FOR IMMEDIATE RELEASE
April 3, 2001
Kelly McDermott 202-994-0537
Today, the Senate Select Committee on Intelligence will hold a hearing on the investigation and prosecution of the Daniel King espionage case. Lead counsel Professor Jonathan Turley will testify as will detailed military co-counsel LT Robert Bailey and LT Matthew Freedus. Also invited to testify are the Director of Naval Intelligence, the Judge Advocate General, and the Director of the Naval Criminal Investigative Service. The defense presented almost two hundred pages of unclassified testimony to the Committee, which is available at the website of the Federation of American Scientists (www.fas.org/irp/ops/ci/king/index.html).
Congressional Hearing on King Espionage Case Today
Defense Exposes False Statements to Congress and Media by Navy
While the Committee closed the hearing to the public to allow for the discussion of classified information, the defense has been barred from access to its classified notes for use in the hearing and barred from being present during the Navy's presentation of the facts in the case. All of the evidence in the case was previously disclosed to the defense, which is cleared for the programs. The defense strongly objected to its exclusion given its submission of documented false statements made by the Navy about the evidence in the case. The defense was prepared to present classified exculpatory evidence and material showing unlawful conduct by the Navy in the case.
In unclassified testimony before the Committee, the defense presented the facts of the case, including abuses by the Navy in the interrogations of Petty Officer King. These abuses include 20 hour interrogation sessions for 29 days, violations of federal rules on the use of polygraphs and the denial of counsel to suspects. In addition, the defense disclosed a series of demonstrably false statements made to the media and Congress by the Navy in the aftermath of the case. See attached "Fact Sheet: Navy Statements vs. The Record."
After the dismissal of the case, Senate Intelligence Committee Chairman Shelby denounced the Navy for a "bungled, botched" investigation and prosecution. Senator Shelby specifically criticized the prosecutor for mishandling the case and called for today's hearing. Two weeks after Senator Shelby's criticism, the Navy held a public awards ceremony and gave prosecutor, CDR Jowers, one of the highest decorations for her service in the last three years, most of which was dedicated to the King prosecution. The meritorious service medal award was given for the prosecutor's work in "high-visibility, highly sensitive and complex cases, many involving direct congressional interest [and] . . . Commander Jower's [sic] exceptional professionalism, personal initiative, and total dedication to duty reflected great credit upon her and were in keeping with the highest traditions of the United States Naval Service." The award specifically credits CDR Jowers with bringing "each case to just and satisfactory resolution" in the last three years.
CDR Jowers faces a variety of allegations of misconduct in the case, including interrogations of King in the brig without his lawyers, serious national security violations, hiding exculpatory evidence, and false statements made to the court during the pendency of the litigation. Formal charges will be brought against various Navy and NCIS officials in the coming week. The defense is also exploring various federal filings to address the unconstitutional conduct of the Navy and NCIS in the case.
FACT SHEET: NAVY vs. THE RECORD
1. The Navy's Statement: "[W]hen a Sailor with access to the U.S. Navy's most sensitive programs repeatedly states that he betrayed the Navy's most crucial secrets, the Navy has an obligation to investigate."
This widely disseminated statement is coupled with other suggestions that the King admitted to espionage and compelled further inquiry. The record shows that it was not until eight days into the espionage investigation and after over 19 hours of interrogation that King signed any statement on espionage. The NCIS began this investigation after a "no opinion" result on a polygraph examination. It was the NCIS, not King, that probed fantasies of espionage and continued to interrogate exclusively on the subject of espionage. The NCIS should have simply given this sailor another polygraph after a common "no opinion" result before triggering a full-fledge espionage investigation. The obvious misleading intent behind this statement is to suggest that Petty Officer King confessed immediately to such acts - a statement refuted on the record of signed statements, the audio tapes and other evidence in this case.
2. The Navy's Statement: "[T]he navy could not responsibly have chosen to simply ignore Petty Officer King's inability to pass his polygraph and subsequent incriminating statements."
This statement was also part of the public release by the Navy after the dismissal of the case. As noted above, the statement does not mention that Petty Officer King did not fail his polygraph and did not make incriminating statements in triggering any investigation. Petty Officer King had a "no opinion" result on a polygraph and repeatedly denied any espionage. Both military detailed counsel in this case had "no opinion" results on their polygraph examinations and NCIS agents admitted that everyone in this field has a fantasy of espionage at some time in their career.
3. The Navy's Statement: "Petty Officer King also said he considered going to Russia to hurt the Navy by revealing sensitive information."
This statement was also part of the public release by the Navy after the dismissal of the case. This statement is also knowingly misleading and false. During the interrogations, King admitted that he had been angry with the Navy at points in his 20-year intelligence career and that he had fantasized of being a spy. However, in the first three statements that he signed, King expressly stated that he never engaged in such acts and they were just passing flights of fancy. The Navy never mentions in its statement that this reference comes from what NCIS agents refer to as fantasies on the audio tapes. The Navy never mentions that Petty Officer King repeatedly emphasized that these were merely fantasies or that he expressly denied engaging in such conduct.
4. The Navy's Statement: "Petty Officer King also said . . . that he had committed serious security violations."
This statement is also part of the public releases by the Navy. The Navy brought two charges for national security violations distinct from the espionage charge. Both of these charges were summarily dismissed by Judge Winthrop as minor allegations that, even if true, should not have been submitted for prosecution. Judge Winthrop wrote:
"Although the evidence may surmount the low threshold of an Article 32 investigation, and that is by no means certain, I don't believe 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 Navy brought no other charges of national security violations. Ironically, the defense has detailed over three dozen proven violations of national security rules in this case by Navy and NCIS officials, including the identical violations made against Petty Officer King. Some of these unauthorized disclosures occurred in unsecure locations, like hotel rooms, and involved entirely uncleared individuals.
"a. The wrongful disclosure allegations, and the related charges involving dereliction of duty and wrongful communication, are exemplary in this regard. The alleged violations occurred while the accused was on duty in a Sensitive Compartmented Information Facility (SCIF) in the presence of fellow servicemembers with high level clearances. Each allegation is based on the recollection of one witness of events that occurred six and four years ago, respectively. Thus, on the merits, the government has one witness who will be required to rely on memory for events that occurred several years ago. With respect to extenuating and mitigating circumstances, it must be emphasized that the alleged disclosures occurred in secure areas to personnel that otherwise had high level clearances, but not access to the specific program in question. Thus, the threat to national security from these alleged violations was minimal. Furthermore, one witness did not take the disclosure seriously, while the other witness considered the information helpful in performing her job. It appears in both cases that the accused was disclosing the information to assist others in performing their duties. These facts constitute strong extenuating and mitigating evidence."
5. The Navy's Statement: "CTR1 King failed multiple additional polygraph examinations, all of which were conducted in accordance with strict Department of Defense guidelines."
At no point in the numerous statements issued by the Navy or the NCIS is there an admission that Petty Officer King did not fail his first polygraph examination but had a common "no opinion" result. He continued to have such results on the second and third days of interrogation. The suggestion that these polygraphs met professional standards is laughable. First, the NCIS agents never inquired about King's use of various drugs, some of which were seized in his room. King was openly taking over-the-counter drugs for weight-lifting and weight-loss as well as drugs for medical conditions. These drugs can heighten responses and produce exaggerated responses to stressful questions. Second, the NCIS continued to interrogate King for weeks while calling him a spy. He would be moved from highly prejudicial and stressful interrogations into these tests. The audiotapes in this case show King weeping and sobbing. He asks to go to sleep but is told to continue with the interrogations. The agents lied to King and stated that he had failed polygraph examinations where he actually produced a "no opinion" result. In polygraph examinations, such lies undermine the results. By telling someone falsely that they failed, you guarantee that the person will elevate on the questions in anticipation on later examinations.
Third, from the first day, the agents forced King to repeatedly repeat prior fantasies and dreams of espionage. The agents repeatedly had King write down the fantasies and sign them as statements. King is heard on these tapes having an increasing difficulty in distinguishing fantasy from reality. Deposed agents admitted that he appeared to be struggling with what was real and what was dream during the interrogations. DoD regulations expressly forbid specific acts in the King case, which can be found in the last section of Professor Turley's unclassified testimony.
6. The Navy's Statement: "The interviews were reasonable, relaxed, and many were at the request of CTR1 King."
This is also from the public statement of the Navy. This statement is knowingly false. The audio tapes in this case show King weeping and sobbing. During 19-hour interrogations, King asked to go to sleep but is told to continue. The NCIS continues interrogations for 29 days. At times, King is shouting "I don't know what I'm supposed to give you" over and over at the agents as they press him for a signed confession. Moreover, it is noteworthy that King seeks the assistance of a psychologist for hypnosis on the videotaped interview with NCIS psychologist Dr. Michael Gelles. After his return to the United States, King was clearly trying to find a way to distinguish fantasy from reality. He told Gelles that he had no memory of the espionage facts but says that the polygraph examinations prove that he must have done something - a clear misconception that neither Gelles nor the agents correct.
7. The Navy's Statement: "CTR1 King never told NCIS he wanted a lawyer, and he never asked for a lawyer."
This is also part of the official statement released by the Navy and the NCIS. It is knowingly and demonstrably false. Petty Officer King asked for an attorney on October 5, 1999. Documents in the case establish at least two additional invocations of his right to counsel. On October 8, 1999, King signs a waiver of his right to remain silent but specifically invokes his right to counsel. King initials his statement that "I do wish to have my lawyer present during the polygraph examination." In a later waiver form, King again clearly asks for an attorney and again signed a statement (and initials an invocation), stating "I do desire to have my lawyer present during the polygraph examination." No lawyer was ever produced by the NCIS which continued to do polygraph examinations with long interrogations before and after the tests. Under Edwards v. Arizona, 451 U.S. 477 (1981), an attorney should have been supplied to King and interrogations suspended immediately when he asked for a lawyer on October 5, 1999. After the Navy and the NCIS issued these false statements, the defense released the documents showing invocations of counsel. The response of the Navy was that these were merely "typographical errors" despite the fact that King both signed the form and initialed the specific language added on the invocation. Previously, however, in defense of its conduct in the case, the Navy has repeatedly emphasized that "King reviewed each statement, made the changes that he wanted to make, and signed each statement . . . . He swore to the voluntariness and truthfulness of each statement." Vernon Loeb & Walter Pincus, "Pentagon Probes Spy Case Navy Dropped Against Sailor," The Washington Post, March 29, 2001 (statement of LCDR Cate Mueller, spokesperson for the United States Navy).
8. The Navy's Statement: "The Naval Criminal Investigative Service did not have further contact with CTR1 King after he was ordered into pretrial confinement on October 28, 1999."
This was also part of the public statement of the Navy and the NCIS. This statement was part of the argument that Petty Officer King was not in custody until he was placed in the brig. King was under 24-hour guard and moved from safe house to safe house in Guam. He was told that he would be shot if he attempted to escape. He was required to shower and go to the bathroom in the view of agents. However, putting aside the obvious elements of custody, neither the Navy nor the NCIS has ever revealed that military courts rejected this argument. The Navy-Marine Court of Criminal Appeals twice stated that Petty Officer King was in custody starting October 2, 1999, when he was placed in the first safe house. The Navy did not contest this finding in an appeal to the Court of Appeals for the Armed Forces. Yet, after appellate courts have already decided this issue, the Navy and the NCIS continue to release false information to attempt to mitigate their misconduct in the case.
What is equally disturbing is that even the affirmative statement regarding the cessation of NCIS interrogations or further contact is false. The defense has sign-in sheets from the Quantico brig showing that, after King was placed in the brig, interrogations continued. The log shows NCIS agent Kenny Rogers signing in for an interrogation of King on October 31, 1999, three days after he was placed in the brig. This interrogation was particularly outrageous because it was conducted by the prosecutors without defense counsel, with the assistance of the NCIS.
9. The Navy's Statement: There was corroborating evidence in this case of espionage.
As noted earlier, there was a torrent of leaks and false statements given to the media in this case. All these facts were attributed to specific spokespersons or confidential sources "close to the investigation." In March, the defense was asked to respond to a statement made by CDR Newcomb. With the case still pending, CDR Newcomb told CBS Sixty Minutes that there was actually an abundance of corroborating evidence of espionage in the case. The defense immediately wrote to CDR Newcomb on March 8, 2001 and demanded an explanation. Since no such evidence had been presented in the proceedings, the statement was either false or the government was again withholding evidence. CDR Newcomb wrote back to state that all possible corroborating evidence had been disclosed to the defense and the military judge. No corroborating evidence was being withheld. The only piece of evidence that the Navy could even offer as corroborating was a log that would be rejected in any court as corroborating evidence in this case. Yet, Judge Winthrop was extremely critical of the absence of corroborating evidence in the case and stated that such evidence did not seem to even meet the standard of "slight" evidence of corroboration. Judge Winthrop stated that, even if Petty Officer King's statement was found to be voluntary, "I question whether the mere existence of the daily log provides independent evidence of an 'essential fact' of the confession, i.e., the act of espionage." In fact, the classified evidence in this case contains a great deal of exculpatory evidence including the audio tapes and investigative reports that find no evidence that Petty Officer King's account actually occurred.