Thank you, Mr. Chairman.
PREPARED STATEMENT OF
ROBERT A. BAILEY
JUDGE ADVOCATE GENERAL'S CORPS
UNITED STATES NAVAL RESERVE
DEFENSE COUNSEL FOR PETTY OFFICER DANIEL M. KING
Mr. Chairman, members of the Subcommittee, my name is Robert Bailey. I currently represent Petty Officer Daniel M. King and served as a detailed military defense counsel during his prosecution for alleged espionage. I am currently serving on active duty in the Judge Advocate General's Corps, United States Naval Reserve. I was commissioned in February of 1998 while still in law school. I graduated with high honors from George Washington University Law School in May of 1998 and was admitted to practice law in the State of Washington in December 1998. Following my admission to practice I reported to my first duty station, the Naval Legal Service Office (NLSO) North Central, Washington, D.C., in January 1999. I started at the NLSO practicing civil law on behalf of service members. In September 1999 I was transferred to the defense section where I was assigned to represent service members in criminal trials.
Less than two months after I became a defense counsel, my chain of command assigned me to represent Cryptologist Technician (Collection) First Class (CTR1) Daniel M. King at his initial review hearing. This is a hearing to determine whether the accused should remain in confinement pending disposition of his case. Prior to the hearing the command had a vague notion of the nature of the offenses but was unaware of any actual charges. In conducting the hearing and speaking with CTR1 King, I quickly realized that I would not be able to handle this case alone. When I returned to the NLSO, I informed my command that I would require assistance and asked that they assign the most experienced defense counsel in our office at the time, LT Matthew Freedus, to act as assistant defense counsel. Although far more experienced than any other defense attorney in the office, LT Freedus had only been a defense counsel for 10 months.
I was assigned to act as CTR1 King's military defense counsel in November of 1999 and have served in that capacity ever since. It soon became clear upon review of the evidence that CTR1 King never engaged in espionage. However, the evidence of abuses and unconstitutional practices by the government was overwhelming. The Naval Criminal Investigative Service (NCIS) agents investigating the case engaged in constitutionally abusive practices with disturbing regularity. These abuses continued into the attempted prosecution and even after the case was dismissed. The abuses by government agents in this case shock the conscience to such an extent that in-depth investigation into the tactics employed by the NCIS and by military prosecutors is necessary to avoid such a travesty of justice befalling any other service member. Production of a verbatim transcript of the Article 32 proceeding in the case will establish many of these violations beyond question.
While LT Freedus will discuss the factual shortcomings of the government's case and Professor Turley will discuss the government's unwillingness to perform basic prosecutorial functions and the overall scope NCIS practices in this case and others, I will direct my comments towards the pattern of unconstitutional and abusive practices by the government. Additionally, I concur with the statements of my co-counsel in their testimony before this committee.
The abuses in this case essentially fall into two major categories: those committed by Naval Criminal Investigative Service during their investigation, and those committed by the prosecution and convening authority during the attempted prosecution. These abuses were so pervasive and so serious that the actors were either completely oblivious to the standards of appropriate conduct, or felt they were not bound by the laws and Constitution of the United States. Investigation and intervention by this body is necessary to ensure that the rule of law is observed and protected by military prosecutors and investigators.
II. CONDUCT OF NCIS INVESTIGATORS
The conduct of NCIS agents in this case was nothing short of shocking. Independent reviewers have stated that their techniques were barbaric and hearken back to the unconstitutional abuses of the 1920s and 1930s. That such conduct occurred at the hands of NCIS is not surprising to one regularly involved in military justice practice within the Navy. Indeed, such conduct is predictable based on the training and guidance manual published by the NCIS. According to the NCIS Manual, Chapter 14 - Interrogations, any person who adamantly denies any wrongdoing and points to his clean record is "subconsciously confessing." If a confused suspect asks what is going to happen to him, the NCIS believes this is an indication that he "is beginning a confession." Additionally, agents are to convey the idea that they will "persist as long as required to resolve the issue under investigation" and that they "will not give up the interrogation." With this guidance in hand, the NCIS agents pursued CTR1 King with such unconstitutional vigor that King's only recourse was to confess to a crime he did not commit in the hopes that he would eventually receive a lawyer and the truth would come out.
The practices used by the NCIS can be broken into five distinct categories. First, the agents conducted polygraphs examinations and related interrogations in an unethical and prejudicial manner. Second, the interrogation techniques employed by NCIS agents over the course of almost a month of questioning were an unquestionable violation of CTR1 King's constitutional rights. Third, NCIS agents blatantly disregarded CTR1 King's repeated requests to stop the interrogations and repeated requests to obtain a lawyer. Fourth, the investigators abused their positions and engaged in unethical and illegal behavior during interrogations with CTR1 King's friends, family and coworkers. Finally, the NCIS continued to impede CTR1 King's attempts to prove he did not commit the acts alleged by overclassifying all evidence in the case, permitting its two lead agents to refuse to speak with defense counsel outside the presence of an attorney, and making false statements to the media.
A. PolygraphsPublic statements issued by the Navy have stated that all polygraph examinations performed on CTR1 King were conducted according to Department of Defense regulations. This is completely untrue. One of the Navy's statements indicates that recording the examinations is a requirement under the regulations. The first three days of exams were recorded in accordance with those regulations; the remainder were not. Perhaps agents stopped recording because they were aware that they were not conducting examinations in accordance with the regulations. Those examinations that were recorded demonstrate a sharp departure from the practices established in the Department of Defense regulations.
Immediately following the first polygraph examination, the polygrapher, Special Agent (SA) Robert Hyter, told CTR1 King that he had failed the exam. This was a lie. SA Hyter actually was unable to render an opinion on the chart produced by the examination. SA Hyter never went back and attempted to retest CTR1 King on those questions in an effort to get a more accurate reading. An indeterminate or "no opinion" reading on a polygraph is very common. Both LT Freedus and I had similar results with our first polygraph examinations following assignment to this case. The polygraphers simply reran our polygraph tests and obtained positive results. SA Hyter never took this important and logical step in his polygraph examination of CTR1 King.
By lying to CTR1 King and failing to retest him, SA Hyter created a situation in which CTR1 King would be more likely to show an elevated response to the relevant questions when they arose again. The NCIS Manual encourages agents to lie during interrogations, but Department of Defense regulation 5219.48-R prohibits using the polygraph as such a "psychological prop." Lying about polygraph results is sure to result in inaccurate results. CTR1 King undoubtedly experienced considerable anxiety regarding the relevant questions after being lied to regarding the prior results. Such anxiety can create a false negative or deceptive reading to these questions. See Benjamin Kleinmuntz & Julian J. Szucko, On the Fallibility of Lie Detection, 17 L. & Soc'y Rev. 85, 87 (1982); see David T. Lykken, The Lie Detector and the Law, Crim. Def., May-June 1981, at 19, 21 ("Any reaction that you might display when answering deceptively you might also display another time, when you are being truthful.").
As the polygraphs continued, NCIS agents further departed from regulations when they stopped recording the examinations and the interrogations that followed. SA Hyter received specific orders from his superiors at NCIS headquarters to stop recording the examinations and interviews. SA Hyter felt that he had no discretion in whether or not to record interrogations. The NCIS Manual, however, states that the recording of interrogations is "strongly recommended." Despite more than three weeks of additional interrogations, no sessions other than a meeting between CTR1 King and an NCIS psychologist were recorded.
After the initial indeterminate results, the polygraph examinations continued intermittently over the next several weeks. CTR1 King would undergo five or more examinations in a single day with mixed results. The Navy has stated that he failed the polygraph examinations. In truth, the results were almost always indeterminate. The only time he registered deceptive results was after long sessions and days of constant interrogations, and under clearly impermissible conditions.
The NCIS agents skewed the results of the examinations by conducting them under conditions destined to produce inaccurate results. The examinations were regularly conducted when CTR1 King was fatigued or complaining about a lack of sleep. On the tape of the examination and interview on October 2, 1999, SA Hyter states that he recognizes that CTR1 King is very tired, operating on a lack of sleep and fatigued from the constant questioning. Nonetheless, he proceeded to administer a series of polygraphs which CTR1 King predictably failed to pass. Administering a polygraph examination under these conditions is improper and likely to lead to inaccurate readings, and is prohibited under Department of Defense regulation 5210.48-R. Nonetheless, SA Hyter simply told CTR1 King that he appreciated the fact that he was tired but that the polygraph would take place anyway.
In addition to conducting examinations under sleep-deprived conditions, the agents mingled polygraph examinations with abusive interrogations. The commingling of these techniques had the predictable result of elevating CTR1 King's reaction to the relevant questions and producing unreliable examinations. Specifically, CTR1 King was told that he was a spy. SA Hyter is heard telling CTR1 King during the October 2, 1999 interrogation that his inability to pass the polygraph examination indicates that he is a spy and has engaged in espionage. When CTR1 King is asked questions on to this subject in subsequent examinations, he experiences predictable anxiety over being labeled a spy and has physiological reactions that trigger a false reading on the polygraph.
This type of manipulation is the exact reason polygraph results remain inadmissible in court. Polygraph machines are notoriously unreliable and unethical examiners can manipulate the results. It is beyond question that NCIS agents engaged in unethical conduct in this case. The fact that this conduct extended to the administration of polygraph examinations should come as no surprise.
B. Coercive and Illegal Interrogation TechniquesThe interrogation techniques utilized by NCIS agents to obtain a confession by CTR1 King were abusive, unconstitutional, and reminiscent of the practices from decades past that courts and experts have found tend to produce false confessions. The length of the interrogations make the confessions inherently suspect. The NCIS agents kept CTR1 King in a state of custody they have alternatively called "conditions of liberty," "close surveillance" and "loose surveillance."
The intrusive, threatening, and illegal form of custody employed by these agents placed CTR1 King in a coercive and inescapable environment in which he was essentially subjected to custodial interrogation 24 hours a day seven days a week for 26 days. He would spend every waking minute with NCIS agents. They would wake him up in the morning, monitor him while he took a shower, take him to breakfast, take him to their office for interrogations, take him back to a safe house in the evening, monitor him while he slept, monitor his phone calls to his family, require that he obtain permission to call his daughters or mail a letter, and then start the process over again the next day. One agent told CTR1 King that he would shoot King if he tried to run away. Agents prominently displayed their firearms whenever they took CTR1 King outside the safe house. Agents made notes of everything CTR1 King might say that they felt they could later use in a prosecution, including expressions of hopelessness or fatigue at the process. Thus, in one sense, CTR1 King was interrogated every waking minute of every day for 26 days. The only time he was not directly confronted with one of his interrogators and antagonists was when he was asleep. This would create a situation in which an individual would not be able to mentally or physically relax, thereby making it easy for interrogators to overbear his will.
The NCIS agents denied CTR1 King the important respite of sleep, perhaps because they recognized that sleep was the only time CTR1 King could escape their presence and questions. SA Hyter acknowledged CTR1 King's fatigue in one of the earlier interrogation sessions recorded by NCIS, but he insisted on pursuing the interrogations and polygraphs anyway. The sleep-deprivation techniques continued when NCIS took statements from CTR1 King. The best example of this technique and its results is the statement signed by CTR1 King in the early morning hours of October 6, 1999. This was the statement Navy prosecutors felt established the crime of espionage and according to the prosecutor, Commander (CDR) Lara L. Jowers, was the only statement she ever intended to offer at the Article 32 hearing.
The uncontradicted facts are that the interrogation session leading to this statement began at approximately 8:30 a.m. on October 5, 1999, but the statement was not signed until 3:30 in the morning the following day - an interrogation period of 19 hours straight. This followed more than an entire day of interrogation the previous day from which CTR1 King did not return to the safehouse until 12:20 am on October 5, 1999. He was allowed to eat dinner between 12:22 a.m. and 12:26 a.m. (four minutes) before going to bed at 12:30, only to start the process over again at dawn on October 5.1 CTR1 King denied the veracity of the October 6 statement at the next interrogation session and almost every subsequent interrogation. Military judge serving as investigating officer, CDR James Winthrop, evaluated the weight to be given this statement came to the only conclusion consistent with logic and Supreme Court precedence; that a confession obtained under these conditions is inherently suspect and probably the result of coercion. The confession was obviously CTR1 King's effort to say whatever it took to end the interrogation.
1 The NCIS public affairs office apparently provided log sheets from the interrogations of CTR1 King to the media. These logs were never provided to defense counsel even though they reflect highly coercive techniques. The defense had been unable to obtain these documents despite numerous discovery requests going back almost 500 days. It took less than a week to provide the information to CBS News.In addition to depriving CTR1 King of sleep, the agents would threaten him and his family. During one interrogation, SA Hyter learned that CTR1 King is very close to his family, especially his daughters. He then told CTR1 King that he must come up with an explanation for his inability to pass the polygraph examination, or NCIS agents would be forced to interrogate his family in the same manner in which they were interrogating CTR1 King. This caused CTR1 King to state that he committed a security violation. Clearly excited, SA Hyter then asked for details of the violation but CTR1 King had to tell the agent that he could not provide details because the incident did not happen. He went on to explain that he was just telling SA Hyter what he wanted to hear so they could finish the interrogation. This clearly angered SA Hyter, who launched into an insulting monologue in which he accuses CTR1 King of suffering from mental illness. At a later interrogation, SA Helen Sherry told CTR1 King the he must confess to espionage or "black operations" people would go after his family. She did not elaborate on this, but CTR1 King recognized the unmistakable threat.
Much has been made in various media reports regarding the NCIS forcing CTR1 King to make confessions regarding his dreams and fantasies. CTR1 King's earliest signed statements refer extensively to thoughts and fantasies but not actual criminal acts. In the taped interrogations and according to reports by the few NCIS agents who were willing to talk to defense counsel, it is clear that the agents encouraged CTR1 King to talk about dreams and fantasies. In an interview with defense counsel, SA Hyter relayed that he explained to CTR1 King that such fantasies and dreams of espionage were common among people who worked in the intelligence community. SA Hyter stated during his October 2, 1999 interrogation that if CTR1 King had thoughts or visions about something then they must have been true. After weeks of these tactics combined with an ongoing practice of sleep deprivation and constant questioning and monitoring, CTR1 King reached a point where he could no longer distinguish between fantasy and reality. CTR1 King requested hypnotism or drugs to establish whether the statements he had made to agents were fantasies or reality. He repeatedly complained that agents were pushing him into talking about espionage fantasies and that these thoughts were not true. The agents responded by pushing the discussion forward until they obtained an admission of guilt based on these fantasies. CTR1 King would then deny the admission in his next statement or interrogation session. This process continued with predictable regularity from the date he made his first statement, through the date of his final interrogation in the brig at the hands of NCIS agents and Navy prosecutors.
It is clear that NCIS agents were perfectly willing to take whatever steps necessary to secure an admission of guilt by CTR1 King. They agents were so desperate for an immediate confession that they completely ignored applicable national security rules and regulations and committed breaches of security there were ironically more serious than some of the offenses for which CTR1 King was eventually charged. Early in the interrogation process, CTR1 King expressed hesitancy over discussing classified information with his interrogators. Instead of taking the required steps to establish their clearance levels, the agents lied to CTR1 King and assured him they were appropriately cleared. The agents then insisted on proceeding. The agents do not seek to determine what programs CTR1 King is familiar with or what information might be disclosed in response to their questions regarding his work and his background. Rather, they insisted he reveal Top Secret/Sensitive Compartmentalized Information (TS/SCI) in uncleared areas to uncleared agents. They then prepared statements and reports of these interviews on uncleared computers and distributed them to other uncleared agents.
Eventually, an agent familiar with the classified programs at issue in the case became involved, yet the NCIS still failed to take any steps to protect the information, and, in fact, continued to operate as if they were above the law. They engaged in serious breaches of national security regulations. One particular violation of national security law was especially flagrant, egregious, and very dangerous. SA Stewart Wilson and SA Helen Sherry showed a videocassette to CTR1 King as an investigative technique designed to get him to confess. The videotape apparently is a dramatization that involves detailed discussion of TS/SCI material from at least three different Special Access Programs. Under applicable law, the tape could only be played on cleared equipment in a SCIF certified by the applicable programs. Only one of the agents involved in the case had the clearance necessary to view the information contained on this tape. He was not even present for this exercise. Nonetheless, the uncleared agents somehow obtained the tape and decided to use it as an interrogation technique. They played this tape for CTR1 King in the Homewood Suites Hotel in Arlington, Virginia. The agents then insisted CTR1 King talk about the contents of the tape and sign a written statement about the tape typed up on an uncleared computer and printed in the same hotel room.
When defense counsel learned of the existence of the tape, we immediately told the government that it might contain program information, and if so was not being stored properly. This warning went unheeded for months. Only after repeated insistence did members of the program offices evaluate the tape and determine that it did in fact contain TS/SCI information.2
2 When asked on cross examination if he knew about the existence of the tape, one program expert testified that he was sure he would know if such a thing existed and stated that one did not. He was confident that no one cleared for his program would make such a tape without permission and that he would never give that permission.This pattern of abusive interrogation techniques combined with a blatant disregard for national security regulations reveals a rogue agency that considers itself above the legal and constitutional standards it was created to enforce and protect. Prior Congressional inquiry into NCIS interrogation practices did nothing to deter the agency from violating CTR1 King's rights on a daily basis for almost a month.
C. NCIS Disregarded CTR1 King's Invocation of Constitutional RightsThe Navy has tried to paint a picture of CTR1 King as a man who voluntarily waived all his rights and provided statements to his interrogators free of coercion or influence. This version of events ignores several important facts. First, it fails to comport with an application of simple logic to the uncontested facts. If CTR1 King actually waived his rights and cooperated to the extent suggested, why did agents need to interrogate him for an entire month? Once CTR1 King cooperated and gave a statement, that should have been the end of it. The only explanation is that CTR1 King was simply making statements in an effort to end the process, but when NCIS agents established that these statements were factually untrue or even impossible, they felt the need to get another statement.
Second, the agents ignored CTR1 King's assertions that he wanted the interrogations to stop. During the October 2, 1999 interrogation session, CTR1 King tells SA Hyter he is making things up to please the agent so they can get through with the interrogation. He attempts to tell SA Hyter that since he is not conveying truthful information the interrogation "should just st . . " SA Hyter cuts him off before he can finish the word stop. Whenever CTR1 King attempted to halt the interrogation, or expressed fatigue or a desire to be done, the agents would cut him off and not let him finish his complaint or request. When it became clear that the agents would not permit CTR1 King to stop the interrogations, he was left with no choice but to provide statements that would satisfy his antagonists, even though he did not believe them to be true.
Third, agents ignored CTR1 King's efforts to obtain an attorney. CTR1 King clearly asked for an attorney and the agents refused to let him have one. CTR1 King signed two polygraph rights warning forms on October 8, 1999. One of these forms states that CTR1 King earlier raised "the possibility of speaking with an attorney" but for some unexplained reason no longer wished to speak with one. 3
3 As this rights warning was signed first thing in the morning, this discussion regarding the attorney must have taken place during the previous interrogation session on the 5th and 6th of October, the date of the statement serving as the basis for the espionage. Indeed, that statement, which was prepared by SA Stewart Wilson contains a reference to CTR1 King's request for a lawyer.Once a person subject to an interrogation raises his desire to speak with an attorney, all questioning must stop and he must be provided the opportunity to obtain one. Edwards v. Arizona, 451 U.S. 477 (1981). Raising the possibility of speaking with an attorney is equivalent to saying, "Can I talk to a lawyer?" This is an unequivocal invocation of the right to counsel. See Smith v. Endell, 860 F.2d 1528, 1531 (9th Cir. 1988) cert. denied 498 U.S. 981 (1990); see also Alvarez v. Gomez, 185 F.3d 995, 998 (9th Cir. 1999). Following such a statement the interrogators must not make any statement other than "yes" and provide the suspect the opportunity to speak with counsel. The interrogators may not try to discourage discussion with a lawyer.4 The NCIS agents refused to comply with the request, thereby making all subsequent statements the product of coercion regardless of how many rights forms they forced CTR1 King to sign. See Arizona v. Roberson, 486 U.S. 675 (1988). An explanation of rights is of no value if the agents then fail to honor those rights.
4 Apparently when CTR1 King asked if he could speak with a lawyer, SA Wilson responded, "the only way you are getting through this is through us. Besides what are they going to give you? Some [Navy] lieutenant or [Marine] Captain? I eat twenty of them for breakfast" or words to that effect.Even if CTR1 King's first invocation of his right to counsel was not clear enough for the NCIS agents to comprehend, the written rights forms of October 8, contain two undeniably clear invocations of the right to have a lawyer present during questioning. The two forms signed by CTR1 King on October 8, 1999 both read "I do desire to have my lawyer present during the polygraph examination." Despite this unequivocal request, no lawyer was provided.5
5 In the military system, CTR1 King should have been provided a lawyer at this juncture. Unlike the civilian system, there is no requirement that formal charges be filed against an accused before he is entitled to representation at government expense. All service members are entitled to representation by qualified military counsel immediately upon invocation of their counsel rights during interrogation. Had this invocation been conveyed to the local Naval Legal Service Office by the NCIS agents, a defense counsel would have been made available immediately.Thus, CTR1 King's attempts to stop the interrogations had been denied earlier in the week, his attempts to speak with a lawyer were denied, and now his attempts to even have a lawyer present during questioning were denied. This left CTR1 King no option. He had been removed from his home and told he could not go back. He was held under armed guard and monitored 24 hours a day by his own government. CTR1 King's only possibility of ending his interrogations was to give the agents what they wanted in the hopes they would eventually transfer him to the custody of some other entity that would comply with his constitutional rights, allow him to speak with an attorney, and permit him to present the true facts to an impartial party.
D. Agent Actions Toward Other Witnesses and FamilyThe NCIS Special Agents continued to ignore the Constitution, national security regulations, and standards of ethical conduct even in their interviews and investigations outside the presence of CTR1 King. The agents would violate the law and blatantly lie to civilians and military personnel alike to gather any type of evidence they could against CTR1 King.
The practice of ignoring national security law and procedures continued throughout the NCIS investigation. Based on an assessment of the prepared reports, at least 65 NCIS agents participated in the investigation of this case. Despite the fact that at least one participating agent knew the nature of the programs involved and the level of classification of the information at stake, no steps were taken to ensure that other investigators who were likely to be exposed to information had the proper clearances. Agents were sent to interview coworkers regarding classified discussions they had with CTR1 King in the past. They demanded to know the substance of those conversations. They then classified this information as Secret. When security specialists from the various program offices finally looked at the reports and statements generated by the NCIS agents, they found hundreds of instances of misclassification. There were literally dozens of documents containing TS/SCI information that the NCIS had labeled Secret that were prepared and reproduced outside SCIFs on uncleared equipment. When the defense raised this issue with program officials during their Article 32 testimony, they stated they were unaware of any steps towards corrective action taken to address these violations. One witness simply stated it was the Navy's intent to wait until after the case was over to tie up these loose ends. This clear violation of national security regulations meant that uncleared persons have been in possession of TS/SCI information for 16 months without the Navy taking any steps to ensure that the information is not further disseminated. Some of these individuals no longer work for the federal government and have refused to speak with defense counsel or government representatives regarding their role in the investigation of this case.
In its dealing with witnesses, NCIS agents engaged in a pattern of reprehensible and unethical conduct. NCIS agents directed a considerable amount of this hostility towards CTR1 King's family. According to NCIS reports, agents interviewed CTR1 King's former wife, his two daughters, sisters, and his brother-in-law "under the pretext of a routine background investigation." This was an outright lie. Even more troubling than these lies are the attempts by agents to interview CTR1 King's minor daughter, Melissa King, outside the presence of her mother. This happened after CTR1 King had been placed in the brig. At the time, Melissa was only 15 years old and living with her mother in Virginia Beach, Virginia. Mrs. Jill King had made it very clear to the agent, SA Kelly Murphy, that she did not want Melissa to be interviewed without Mrs. King's consent and presence. SA Murphy was undeterred. She attempted to meet Melissa after school before her mother got home. Melissa said she did not want to talk. SA Murphy eventually gave up when Mrs. King told her she would be contacting a lawyer about the harassment.
The illegal practices of the investigating agents were not limited to attempts to intimidate children. In their never-ending but ultimately futile quest to obtain any type of independent evidence of wrongdoing by CTR1 King the agents ignored national security regulations. They would ask CTR1 King's former coworkers to relate conversations they had with him that the coworkers at times thought were outside their need to know or clearances. The NCIS agents found two former co-workers to make such statements, Lieutenant Junior Grade (LTJG) Mary C. Lewis, Nurse Corps, U.S. Navy, and Major (Maj.) Kathleen Heverly, U.S. Air Force. Each relayed a single instance years earlier in which CTR1 King may have made an obscure reference to something for which she was not cleared. The investigating officer found the evidence to support these charges to be remarkably weak and not worthy of pursuing at a court-martial.6
6 The Investigating Officer found that the charges arising out of these incidents was not supported by the evidence and that memories of these two witnesses of a single event each from years earlier would not be terribly reliable. In addition, the defense never had an opportunity to cross-examine these witnesses or even determine the proper level of classification for the material they claim CTR1 King discussed. Had we been able to, we are confident we would have been able to establish that LTJG Lewis who was an enlisted cryptologist with a TS/SCI clearance at the time of the incident did, in fact, have the appropriate clearance level to hear the discussion. Maj. Heverly, who also had a TS/SCI clearance at the time, was CTR1 King's supervisor. She claimed that CTR1 King relayed information related to her job for which she was not cleared (a juxtaposition that we looked forward to exploring on cross-examination) by reading the expressions on CTR1 King's face.The NCIS pursued these charges with tremendous vigor in the hopes of finally getting some outside evidence of wrongdoing by CTR1 King. Ultimately they failed, but in their zeal the agents completely abandoned the guidance of national security law. The appropriate course of action upon hearing that a coworker may have heard something for which she was not cleared would be to call in an agent cleared for the same Special Access Programs as CTR1 King. That agent could then ask LTJG Lewis or Maj. Heverly about the discussion. If it turned out the discussions did contain information for which either LTJG Lewis or Maj. Heverly was not cleared, then the agent would then have her sign a non-disclosure or inadvertent disclosure agreement to ensure the material was adequately protected. Instead, agents not cleared for any of the programs involved in the case elected to take a statement from the witnesses immediately. LTJG Lewis was not asked to sign any type of non-disclosure agreement regarding the information until the defense asked to see such an agreement before she testified and was subject to cross-examination about the information.
E. Continued Obstructionist Tactics Following Confinement and Preferral of ChargesEven after NCIS relinquished custody of CTR1 King and placed him in the brig at Quantico, Virginia, the agency continued its practice of violating national security laws and began a pattern of obstructing defense access to evidence in the case. NCIS agents continued their pattern of lying by providing false information to defense counsel, the investigating officer, and the public.
Once CTR1 King was placed in the brig and charges were preferred, NCIS provided reams of documentary evidence to the prosecution who in turn provided a copy to the defense. In a clear violation of national security law, NCIS agents decided to label every single document Secret. This blatant overclassification was either an attempt to prevent the public from ever hearing about their practices, or was a simple desire to avoid the time-consuming task of correctly labeling the individual documents. Either way, this overclassification violated national security rules and regulations. Overclassification is as serious a violation of law as underclassification. The documents provided by NCIS contained scores of examples of both.
A few examples will suffice to demonstrate the absurdity of the classification of this material. The Secret documents included a photocopy of a birthday card and envelope that CTR1 King sent his daughter while he was held at the safehouse in Guam. The card was made by Hallmark and contained the writing, "Love ya, Dad." The NCIS also classified an exact copy of CTR1 King's service record, an unclassified document seen by dozens if not hundreds of Navy personnel in administrative positions throughout CTR1 King's naval career. The contents of CTR1 King's wallet were photocopied and labeled Secret, to include his Blockbuster video card, his ATM Card, his Ohio driver's license, his military identification card, and a discount card for the Food Lion supermarket.
In addition to these examples of overclassification, the NCIS underclassified dozens of documents containing TS/SCI material as merely Secret. The failure to properly classify material led to months of delay in the proceedings as the parties were forced to evaluate every line of every document to determine its true classification level. Additionally, the underclassification led to unauthorized disclosures, improper storage, improper reproduction, and the potential compromise of far more TS/SCI information than CTR1 King was ever accused of disclosing.
This practice of arbitrary and reckless classification continued even into the Article 32 proceedings. An expert from NCIS testified at the Article 32 hearing regarding the proper classification of evidence under NCIS purview. His testimony was internally inconsistent and did not reflect the markings on the documents. He then refused to be cross-examined as to what information in a particular document was actually classified, and refused to return to the hearing to clarify inconsistencies between his prior testimony and the classification guidance manual. His testimony left such a degree of uncertainty as to the proper classification of the material that the investigating officer instructed his assigned security officer to contact NCIS to determine if several items marked unclassified were now considered classified. This included a videotape depicting a meeting between CTR1 King and NCIS psychologist Michael Gelles. The security officer relayed in the hearing that when she called NCIS on this issue, she was directed to speak with LT Mindi Seafer of the NCIS legal office who told her the tape was to be considered classified.7 The defense objected to this change but secured its copy of the tape as required by the applicable regulations. We objected to LT Seafer's qualification to make this decision and demanded a review of this arbitrary decision. NCIS never informed the defense that the tape had returned to its original unclassified status. Instead, it simply released the tape in its entirety to the media. National security regulations require that all holders of information be immediately informed of a change in classification, either up or down. NCIS violated this provision as well.
7 By this point LT Seafer had left her position as a prosecutor to work as a staff attorney for NCIS. She remained on active duty in the Judge Advocate General's Corps but was serving as a legal advisor to an entirely civilian entity. She is not a security expert and is wholly unqualified and not authorized to provide guidance or make decisions on the classification of information. In addition, the investigating officer had already identified her as a witness for the proceedings based on the defense request to examine her regarding her unethical and unconstitutional interrogation of CTR1 King in which he made exculpatory statements.Even after the dismissal of charges, NCIS has engaged in unethical and illegal conduct. First, NCIS Director Brant reportedly made statements to the media regarding this case that were blatantly false. He told reporters in a written statement that the polygraph examinations were conducted in accordance with Department of Defense regulations. As shown above, this was untrue. The examinations were often not recorded and were conducted under conditions likely to produce unreliable results. An even more troubling are the assertion by the Director that NCIS agents did not have any contact with or interrogate CTR1 King after he was placed in the brig on October 28, 1999. This is patently untrue. On October 31, 1999, SA Kenny Rogers accompanied the two prosecutors in the case at the time CDR L. Lynn Jowers and LT Mindi Seafer, to the brig to interrogate CTR1 King. SA Rogers is one of the supervisory agents in charge of the counterintelligence section. He personally questioned CTR1 King during that session and even briefly questioned him outside the presence of the two prosecutors. In an interview by defense counsel and witnessed by an impartial Lieutenant who is a staff member of the Navy Marine Appellate Review Activity, SA Rogers confirmed the existence of the interview and the fact that CTR1 King made exculpatory statements during this session. Indeed, he could not deny the meeting because defense counsel had obtained a copy of the brig visitor log-in sheet for that day indicating that SA Rogers, CDR Jowers, and LT Seafer had signed in to conduct an interview.
Finally, NCIS agents have engaged in obstructionist tactics preventing defense counsel from gaining access to evidence or witnesses. The two primary investigating agents in the case, SA Helen Sherry and SA Stewart Wilson, refused to talk to defense counsel except under very specific and bizarre conditions. SA Wilson refused to answer any of Professor Turley's questions. He said he would only answer questions from me. This attitude was consistent with his earlier statements to CTR1 King when he asked for a lawyer that he eats 20 JAG lieutenants for breakfast. Moreover, the agents refused to talk with defense counsel outside the presence of their legal advisor, LT Mindi Seafer. At the time LT Seafer was uncertain of her own role in the case. She was not sure whether she was still a prosecutor or an attorney for NCIS agents. The defense was confident that if nothing else, her interrogation of CTR1 King at the brig in which he made exculpatory statements made her a witness. The defense obviously refused to question one witness in the presence of another and could not interview SA Wilson or SA Sherry.
In sum, the NCIS agents involved in investigating and formulating this case engaged in a series of illegal, unconstitutional and unethical practices. Had these violations been committed by an enlisted service member such as CTR1 King, they would surely face criminal charges. The agents apparently recognized they did not have a spy but were willing to bend or break whatever law or regulation got in their way to manufacture a case against CTR1 King. The scope of fraud, waste and abuse at hands of the NCIS that is revealed in the short supply of evidence provided to the defense is staggering. An indepth investigation of the agency and its practices is necessary to truly gauge the extent of its illegal and abusive practices. Actions must be taken to ensure this agency acts consistent with the U.S. Constitution and federal statute passed by Congress.
III. CONSTITUTIONAL VIOLATIONS AND ABUSES BY NAVY PROSECUTORS
Unfortunately, the constitutional violations and abuses did not stop when NCIS turned the case over to the prosecution. The government attorneys violated CTR1 King's rights in their investigatory tactics, in failing to take the steps necessary to conduct a meaningful hearing, in concealing exculpatory evidence from defense counsel, and in making false statements to military appellate courts, opposing counsel and the investigating officer. Professor Turley will address many of the issues related to the actions of the prosecution in this case. I will limit my discussion to the constitutional violations and abuses of authority revealed during the course of the proceedings. These violations fall into five areas: 1) violation of 6th Amendment rights to counsel; 2) concealment of evidence; 3) false statements to courts and opposing counsel; 4) tactics resulting in the denial of the right to a speedy trial for CTR1 King; and 5) violations of national security law and regulations.
A. Violation of the Right to CounselAs established above, CTR1 King unequivocally requested counsel. Any further interrogation with CTR1 King's lawyer present, whether it was later the same day or weeks later, was unconstitutional. This is a simple, bright line principle of law that every practitioner of criminal law should know. The two Navy attorneys assigned to prosecute the case. CDR Jowers and LT Seafer, elected to interrogate CTR1 King themselves despite 26 days of interrogations by trained NCIS investigators.8 In the company of an NCIS agent Rogers, CDR Jowers and LT Seafer interrogated CTR1 King regarding the alleged offenses and his confessions. This interrogation violated Edwards v. Arizona, and was unconstitutional as a matter of law.
8 It is difficult to imagine why these two officers felt the need to take this extraordinary step. No matter what CTR1 King said at the interrogation it would probably require the two prosecutors to be witnesses at any subsequent trial, which would disqualify them from acting as prosecutors. If CTR1 King had made incriminating statements they would be called to testify regarding that statement. On the other hand, if, as actually happened, he made exculpatory statements, they would be called by the defense to testify to those statements.The convening authority also violated CTR1 King's right to counsel by imposing a monitoring agent over defense communications. This agent was to monitor all communications between individuals with different clearance levels. Because we all had different clearances at the time, this meant the monitoring agent would monitor communications among counsel and between CTR1 King and his attorneys. The convening authority stated that the purpose of this requirement was to insure that no classified information would be revealed to unauthorized persons. However, the Court of Appeals for the Armed Forces found that this restriction was not the least restrictive means available for protecting classified information and forbade the government from proceeding with this barrier in place. The court found that tasking a government agent with reporting the contents of attorney-client discussions back to the convening authority was intolerable under the Constitution. The government then spent months obtaining security clearances for defense counsel instead of removing the monitoring requirement.
Once LT Freedus, Prof. Turley and I all had the same clearance levels, the convening authority removed the requirment without explanation. Any additional uncleared counsel or experts added to the defense team would be able to communicate freely without a monitoring agent. This complete reversal in position demonstrated that the months of litigation surrounding the monitoring agent issue were a complete waste of time and that the government was not trying to protect information as previously argued. Finally, it is worth noting that the agent the government selected to monitor the defense conversations was a material witness to some of the underlying events at issue and would have a personal interest in the outcome of the case.
B. Concealment of Exculpatory EvidenceThe weakness of the government's case is demonstrated not only by the lack of corroboration of CTR1 King's statement, but also by the existence of strong evidence indicating he did not commit espionage. Despite the existence of this evidence, the government pursued its case in the apparent hope that the defense would not find it. The prosecution in this case repeatedly failed in its affirmative duty to provide the defense with the exculpatory evidence in its possession. The Supreme Court imposes the duty on all prosecutors to immediately turn over all evidence that tends to negate the guilt of the accused as soon as that evidence comes into their possession. No request or demand for production is required by the defense. Brady v. Maryland, 373 U.S. 83 (1963); United States v. Bhutani, 175 F.3d 572, 576 (7th Cir. 1999). CDR Jowers and LT Seafer not only failed to provide the evidence of their own accord, but also failed to provide, or denied the existence of, exculpatory evidence when specifically asked for it.
The first such example of the failure to provide this evidence to the defense came from the interrogation between CDR Jowers, SA Rogers, LT Seafer and CTR1 King. SA Rogers confirms that CTR1 King made exculpatory statements at that session. CTR1 King apparently told the prosecutors that he could not remember committing the acts to which he had confessed and that he did not know whether it was reality or fantasy. Such denials following so closely after a signed confession and made to the first non-NCIS personnel he had spoken to in weeks is highly exculpatory. CDR Jowers and LT Seafer had an affirmative duty to immediately provide that information to defense counsel. SA Rogers told defense counsel of the exculpatory statements when interviewed weeks later, but when the investigating officer asked CDR Jowers about CTR1 King's statements, she professed an inability to remember them. Later still, CDR Jowers relayed that LT Seafer told her she also could not remember the statements in question.
On two other occasions, the government failed to provide similarly exculpatory and contemporaneous statements of CTR1 King. One is a video tape in which CTR1 King is asking an NCIS psychologist for truth serum or hypnosis to determine whether or not he committed the acts to which he confessed but, in actuality, had no memory of committing. The other is a series of audio tapes of the first of the polygraph examinations and interrogations of CTR1 King by SA Hyter. These tapes demonstrate that CTR1 King was simply telling the agents what he thought they wanted to hear so the interrogations would stop. LT Freedus discusses his discovery of this evidence in greater detail, but the obligation to provide the information to defense existed as soon as the government became aware of these items: in other words, as soon as the tapes were provided to the prosecution in December of 1999. When we learned of the tapes' existence, we immediately demanded production of the tapes in a form presentable to the investigating officer and at a public hearing. We did not receive them until February 9, 2001. We repeatedly highlighted the exculpatory nature of this evidence to the investigating officer and within a month he recommended dismissal of all charges.
C. False Statements to Courts and Opposing CounselThe prosecutor and Force Judge Advocate (FJA) for the convening authority, CDR Mark Newcomb, repeatedly made false statements to courts, defense counsel and the investigating officer. The false statements undermined the justice process and caused unnecessary delay. There are far too many false statements to list them all from memory. I have documented all such statements in my classified notes and will provide them in detail once the defense is again provided access to our notes. Many of the statements and the supporting evidence will appear clearly in the record of the Article 32 proceedings. However, some examples of the false statements serve to illustrate how these tactics prejudiced CTR1 King and ultimately contributed to the dismissal of charges in this case.
First, both CDR Newcomb and CDR Jowers claimed in August of 1999 that the defense never requested a classification review of the evidence in this case. CDR Jowers made this statement orally to both LT Freedus and me, while CDR Newcomb made this claim in writing and refused to withdraw it even when it was submitted to the military appellate courts. The assertions by both were baffling as the defense had no less than 22 documented requests for declassification or reclassification of the overclassified evidence.9 In fact, CDR Jowers acknowledged these requests in an affidavit she submitted to the Court of Appeals for the Armed Forces. She also stated as early as January 2000 that she had requested that the information be declassified. Later testimony by security experts established that no such request or effort was made to reclassify the documents in the case until the Fall of 2000, a year after CTR1 King was taken into custody. 10
9 As Professor Turley discusses in his testimony, it is irrelevant whether or not the defense made such a request. Before the government could proceed with its case and the presentation of evidence it would have to make sure all the material was properly classified so all parties could know what could be discussed in open session and what would have to be kept in closed session. Even after 520 days the government never completed this process and was still unprepared to go forward with its case on the day charges were dismissed.Second, CDR Jowers responded to defense requests for potentially exculpatory evidence by stating that the evidence did not exist. On October 11, 2000, LT Freedus and I submitted a classified production request asking for, among other things, a copy of any risk assessments in the case. On November 1, 2001, CDR Jowers responded that no risk assessment had been done. Shortly thereafter, the security officer assigned to assist CDR Jowers in the preparation of the case was called as a witness to discuss his marking of classified documents in the case. He relayed that he had performed a risk assessment as early as December 1999 or January 2000. CDR Jowers was not at all surprised by this testimony, and before the defense had a chance to raise the issue with the investigating officer, indicated that she knew the defense would complain about her prior written response that no risk assessment had been done. The investigating officer then ordered CDR Jowers to produce any and all risk assessments for review and possible use by the defense, a process that certainly would have caused additional delay had the charges not been dismissed before she complied with the order.
10 This was part of a larger pattern in which CDR Jowers failed to act with due diligence in executing her duties as prosecutor in this case. She not only failed to ensure all the evidence in the case was properly classified prior to the commencement of hearings, she also failed to examine the evidence in her possession. She failed to review crucial evidence prior to launching an espionage case and informing NCIS that she would be able to prosecute CTR1 King. In an exchange recorded as part of the Article 32 hearing, CDR Jowers states that she had "never even seen" the log that the government would later claim served as the sole piece of corroborating evidence to support CTR1 King's confession. This exchange took place approximately one year into CTR1 King's confinement. Thus, CDR Jowers pursued a potentially capital case without any awareness of a single piece of corroborating evidence to support CTR1 King's confession. It is worth noting that the investigating officer found the log to be insufficient to meet even the slight level of corroboration needed to consider a confession as evidence.
CDR Jowers' security officer testified because CDR Jowers gave false information to the investigating officer regarding the role performed by the security officers in the classification of evidence. CDR Jowers chose to use the prosecution security officer as well as the two security officers assigned to the investigating officer to review and mark the classification level of the documents in the case. This tactic essentially changed these individuals from neutral officers assigned to help with physical security into witnesses. CDR Jowers told the investigating officer that these security officers had merely placed the classification markings on the documents under the direction of someone else, and had not made any independent judgments as to the proper level of classification. In essence, they had acted as nothing more than human pencils. Because it would be improper for witnesses to hear the testimony of other witnesses, the investigating officer agreed to let the defense question the security officers to determine the true scope of their involvement in classification before calling any additional witnesses. As soon as these individuals took the stand, they immediately contradicted CDR Jowers and stated that they personally determined the level of classification of documents or provided their opinions to others regarding the appropriate classification. The process of examining these security officers wasted a day of hearings that could have been saved if CDR Jowers had accurately conveyed the scope of their participation in the classification process. In addition, more time was lost when the convening authority had to find a replacement security officer to serve as security assistant to the investigating officer.
These false statements and others demonstrated the lack of a good faith effort to pursue this case with any kind of due diligence. Months of CTR1 King's life were wasted as the courts, the investigating officer, and the defense had to debunk the false statements and create mechanisms to mitigate the damage already done.
D. Tactics Causing the Denial of the Right to a Speedy TrialMany of the actions discussed above had the consequence of delaying the case to the point where prosecution became a legal impossibility under the Speedy Trial protections of the Uniform Code of Military Justice, the Constitution and the Rules for Court-Martial. The government's imposition of constitutional barriers to representation and a public trial combined with the inability to proceed in an orderly or coherent manner led to inexcusable delays. However, the convening authority and his FJA engaged in remarkable abuses of discretion and actually excused the prosecution of responsibility for delays that kept CTR1 King in jail for more than 15 months without a formal charge and denied CTR1 King of his right to a speedy trial.
Regardless of the individual acts of the government that lead to almost a year of delay before the first hearing commenced, the government was completely unprepared to go forward with its case until January 2001. This was the date of the final classification review, a necessary prerequisite to the commencement of meaningful proceedings. Taking more than a year to perform an adequate classification review of a relatively small number of documents demonstrates the prosecution's complete lack of due diligence in pursuing this case.
The convening authority essentially placed the burden of this lack of diligence on CTR1 King. Under Rule for Court-Martial 707, the government has 120 days to bring a person held in pre-trial confinement to trial (i.e., arraignment). However, the convening authority can exclude time from the government's accountability under the 120-day clock for such things as defense continuance requests. In essence, the convening authority can allocate blame for delay to either the government or the defense. The convening authority in this case encouraged CDR Jowers lack of diligence by excluding periods of delay no matter how outrageous the request. He excluded periods in which the prosecutor was simply unavailable for unexplained reasons, or when she was unable to find a Sensitive Compartmentalized Information Facility (SCIF) in which to hold the hearing. He excluded delays despite vociferous defense objections and requests to go forward immediately. He excluded delays to allow the government time to gather evidence for the defense but then refused to grant the defense time to review the evidence.
The government's failure to act with due diligence to bring this case to trial deprived CTR1 King of his statutory and constitutional rights to a speedy trial. The defense was confident that these failures ultimately would have prevented the case from ever being prosecuted. Clearly the convening authority recognized this situation as well. He tried to salvage what was left of the government's speedy trial case by excluding delay in an artificial and prejudicial manner.
E. National Security ViolationsIn its blind pursuit of prosecuting this case, the government representatives tossed aside national security law and regulations. At the same time that they were prosecuting CTR1 King for violations of national security regulations, the prosecutor and her expert witnesses were committing far more serious violations on a daily basis. These violations are clearly laid out in Professor Turley's prior correspondence with Chairman Shelby and CIA Director George Tenet. Additionally, the complete details of the violations are contained in my classified notes and in the recordings of the Article 32 proceedings. However, I will present an outline of some of the more salient violations that took place during the proceedings.
CDR Jowers consistently resisted defense counsel's objections to improper security procedures or attempts to identify security violations. She consistently argued that all such violations could be addressed at some unspecified time in the future in some forum other than the Article 32. She even refused the defense request to provide evidence of the clearance levels of all witnesses, spectators, and participants until ordered to do so. The controlling national security regulations do not permit TS/SCI clearance holders to resist and complain about another clearance holder raising security violations. These violations should always be raised and dealt with immediately.
The prosecution adopted a similarly laissez-faire attitude toward security procedures as had NCIS. CDR Jowers and LT Seafer both personally overclassified evidence despite the fact that they did not have the experience or authority to do so. CDR Jowers discussed TS/SCI information with LTJG Lewis even though LTJG Lewis did not have any type of security clearance whatsoever. CDR Jowers even brought LTJG Lewis into a SCIF to testify without telling the investigating officer or opposing counsel that LTJG Lewis did not have a clearance and that we should cover all classified information. CDR Jowers failed to ensure that documents were properly marked before distributing them. In one instance she placed a signed statement of LTJG Lewis into LT Freedus's inbox in the public area of the NLSO defense wing. This area is freely accessible to attorneys, staff and even clients. Months later and without warning or explanation, the Navy decided that this statement was Secret.
Perhaps the most troubling aspect of these national security violations is the refusal of the prosecution, the convening authority, or even program officials to act to cure confirmed violations. Government security experts swore under oath that they had committed security violations. One very senior program official, Ms. Mary-Rose McCaffrey, admitted that she lied under oath and that she was personally responsible for almost a dozen security violations. She confirmed that the violations were at least sufficient to warrant a review of her clearance. To my knowledge, CDR Jowers and the convening authority have done nothing to report these and other admitted violations. As representative of the U.S. government they both have a responsibility to report and ensure that these issues are investigated. Instead, the defense counsel must push for investigation while the prosecution and convening authority apparently hope the whole case will go away.
The government's attempt to prosecute CTR1 Daniel King was a desperate attempt to manufacture a spy case where there was none. The NCIS took a person who had a very common indeterminate result on a polygraph examination and, through weeks of threats, sleep deprivation, and denials of constitutional rights molded him into someone they could coerce into signing a false confession. In order to do so, NCIS abandoned all semblance of a professional investigatory agency and violated the Constitution and law. They lied, they attempted to intimidate children, and they showed a blatant disregard for controlling national security law. The agents were undeterred by the evidence indicating that CTR1 King did not commit espionage. This was probably the biggest potential case of their careers, and they were determined to have a spy.
This mindset continued with the prosecution. CTR1 King's constitutional rights as well as the national security regulations he was charged with violating fell by the wayside as prosecutors sought every possible avenue toward conviction. The government actively prevented the defense from obtaining evidence tending to demonstrate CTR1 King's innocence and did not even review the evidence they would later claim established his guilt. This was the blind pursuit of a prosecution at all costs.
That such abuses were allowed to persist for 16 months is troubling. Professor Turley, LT Freedus, and I wrote dozens upon dozens of letters objecting to the procedures used by the Navy in this case. We made our objects to the convening authority, to the prosecution, to the investigating officer, to the Director of Naval Intelligence, to the Director of Central Intelligence, to the Navy Inspector General, to the Judge Advocate General, to members of Congress, and to this body. Only this body seemed to care that the Navy was engaged in a daily practice of violating the law and the Constitution is was designed to protect. Action must be taken to prevent similar abuses from taking place in the future.
I would be happy to answer any questions that the Committee may have regarding my testimony.