Jonathan TurleyBy Facsimile Transmission and Overnight Mail
George Washington University Law School
2000 H Street, N.W.
Washington, DC 20052
March 16, 2001
The Honorable Richard C. Shelby
Senate Select Committee on Intelligence
SH-211 Hart Senate Office Building
Washington, DC 20510-6475
Re: United States v. CTR1 Daniel M. King. USN
Dear Chairman Shelby:
Over the course of many months, I have written to you and various intelligence officials concerning serious breaches of national security in the above referenced case. This letter is to inform you that, as anticipated in my earlier correspondence, the charges against Petty Officer Daniel King have been dismissed by the Navy. This dismissal followed a written recommendation from the military judge serving as the investigating officer in the case. The judge found that, even before the completion of the preliminary Article 32 hearing, the evidence did not support a formal charge, let alone conviction, for espionage. The charges in the case were dropped within hours of the decision on March 9, 2001.
I am writing to you to ask for your intervention to preserve evidence of unlawful conduct, including serious national security violations, by various officials in this case. With the dismissal of these charges, there is no bar to direct congressional inquiry into these violations. The defense is deeply concerned that evidence and transcripts could be destroyed or compromised in the coming days. This evidence includes classified material, notes, physical evidence, video and audio tapes as well as uncompleted transcripts of the proceedings. Moreover, it is vital that the transcript of proceedings in the case be protected and completed. This transcript contains express admissions under oath by national security officials that they made false statements under oath and committed various national security violations. Many tapes of these proceedings must still be transcripted by the Navy, a prerequisite to any meaningful congressional review or inquiry. For example, on the final day of the proceedings before the dismissal, Ms. Mary Rose McCaffrey made a range of admissions of extremely serious violations committed by herself and by her staff. The scope of these admissions is described in my March 8, 2001 letter to the Director of Central Intelligence, a copy of which was sent to you earlier.
The evidence and record in this case contain information relevant to two distinct areas of congressional review. First, the defense has written repeatedly about knowing and reckless violations of national security rules in this case. These violations have been described under oath as serious breaches of national security and, at a minimum, would be sufficient to revoke the clearances of any responsible officials. Some of the nation's most sensitive information was compromised despite the repeated objections and warnings of the defense. The transcript in this case shows Navy officials refusing to act to prevent unauthorized disclosures and even laughing at warnings by the defense of violations that were later found to be well-based and supported. Dozens of such violations occurred and continued over objections by myself, military co-counsel LT Robert Bailey, and military co-counsel LT Matthew Freedus. As indicated in my prior letters, no one has contacted me or my co-counsel for information on these violations. Rather, the only investigation by the program was ordered by Ms. McCaffrey, who admitted that her office only conferred with the accused officials rather than independent witnesses. Ms. McCaffrey, who has now admitted to a host of "serious violations," testified that these witnesses never revealed a number of serious breaches. Likewise, CDR Mark Newcomb, the force judge advocate, asked the Naval Criminal Investigative Service (NCIS) to look into violations despite the fact that the NCIS is one of the chief culprits behind the national security violations alleged in this case. The defense now has confirmed violations by no fewer than ten NCIS agents. CDR Newcomb also chose not to refer the majority of violations previously reported to Congress, including violations now confirmed under oath by witnesses. As a result of the obstruction by Navy officials like CDR Newcomb and CDR Lynn Jowers, program information was handled and disclosed with careless abandon in this case. As a result, a number of special access programs must be reviewed for possible damage and the need for corrective action. We are preparing an unclassified list of dozens of different types of violations in this case that we can confirm on the record in this case and in a classified report.
Second, the evidence is relevant to review the conduct of the Navy in pursing this prosecution. As both an academic and a litigator, I have never seen a more troubling case. There is no question in my mind that this prosecution was prolonged by the personal interests of Navy officials who lacked the integrity or the courage to admit to a colossal error. At the outset of this case, Navy officials ran prematurely to the media to announce the arrest of a spy and a "counterintelligence coup." This case was used to trumpet the Navy's prowess in comparison to the Department of Energy and the Federal Bureau of Investigations (FBI) in the wake of the Wen Ho Lee affair. However, soon after this media campaign, it became clear that there was no evidence of espionage beyond a highly questionable statement by Petty Officer King. This statement was the result of interrogations that ran 19 hours and involved blatantly unconstitutional and coercive techniques by the NCIS.
Despite this abuse, Petty Officer King consistently denied the charges and stated that he was only signing the statement to end the interrogations. Recently, a cache of tapes was found secreted in a locker in the Navy Yard. These tapes show Petty Officer King repeatedly denying that he committed espionage. The tapes reveal a sobbing Petty Officer King asking for the interrogations and polygraphs to end. On the tapes. Petty Officer King repeatedly makes such statements as "I'm starting to make stuff up to please you to get through this" and slating that he was inventing facts "to say something to get through this so I can get back to my family." Petty Officer King later states that the long interrogations have destroyed any line between fantasy and reality and pleads "I don't know what I'm supposed to give you." The NCIS also videotaped a meeting requested by Petty Officer King with a Navy psychologist in which Petty Officer King is shown crying and pleading with the Navy doctor to put him under hypnosis or to give him sodium pentothal (truth serum) to show the NCIS that he did not commit any act of espionage. Petty Officer King is shown stating that he is exhausted from the interrogations. Previously, NCIS agents told the defense that such polygraphs and interrogations were not taped. Petty Officer King's repeated denials do not appear in reports by the NCIS and Navy officials told the media that King was a "confessed" spy without revealing his contemporaneous denials. The military judge ultimately ruled that the statement was contradicted, highly questionable, and offered a weak basis for any espionage charge.
The lack of evidence in this case was independently confirmed in the recommendation of CDR Winthrop. CDR Winthrop wrote that the case has been marred by blunders and violations by various Navy officials, including himself. CDR Winthrop stated that "there is plenty of blame to go around" and calls for an official review to "determine the lessons learned from the case so the mistakes committed will not be repeated." CDR Winthrop notes that, after a year and a half, the government had yet to complete the testimony of a single witness. CDR Winthrop stated that he doubts that the case could be prosecuted under the constitution due to delays and blunders by the government. However, CDR Winthrop also found that the evidence in the case is highly questionable and unreliable. In his decision, CDR Winthrop is critical of the Navy's case and notes that the espionage charge "is based exclusively on a confession that the accused subsequently contradicted on several occasions." Moreover, Winthrop states that there is merit to defense arguments that this statement was coerced and involuntary. Petty Officer King was interrogated in sessions that lasted 19-hours and he was denied a lawyer by the NCIS. CDR Winthrop stated that "I don't believe that the government evidence on any of the charges in this case is strong. On the other hand, the defense evidence in extenuation and mitigation is significant."
The King prosecution is a national disgrace that has imposed prohibitive costs on both Petty Officer King and national security interests. It is particularly disturbing that these serious breaches of national security were committed in pursuit of a meritless case. Various high-ranking Navy and civilian officials are at considerable personal and professional risk in any investigation of these matters. The defense was previously offered a settlement agreement to dismiss all charges if both Petty Officer King and his counsel agreed not to pursue later charges or lawsuits against the Navy or officials in the case. My greatest concern is that the individuals and programs responsible for these violations be fully identified, investigated, and held accountable. Additionally, compromised programs should be immediately reviewed and corrective action taken. The first step, however, is to preserve the evidence of the violations and to guarantee the completion of the transcript in the case. This case has a troubling history of altered documents and concealment that is confirmed on the record of the proceedings. We have seen ominous signs of an effort to cut off any review or charges in the last week. Within a day of the dismissal of charges, officials accused of serious wrongdoing contacted the defense and requested that we turn over all evidence and material that we have assembled. This would prevent the defense from supplying a classified report and evidence of unlawful conduct in the case. These same officials have sought to terminate the clearances of defense counsel, which would prevent any meaningful disclosures or cooperation by the defense. These documents remain secured under the previously approved conditions that have been in place for over a year. The material under the control of the defense is limited to material classified at or below the secret level. All program material has been secured by our security officer and is not part of the files retained by the defense. The sudden effort to transfer defense files and to remove the clearances of defense counsel is extremely disconcerting.
It is unlikely that an independent investigation will occur without the oversight of Congress. I ask for you to act to assert that oversight authority in this matter and help mediate a process for a classified report and a full inquiry. All of the members of the defense team are prepared to supply sworn statements supporting these allegations as well as a detailed and fully documented report on these violations. Without your assistance, however, it is doubtful that we will be able to supply this information and identify the unlawful conduct that we have witnessed in this troubling case.
I appreciate your attention to this matter.
Defense Counsel for Petty Officer Daniel King