Jonathan TurleyBy Facsimile Transmission and Overnight Mail
George Washington University Law School
2000 H Street, N.W.
Washington, DC 20052
October 16, 2000
The Honorable George J. Tenet
The Director of Central Intelligence
Washington, D.C. 20505
Re: United States v. CTRI Daniel M. King, USN Dear Sir:
As lead defense counsel in the above referenced case, I am writing to inform you of a series of national security violations relating to special program material and information. I am reporting this misconduct pursuant to my briefing and access to SCI information and special access programs. I am under an obligation to report adverse or derogatory information as to individuals handling, or given access to, SCI material. I have witnessed a series of serious and willful security breaches in the handling and unauthorized disclosure of such material. Since these allegations involve program security personnel and continue despite objections from various individuals with SCI clearances, there is an immediate and urgent need for action to protect the integrity of these programs.
The reported incidents discussed below have been established by the defense on a classified record. These incidents involve willful breaches of security procedures as well as unauthorized disclosures by Commander James Winthrop, Commander L. Lynn Jowers, security officer Ed Glenn, and security officer Karen Wright. While the defense previously revealed alleged national security breaches by two witnesses in the case, LT Mary Lewis and Major Kathleen Heverly, the instant report addresses only these four officials and their on-going failure to protect SCI and special access information. Due to the classified nature of this information, the allegations below are presented without specific references to programs or equity holders involved in the case.
Under Director of Central Intelligence Directive 1/14, enacted pursuant to Section 102 of the National Security Act of 1947, and Executive Order 12333, I am required to take action to report violations of security procedures and the safeguarding of SCI material. This Directive and other controlling authorities require that any doubt concerning the safeguarding of SCI material must be resolved in favor of protecting such information, restricting access, and confirming proper control and access. Moreover, this Directive establishes that "[i]ndividuals determined to have disclosed classified information to any person not officially authorized to receive it may be considered ineligible for initial or continued SCI access." Furthermore, this Directive established that security violations are often committed "by carelessness or ignorance" but that "a pattern of [such] violations may be sufficient ground for a recommendation of disapproval." Specifically, such repeated violations require a determination of whether SCI access will be continued.
The standards contained in the Director of Central Intelligence Directive 1/14 are mirrored in the CFR and other regulations governing the responsibility of both individuals accused of breaches as well as those who believe that classified information is not being properly safeguarded. Federal regulations expressly emphasize that "disclosing classified information, by any means, to unauthorized persons or discussing or handling classified information in a manner than would make it accessible to unauthorized persons" is incompatible with withholding even the most basic clearance. 32 CFR §154.61. Federal regulations further require that any "derogatory information" on individuals with such access must be reported immediately and "shall be referred by the most expeditious manner" for review. 32 C.F.R. §154.55.
All of the incidents described below occurred in the preparation for, or the participation in, classified proceedings held at Quantico Marine Base. Despite repeated objections by defense counsel, these violations have been continuing on a daily basis in flagrant disregard of national security laws and regulations. Given the recurring and confirmed violations, I must ask for an expedited inquiry and action to bring the proceedings in full conformity with national security regulations to protect the program information in this case from willful or inadvertent disclosure. Moreover, since these incidents include derogatory information as to holders of SCI clearances, I ask that you review the continued or interim access of these individuals to SCI material or special access material.
Commander James Winthrop1. Unlawful Access to Program Information. Commander James Winthrop is the Investigating Officer (I0) assigned to the Article 32 proceedings in this case. At the outset of the investigation, CDR Winthrop stated that everyone in the Special Compartmented Information Facility (SCIF) had secured TS/SCI clearances and the necessary access to the various programs involved in the case. CDR Winthrop expressly asserted that he had such access before the start of testimony. The government then proceeded to present the testimony of Mr. Ed Glenn, a civilian security expert associated with some of the programs in this case. Mr. Glenn proceeded to give information on each and every program including: (a) code names; (b) scope of activities under the programs; (c) comparisons between classified programs; and (d) the various agencies involved in such programs. CDR Winthrop repeatedly solicited further information from Mr. Glenn on these programs. In the course of this testimony by Mr. Glenn, defense counsel LT Robert Bailey became concerned that he was not cleared for one program (hereinafter Program A). A subsequent review of persons with clearances revealed that CDR Winthrop and a spectator were not cleared for this program. During his cross-examination, Mr. Glenn established that it is the obligation of each individual in the room to determine their own access to information and to stop disclosures (as did LT Bailey) if they are uncertain of such access. CDR Winthrop admits that he failed to obtain the necessary access to the programs in this case before participating in a detailed disclosure of the information. Moreover, the record establishes that CDR Winthrop listened to a full description of the program and never asked (as did LT Bailey) for confirmation of his access.
2. Failure to Properly Protect Program Information. As the I0, CDR Winthrop was ultimately responsible for the failure to individually confirm the access of every individual, including himself and the spectator, for the information in the case. This is particularly clear when the defense specifically called for the exclusion of spectators and questioned their need to be present for such program information.
3. Second Alleged Unlawful Access Violation. CDR Winthrop also was given access to documents with markings and information which he was not cleared to receive. These documents and information were supplied by CDR Jowers and security officers in the form of statements made by individuals in this case, including a statement of LT Mary Lewis that was put into evidence before the violations were discovered.
4. Third Alleged Unlawful Access Violation. CDR Winthrop committed additional violations in relation to another program (hereinafter Program B) even after the disclosure of the violations relating to Program A. On Monday, October 16, 2000, CDR Winthrop admitted to a failure to secure access to Program B before participating in the discussion of material under that classification. This failure was revealed by Ms. Francine Stephens, a civilian security official with the Judge Advocate General at the Washington Navy Yard. Again, CDR Winthrop failed to ascertain clearances under each of the programs even after his earlier violation.
5. Refusal to Comply with Access Verification Requests. CDR Winthrop also refused to comply with a standard request for written verification of access of individuals in the SCIF. After the disclosure of the multiple access violations leading up to the October 16, 2000 hearing, the defense asked for written verification of the access of everyone in the room before further information was disclosed. This was done after three prior assurances by security officer Karen Wright that the access of every individual had been established. All three of these assurances proved false and led to security breaches. While CDR Winthrop agreed that this request was made "in good faith" and would have to be satisfied, he refused to delay the presentation of further program information until written verification could be acquired. CDR Winthrop maintained this position despite the fact that CDR Jowers expressed a preference to wait until the next day to present the information. When the defense insisted on such confirmation as a condition for moving forward, CDR Winthrop ordered that all parties continue despite the stated objections of the entire defense team including the security expert assigned to the defense. The defense refused and, in order to avoid participating in a further violation, the defense walked out of the proceedings. The defense refusal forced the termination of the proceedings until Tuesday, October 17, 2000. By refusing to require written confirmation of access and relying on the oral assertion of Ms. Wright despite her demonstrated unreliability, CDR Winthrop failed to protect the integrity of program information. Moreover, CDR Winthrop refused to comply with basic procedures in establishing access when he attempted to force the participation of defense members, including two junior officers, without satisfying their concerns over the clearance of all individuals for the information. The defense concern was realized after the hearing on October 16, 2000 when the defense learned that LT Orr may not be cleared for access to yet another program in this case despite the assurances of Ms. Wright.
6. Refusal to Allow Confirmation of the "Need to Know" Spectators. Defense counsel have repeatedly attempted to determine the "need to know" of a LT Orr, who has been a spectator at these proceedings. Defense counsel repeatedly asked for specific proof (names and dates) that the individual equity holders over the relevant programs had given such approval. In response, CDR Jowers varied from claims that she had "direct contact" with the equity holders to approval by a single individual to approval "through the Convening Authority." CDR Winthrop repeatedly refused efforts by defense counsel to determine the specific authorization on the record over two days of proceedings. Rather, CDR Winthrop repeatedly stated that the law only required that he be satisfied on this point. Ultimately, CDR Jowers never offered specific names and referred generally to a meeting with "equity holders" without identification of the agencies. She stated that she could not remember the names of the representatives and could not provide any documentation of the claimed determination of the "need to know."
7. Failure to Protect the Integrity of the SCIF Proceedings. While clearly not as serious of the above breaches, CDR Winthrop also violated rules on the use of cellular phones in a SCIF. On October 4, 2000, CDR Winthrop's cellular phone rang after hours of testimony on highly classified program information. CDR Winthrop was asked to immediately turn off the cellular phone as a violation of the SCIF restrictions. However, this violation was repeated again after a recess and after additional classified discussion in the SCIF.
8. Pattern of Willful Failures to Follow Security Procedures and to Protect SCI Material from Unauthorized Disclosure. The repeated refusal of CDR Winthrop to follow procedures and verify basic access information shows a willful disregard of his obligations under the SCI briefing to protect classified information and special access information.
COMMANDER L. LYNN JOWERS1. Inadvertent Disclosure Violation. Trial counsel in this case is responsible for a series of intentional and inadvertent disclosures of TS/SCI material and special access material. The first such violation began in December 1999 when the government provided the defense with 5 binders of information marked as SECRET/NOFORN. Shortly thereafter, government security officers found TS/SCI program information within these 5 binders marked SECRET. In the interim, CDR Jowers repeatedly provided these binders to defense counsel who did not have TS/SCI clearance.
2. Inadvertent Disclosure Violation (2). A second inadvertent disclosure was disclosed in October 2000 when the government found, again, program material in the 5 binders. During his testimony, Mr. Glenn admitted that the binders marked SECRET contained program information. This material had been reviewed more than a dozen times by defense counsel who, at the time, did not have and was not actively seeking a TSI clearance.
3. Inadvertent Disclosure Violation (3). A third violation occurred in the second week of October 2000 when CDR Jowers had material delivered to defense counsel's office under her express assertion that the material did not contain program information. Within seconds of opening the material, defense counsel discovered clearly marked program information which should not have been removed from a SCIF or reviewed in an unsecure office.
4. Intentional Disclosure of Program Information to Individuals Without Access and Failure to Follow Procedures for Disclosure of Such Information. Weeks prior to the Article 32 proceedings, CDR Jowers is also believed to have shown LT Lewis a version of her statement containing program code names and identifying specific provisions with specific programs. This material contains TS/SCI material as well as special access program information and markings. LT Lewis did not possess any clearance and it was only in the last week that the Navy attempted to obtain a waiver for such access. Such disclosure was done in full knowledge of the classification of this information on the face of the document and without following the procedures for determining LT Lewis' access for such information. In fact, while apparently disclosing this information to LT Lewis, CDR Jowers had previously relied on the special access designations of the information in barring access to uncleared defense counsel.
5. Intentional Disclosure of Program Information to Individuals Without Access and Failure to Follow Procedures for Disclosure of Such Information (2). A second violation by CDR Jowers occurred when she gave the Lewis statement with program markings and identifications to CDR Winthrop who did not have access to the program information at the time.
6. Intentional Disclosure of Program Information to Individuals Without Access and Failure to Follow Procedures for Disclosure of Such Information (3). A third violation by CDR Jowers occurred when she read the program markings and elicited testimony on programs without determining the access of spectators in the proceedings. One such spectator did not have the necessary program access.
7. Intentional Disclosure of Program Information to Individuals Without Access and Failure to Follow Procedures for Disclosure of Such Information (4). A series of violations and attempted violations occurred on October 13, 2000 in relation to CDR Jowers effort to circumvent national security rules and regulations. Defense counsel repeatedly objected to the failure of CDR Jowers to establish the access of individuals in the classified proceedings. The defense specifically objected to LT Lewis being called into the SCIF without determining the level of her clearance and access to information. CDR Jowers, and Ms. Wright had initially argued that LT Lewis could simply testify on her statement and could be shown her statement to incorporate the statement into the record. Defense counsel objected that the statement contained program markings and that LT Lewis should not have been allowed into the SCIF without a clearance. In fact, when LT Lewis entered the SCIF, neither CDR Jowers nor Ms. Wright asked for program material to be covered despite the fact that such information was visible on every table. It was only upon the defense objection, resisted by CDR Jowers, that LT Lewis was removed to permit discussion of her access. The entry of LT Lewis into the SCIF exposed program information without warning that she lacked access and compromised the integrity of the SCIF.
8. Attempted Intentional Disclosure of Program Information to Individuals Without Access. In clear violation of security rules and regulations, CDR Jowers insisted that LT Lewis be allowed to return and testify on information that she knew to be program information and that she then be cross-examined on such information. No prior inadvertent disclosure form was submitted for LT Lewis' original disclosure of this information. No authority was supplied for LT Lewis to discuss such information again in her testimony. To the contrary, CDR Jowers maintained that no such authorization was needed. The defense succeeded in preventing this violation by convincing the IO that some specific authorization must be shown.
9. Attempted Intentional Disclosure of Program Information to Individuals Without Access (2). After the defense threatened to leave the October 13, 2000 hearing rather than participate in another violation, it was determined by the IO that authorization would be required. CDR Jowers again objected and stated that no such authorization would be required. After additional discussion, the government then stated its intention to justify testimony of LT Lewis on the following Monday with an authorization from the Chief of Naval Operations (CNO). The support for this position was a reference on an inadvertent disclosure form. The IO indicated that he believed that this was sufficient. The defense again objected and stated that only a signed Non-Disclosure Agreement establishing that the individual had been briefed or "read into" the programs would suffice. On Monday, October 16, 2000, CDR Jowers attempted again to call LT Lewis. CDR Jowers, however, abandoned her earlier position and now sought the testimony on the basis of a letter from the Director of Naval Intelligence authorizing "temporary access" to these programs. While this letter was used to support a claim that LT Lewis had been briefed into the programs, the letter failed to establish any of the conditions set forth in the CFR for such access. After apparently reviewing these procedures for the first time, CDR Jowers again stated that she could not produce the necessary authorization. Again, the only reason this witness did not violate national security rules and regulations was that persistence of the defense and its refusal to allow the violation to occur.
10. Failure to Act on Mandatory Declassification Review Requests and Classification Challenges. CDR Jowers also failed to act on repeated requests for declassification review and classification challenges despite the obviously unclassified nature of material marked SECRET in the evidence binders. It was not until October 2000 that a classification review was performed, almost a year after the first requests and after she repeatedly invoked classification barriers in refusing disclosures to counsel. CDR Jowers failed to follow the regulations regarding classification challenges despite repeated assurances that the process was underway. 11. Pattern of Willful Failures to Follow Security Procedures and to Protect SCI Material from Unauthorized Disclosure. The repeated refusal of CDR Jowers to follow procedures and verify basic access information shows a willful disregard of her obligations under the SCI briefing to protect classified information and special access information.
ED GLENN1. Negligent Disclosure of Program Information to Individuals Without Access. Mr. Glenn is a senior program security officer who appeared as a witness in a preliminary hearing in this case. During this testimony, the unauthorized disclosure of program information was discovered. Mr. Glenn was responsible for the vast majority of such information disclosed on Program A. In his testimony, Mr. Glenn admitted that he was under an obligation to determine the access of individuals before disclosing the information. He admitted that he did not in fact make this inquiry. Later, Mr. Glenn referred to his failure to ascertain the access of individuals to program information as a mere "administrative oversight" and not a serious concern.
2. Intentional Disclosure of Program Information to Individuals Without Access and Failure to Follow Procedures for Disclosure of Such Information. It is believed that Mr. Glenn participated in a meeting in which he and CDR Jowers showed LT Lewis a version of her statement and discussed its contents containing classified program code names and identifying specific provisions with specific programs. This material contains TS/SCI material as well as special access program information. LT Lewis did not currently possess any clearance and it was only in the last week that the Navy attempted to obtain a waiver afford LT Lewis access to these programs. Defense counsel attempted to determine who participated in this meeting but were prevented from doing so by CDR Winthrop.
3. Negligent Disclosure of TS/SCI and Program Information to Unauthorized Individuals. It is believed that Mr. Glenn was involved in the repeated failures to properly mark material in the binders given to the defense, including the failure to remove program information described in the Jowers violations above.
4. Failure to Require Proof of Access by Individuals in the Investigation and Article 32 Proceedings. It was ultimately Mr. Glenn's responsibility, as well as Ms. Wright's, to ascertain the access of individuals prior to their exposure to program information. The defense. has discovered a number of individuals apparently not given access. Yet, these individuals appear to have typed or reviewed the statements of Major Heverly or LT Lewis which contained TS/SCI and special access information.
5. Pattern of Willful Failures to Follow Security Procedures and to Protect SCI Material from Unauthorized Disclosure. The repeated refusal of Mr. Glenn to follow procedures and verify basic access information shows a willful disregard of his obligations under the SCI briefing to protect classified information and special access information.
KAREN WRIGHT1. Negligent Disclosure of Program Information to Individuals Without Access and Failure to Follow Security Procedures. As the security officer assigned to the IO, Ms. Wright bears considerable responsibility for the series of violations committed in the Article 32 proceedings. The first such failure concerned the lack of program access given to the IO despite her assurances that the IO did have such access before the disclosure of program information.
2. Negligent Disclosure of Program Information to Individuals Without Access and Failure to Follow Security Procedures (2). Ms. Wright further failed to ascertain the program access of a spectator prior to the discussion of Program A, as discussed above.
3. Negligent Disclosure of Program Information to Individuals Without Access and Failure to Follow Security Procedures (3). Ms. Wright further failed to ascertain the program access of the IO to Program B until after his exposure to such information. 4. Negligent Disclosure of Program Information to Individuals Without Access and Failure to Follow Security Procedures (4). Ms. Wright further failed to establish the access and require proper authorization before LT Lewis entered the SCIF for testimony, as described above.
5. Negligent Disclosure of Program Information to Individuals Without Access and Failure to Follow Security Procedures (5). Ms. Wright failed to warn individuals in the SCIF that LT Lewis lacked access to TS/SCI material or program material when she entered the SCIF or to alert individuals to cover such material.
6. Negligent Disclosure of Program Information to Individuals Without Access and Failure to Follow Security Procedures (6). Ms. Wright failed to object to the repeated attempts of the government to permit LT Lewis to testify (1) without authorization; (2) with only authorization from the Chief of Naval Operations; or (3) without satisfying the express conditions of 32 CFR § 147.32-33 and the DCID 6/4.
7. Negligent Disclosure of Program Information to Individuals Without Access and Failure to Follow Security Procedures (7). On three separate occasions, Ms. Wright reportedly represented to the IO that every one present for the proceedings was cleared for access to programs in the case. These assertions were false and clearly the result of a failure to make an adequate inquiry. These failures led to repeated violations.
8. Pattern of Willful Failures to Follow Security Procedures and to Protect SCI Material from Unauthorized Disclosure. The repeated refusal of Ms. Wright to follow procedures and verify basic access information shows a Wilful disregard of her obligations under the SCI briefing to protect classified information and special access information.
The individuals discussed in this report continue to handle and disclose SCI and special access material. In today's hearing, further violations were prevented only by the defense leaving the SCIF. However, CDR Winthrop and CDR Jowers have stated an intention to proceed on October 17, 2000 without establishing that basic procedures and protections have been confirmed in the case. Defense counsel is, therefore, in the position of placing the rights of our client at risk or adhering to the briefing instructions contained in the Director of Central Intelligence Directive 1/14 and other controlling authority. For that reason, I ask for action by your office without delay.
Defense Counsel for Petty Officer Daniel King
The Hon. William S. Cohen
The Hon. Richard Danzig
RADM Donald Guter