikely that an independent investigation will
occur without the oversight of Congress. I ask for you to act to
assert that oversight authority in this matter and help mediate a
process for a classified report and a full inquiry. 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 to supply this
information and identify the unlawful conduct that we have witnessed
in this troubling case.
I appreciate your attention to this matter.
Sincerely,
Jonathan Turley
Defense Counsel for Petty Officer Daniel King
cc:
VADM Mobley
CAPT McPherson
LT Bailey
LT Freedus
CTR1 King