Jonathan TurleyBy Facsimile Transmission and Overnight Mail
George Washington University Law School
2000 H Street, N.W.
Washington, DC 20052
March 6, 2001
The Honorable George J. Tenet
The Director of Central Intelligence
Washington, D.C. 20505
Re: United States v. CTRI Daniel M. King, USN Dear Sir:
As lead defense counsel in the above referenced case, I am again writing to you to ask for your intervention to stop on-going and serious violations of national security laws and regulations. Military co-counsel, LT Robert Bailey and LT Matthew Freedus join me in this request for intervention and investigation. In the fall of last year, I repeatedly wrote to you and other intelligence officials concerning these violations. Despite these letters and subsequent inquiries from members of Congress, violations have continued unabated in the case and witnesses have now given sworn testimony acknowledging such violations under oath. Moreover, despite assurances to Congress that inquiries have been made, critical witnesses have recently testified that no such inquiry or investigation has occurred. The failure to take even minimal steps to inquire into these violations is alarming. Even more distressing is the failure of any intelligence official to contact me or any member of the defense as to the specific allegations and supporting details.
As before, I wish to emphasize that this correspondence is not part of any litigation tactic. To the contrary, the prosecution of Petty Officer Daniel King is now virtually impossible given constitutional errors committed by the Navy. In fact, the Navy recently admitted to the media that it was moving to dismiss the charges against Petty Officer King. Petty Officer King has now been confined for over 520 days without the benefit of a formal charge, let alone a trial. In the pending speedy trial challenge before the United States Court of Appeals for the Armed Forces (CAAF), the Navy has waived the right to file a brief contesting our demand for a complete dismissal. As I stated in my prior correspondence, I informed you that my concerns stem from my obligations as a holder of a Top Secret/Sensitive Compartmented Information (TS/SCI) clearance as well as a former employee of the National Security Agency (NSA). As an academic and practitioner in the national security field, I have never witnessed nor heard of such flagrant disregard of national security rules and regulations regarding the handling of classified information as committed by the government in this case.
Given the gravity of these violations, I ask for the opportunity to detail these violations in a classified meeting or to prepare a classified report of the violations. I must also repeat my earlier request that an independent inquiry be made of these proceedings to establish the scope of national security violations. I strongly encourage you to act to contain any damage due to those violations, and to take appropriate action with respect to the responsible individuals.
I. FAILURE TO INVESTIGATE OR TO INQUIRE INTO THE ALLEGATIONS.It is clear from the record of these proceedings that various program and Navy officials have steadfastly opposed any formal review of the violations in this case due to their own professional and legal interests. While the defense has prevailed upon the Navy to tighten precautions in some significant aspects, violations remain on-going and it appears that there is a resistance to make changes out of a fear that such corrective action might be viewed as a further admission of misconduct or gross negligence.
I am particularly concerned about the testimony of Ms. Karan Wright, who until recently served as a security officer assigned to the proceedings. Ms. Wright admitted under oath that she had violated national security regulations in the proceedings and stated that other officials had also committed such violations. Ms. Wright, however, testified that no inquiry or investigation had been made of the security violations or procedures in the proceedings. This testimony was consistent with the knowledge of the defense. Despite an extensive record of such violations, including the release of program and classified material to unauthorized persons, there has been little effort by the Navy nor by other relevant agencies to act to avoid any further compromise of information. After defense counsel raised serious allegations of national security violations, no one has contacted the defense or sought further information from the complaining party.
There appears a complete lack of interest in these admitted violations of the handling and disclosure of extremely sensitive information. For example, when the defense wrote to the NSA concerning violations by LT Timothy Orr, NSA General Counsel Robert L. Deitz replied stating that no violations had occurred and that the allegations were meritless. Before reaching this conclusion, Mr. Deitz never contacted the complaining party. Accordingly, Mr. Deitz would have had to rely upon conversations exclusively with the accused party to reach such a conclusion. It is shocking that the general counsel for an intelligence agency would be so cavalier about allegations of security violations as not to make any independent inquiry with the complaining party. The violations by LT Orr were minor compared to those committed by other members of the prosecution and the program offices as confirmed throughout these proceedings. The handling of this matter shows the complete failure to respond to allegations of national security violations in a responsible and appropriate manner.
All of the defense correspondence regarding these violations has been unclassified. The defense anticipated that someone would arrange a classified meeting or method to permit a detailed presentation of these violations. The failure of any intelligence official to contact the accusing party on these allegations speaks volumes as to the reluctance of responsible agencies to acknowledge and respond to comprehensive violations by their own officials. Months have gone by without such an inquiry, an act of omission that itself constitutes a violation of national security regulations.
II. THE ON-GOING VIOLATION OF NATIONAL SECURITY LAWS AND REGULATIONS.It is not possible to give details of the specific allegations of national security violations in this case in an unclassified letter. However, it is important to convey the scope and gravity of these violations. What is striking about these violations is that they involve virtually every possible failure to protect program and other classified information, including violations relating to (1) the physical facility for the discussion of classified material; (2) the marking, storage, and handling of classified material; (3) the disclosure of classified material to unauthorized personnel; and (4) the proper response to unauthorized disclosures and other national security violations. A few examples from each of these areas merit mention.
A. Violations Concerning the Physical Facility for the Discussion or Disclosure of Classified Information.
1. The Navy continued to use a SCIF at Quantico that the defense repeatedly objected to as manifestly insufficient and uncertified to handle the program information in this case. The Navy insisted on using the SCIF for a year and a half until the defense was able to secure testimony of one security official that the SCIF was not certified and not appropriate for the discussion of her program.
2. The Navy allowed unauthorized individuals to enter a SCIF where program information was readily visible without any warning to the hearing participants that an uncleared individual was entering the room.
3. The Navy only recently began (in the last few weeks) to announce at the beginning of each session the level of access needed to be present -- after repeated disclosures to unauthorized persons of program information.
4. The Navy investigators played a tape containing program information to the accused in a hotel on a hotel tape machine. This same tape was played to other individuals without access in at least one earlier meeting. When this tape was classified on the secret level, the defense objected that the tape clearly contained program information and that it had to be immediately reviewed and secured. Navy prosecutor CDR L. Lynn Jowers repeatedly dismissed the objections and stated that Ms. Wright had also reviewed the tape for any program information. The need for corrective action was raised repeatedly by the defense on no less than seven different occasions. Finally, in the last twenty-four hours, the government admitted on the record that the tape did contain program information and that "serious" violations of national security regulations had occurred.
5. The Navy repeatedly asked the accused to discuss highly sensitive program information with uncleared investigators in hotel rooms and unsecure locations. The details of these interrogations, containing program information, were typed up by these uncleared agents on uncleared computers and handled by uncleared personnel.
6. Basic SCIF practices were ignored, including the repeated failure to warn individuals not to bring cell phones into the SCIF. In fact, the military judge in the case, CDR James Winthrop, was found twice with a ringing cell phone in the midst of testimony on highly sensitive program information.
B. Violations on the Proper Marking, Storage, and Handling of Program and Other Classified Information.
1. The Navy conducted three classification reviews that were grossly negligent. This failure resulted in mismarkings and the unauthorized release, discussion and storage program information mistakenly marked as unclassified or "secret."
2. The defense has repeatedly found copies of program information that contained no program markings. As late as last week, the defense found Mr. Bill McKinney, a high program official, relying in his testimony on a document that was improperly marked.
3. Program information has been stored in areas that are not allowed to house such information over repeated defense objections.
4. Controlled documents have been copied, taken out of control channels, and treated as "working papers." Each of the government witnesses who are proffered as experts in national security regulations have engaged in this conduct. These copies do not fit the standard definition of working papers because they are final products that are transported and released outside the individual program offices. As such, the witnesses defeated the purpose of the control system by developing unaccounted copies of controlled documents and letting those documents be made part of an official court record. In some cases it is impossible to determine how many copies of a controlled document exist.
5. Unclassified documents have been designated as classified outside of the proper classification review process, including a document so designated by CDR Jowers who admitted to using her own "instincts" in the matter.
6. Virtually all of the program material in the case has been handled without the back cover or last page having any markings to show the classification level of the material contained therein. Many of these documents have TS/SCI information on the final page. Moreover, CDR Jowers has been allowed, over repeated objections of the defense, to submit classified documents as exhibits and to show those documents to witnesses without a cover sheet. Both CDR Jowers and CDR Winthrop refused to stop the practice and CDR Winthrop only asked that covers be added by "the end of the Article 32 proceedings" -- a potential delay of months.
7. The Navy did not clear or arrange for proper protection of program information during the investigation of Navy investigators, who were uncleared for access to such information.
8. The Navy knowingly allowed unclassified material marked as classified despite months of objections from the defense that such classification violated federal law.
9. The Navy refused numerous demands for declassification review and mandatory classification reviews which could have avoided the unauthorized disclosure of program information.
10. The Navy repeatedly refused to confirm the access of individuals to programs, leading to numerous individuals being exposed to programs for which they were not cleared.
11. The Navy repeatedly failed to respond to defense objections that specific program information was being held in unsecured or unauthorized locations.
12. On the stand various security officials, including Ms. Mary Rose McCaffrey, showed an astonishing lack of training or knowledge on the most basic national security procedures in the copying and handling of controlled documents. These admissions are on the transcript in the proceedings.
C. Disclosure of Program and Other Classified Information to Unauthorized Individuals.
1. The Navy repeatedly allowed program information to be disclosed to over a dozen individuals without access to those programs, including people without an active clearance of any kind.
2. The Navy has allowed various NCIS investigators to collect, report, and discuss program information without proper access or clearance. This includes disclosures that were incorporated into documents prepared on uncleared computers or shown on videos in unsecured settings.
3. Efforts by the defense to demand proof of access of individuals in these proceedings was opposed by CDR Jowers and CDR Winthrop resulting on continued violations until the defense refused to continue absent such written proof. Once proof was supplied, the true scope of the violations was even more extensive than the defense had ever expected.
D. Improper Response to Unauthorized Disclosures and Other Allegations of National Security Violations.
1. The Navy has failed to obtain Inadvertent Disclosure Agreements (IDAs) from individuals with unauthorized access to program information despite the fact that the defense has been able to locate these individuals and confirm their prior violations of unauthorized access.
2. One high-ranking program official, Mr. Bill McKinney, stated that the Navy had decided to wait until the end of this case to act to get IDAs signed and retrieve program information in the possession of such uncleared individuals. Meanwhile, some of these individuals have been in possession of information for which they are not cleared for seventeen months. Others have since left the government. When challenged on this lack of due diligence, Mr. McKinney claimed that many of these individuals are unreachable despite the fact that the defense has had no difficulty in locating the same individuals.
3. National security officials assigned to the proceedings stated that, when confronted with a witness who lacked any clearance, that the acceptable approach was to intentionally reveal program information and then get the witness to sign an IDA.
4. In one instance, the defense noted that a document's cover page referred to a program for which no one, not even the security officials, had access. The security officer assigned to the proceedings suggested that the proper response was for him to read the document to confirm that the document did indeed contain references to a program for which neither he nor anyone in the room was given access.
5. When the defense repeatedly challenged the access sof spectators such as LT Orr to various programs, the challenge was objected to by CDR Jowers as meritless and CDR Winthrop repeatedly refused to take action. Ultimately, the defense was proven correct that LT Orr and others did not have access to program information revealed in the proceedings.
6. When the defense repeatedly demanded a matrix showing the programs for which participants were given access, such written confirmation was denied. Instead, Ms. Wright repeatedly and falsely informed the defense that everyone was cleared for these programs. Ms. Wright made such oral assurances three times -- each time it was shown that the statements were false and unauthorized disclosures resulted. It was only after the defense refused to continue without written confirmation that a matrix was produced -- the matrix showed numerous instances of unauthorized access to program information.
7. The Navy, through CDR Jowers, has concealed evidence of violations of national security rules and regulations.
8. Even after dozens of documented national security violations, the Navy refused to conduct an independent inquiry into the on-going violations and allowed identical violations to occur unabated over defense objections.
9. CDR Jowers and CDR Winthrop have repeatedly admitted to knowledge of national security violations but never complied with their obligations as security clearance holders to report violations.
10. Each time the defense notices a security violation related to the proceedings we raise it immediately and ask that corrective action be taken without delay. Whenever such a concern is raised, CDR Jowers objects that now is not the proper time to consider such violations and asserts that they can be dealt with at some unspecified later date. CDR Winthrop has adopted a similarly passive attitude and refuses to order any immediately corrective action.
III. REQUESTED RESPONSIVE OR CORRECTIVE ACTION.The defense has now attempted every possible official avenue to address these violations. The defense first raised its concerns with the immediate Navy officials and program officials responsible for the violations. When these officials refused to act, the defense asked Vice Admiral Joseph Mobley, the convening authority, to act. When this effort failed, the defense asked CDR Winthrop to act. When this failed, the defense wrote to you for intervention as well as other high-ranking officials. When this failed, the defense wrote various members of Congress on the intelligence committees. None of these efforts have produced an inquiry or investigation and the violations have continued.
What is especially disturbing is that every effort by the defense to address national security violations has been met with consistent and determined opposition from the Navy. The prosecutor in the case, CDR Jowers, has opposed every such effort, including determining if material in the proceeding required immediate action to avoid a compromise of national security. It was due to this opposition that the proceedings continued to occur in an improper SCIF and program material was released to unauthorized persons over the numerous defense objections.
In my earlier letters, I expressed confidence that my obligations were satisfied by raising these violations to you and to Congress. I can no longer make such an assumption. Due to the lack of response to my earlier letters, additional violations have occurred and national security interests have been compromised. I feel compelled to seek all possible avenues to spur meaningful action in this area without further delay.
I ask that three steps be taken immediately to address these concerns. First, I ask that an inquiry be made as to the scope of prior violations and the on-going failure to properly control program information in this case. Given the fact that program security officials, like Ms. McCaffrey, have had direct knowledge of these violations and not acted to prevent them, it is essential that this inquiry be made by an outside and independent panel. Second, at a minimum, the defense should be allowed the opportunity to detail these violations at the outset of such an inquiry and to speak with officials conducting the inquiry. Third, I ask for a formal revocation review of the clearances of those officials who either committed these violations or refused to take corrective action to protect the information. This review should also include a specific review of the program security under the supervision of Ms. McCaffrey, which was the source of the most extensive and serious violations in the course of these proceedings.
Please inform me if you intend to intervene in this matter or to order any of the three responses requested above. If you intend to refer this matter for investigation, please indicate whether you will also ask for a formal inquiry, defense presentation of evidence, or clearance revocation review. Given the on-going nature of these violations and the sensitivity of the information, I respectfully request an expedited response.
Defense Counsel for Petty Officer Daniel King
The Hon. Donald Rumsfeld
The Hon. Robert B. Pirie, Jr.
RADM Donald Guter
Members of Congress