European Stars and Stripes
December 7, 2000
Speedy Trial Eludes Sailor Accused Of Spying
A year goes by for jailed cryptologist as lawyers wrangle over security issues
By Sandra Jontz, Washington bureau
QUANTICO MARINE CORPS BASE, Va.-- For 431 days, Petty Officer 1st Class Daniel King has been sitting in jail on an accusation that he is a spy.
He has not been indicted.
He has not been convicted.
He has not even heard the government's evidence against him.
King, 40, has been held in the brig at Quantico Marine Corps Base since Oct. 2, 1999, on one charge of espionage and two charges of wrongful disclosure of classified information.
The U.S. Navy contends that King, while working as a cryptologist at the National Security Agency at Fort Meade, Md., sold secrets about the U.S. submarine fleet to the Russians in 1994, and that he discussed classified information with two women who had security clearances but were not cleared to receive information about the specific programs he allegedly discussed.
During the past 14 months, the U.S. Navy has tried 12 times to introduce evidence to formalize an espionage charge against the 19-year Navy veteran, who faces the death penalty if convicted.
And 12 times, an aggressive defense team, well-schooled in national security legal cases and unwilling to let even the slightest of legal blunders go unchallenged, has stonewalled the prosecution.
Because of the seriousness of the allegations, King has been held without bond at the military jail, and he has yet to complete the Article 32 hearing, the military equivalent to a grand jury investigation. He was arrested after taking a routine lie-detector test a year ago.
Under military law, a service-member accused of a crime must be brought to trial within 120 days after the preferral of charges or the imposition of restraint, said Eugene R. Fidell, president of the National Institute of Military Justice and a Washington, D.C., attorney.
However, the time clock stops ticking when delays are the effect of motions filed by the defense team, as is the case with the King trial.
King's lead defense attorney, George Washington University law professor Jonathan Turley, recently blasted the prosecution for "forcing" the defense to file motions that resulted in the delays.
He said mistakes made by the prosecutor, Cmdr. Lynn Jowers, and officials from the Navy's judge advocate general offices that prompted him to file the motions, should not punish the defense or stymie his client's right to a speedy trial.
"That's like the prosecution tying up and gagging my client and then saying that the time it takes the defense to untie and ungag him so that we can talk to him should count against the defense," Turley said.
"These delays are due to blunders by the military and to say they have been done by the defense is wishful thinking."
But Cmdr. Roxie Merritt, a Navy spokeswoman, said the delays are not the prosecution's fault. The Navy has done nothing wrong in this case and must do everything possible to protect national security secrets, she has said.
The latest delay came Oct. 24, when the Navy-Marine Corps Court of Criminal Appeals agreed to consider the defense's position that King be given a new Grunden hearing, a procedure in which the investigating officer is to decide how much of an Article 32 will be closed to the public, and why it will be closed. Usually, portions are closed for the introduction of classified information.
The defense says some of the information discussed during the closed-door sessions is not classified and should be disclosed in open court.
An appellate court prosecutor submitted a brief arguing that the appellate judges should dismiss the defense's show-cause motion because the investigating officer has been reinstructed by the judge advocate general office on how to proceed, said Lt. Robert Bailey, one of two Navy lawyers appointed to represent King.
According to Bailey, the investigating officer has been instructed by the convening authority that all nonclassified information can be discussed in an open session.
"But it's too little, too late," said Bailey of the convening authority's intervention after the defense filed its motion with the appellate court.
He said the defense has little faith that the investigating officer will follow the rules. "[The investigating officer] could back out of it, unless it's a court order. ... We want to hear it from the judges."
The defense still is waiting for the court's response, and the Article 32 has been placed on hold until then.
King's lawyers have lobbed numerous complaints of wrongdoing against the prosecution, contributing to the yearlong delay. Those complaints include:
* King's defense lawyers allege the investigating officer, Cmdr. James Winthrop, did not have the security clearance to hear some of the classified information during the case. Nor did the prosecutor, two senior security officials, a staff judge advocate and the court reporter who tape-recorded every classified session and prepared transcripts without being cleared.
"These charges [against the government] are based on the same provisions on which two of the three counts against King are based," Turley said. "These non-espionage counts allege that King disclosed classified information to two individuals with clearances, but not 'access' to specific program information."
All parties involved have since been cleared to hear the facts of the case.
* On March 2, the case was delayed for five months when Vice Adm. Joseph Mobley, commander of Naval Air Forces for the U.S. Atlantic Fleet in Norfolk, Va., restricted contact between King and Turley, a civilian, who at the time of the order, did not have the necessary "special access" security clearance, and ordered that a Navy security officer be present during all discussions. Turley has since received the proper security clearance.
Turley, working the case pro bono, objected, saying King's protections under the "attorney-client privilege" rule would be compromised.
Mobley appointed the security officer as a "privileged member" of the defense team with confidentiality assurances. The defense security officer, Ed Glenn, then became a material witness on the classified information for the prosecution. Turley cried foul and cited issues of conflict of interest. Winthrop agreed and ap-pointed another security officer.
The NIMJ, a nonprofit organization based in Washington that has many members who formerly served on active duty as both judges and lawyers, scrutinizes the military justice system, and when necessary and appropriate, makes recommendations for change to Congress, the Pentagon or the Court of Appeals for Armed Forces, Fidell said.
The King case does not bode well for the argument that the military needs separate trials from the civilian world, Fidell said.
"This is not the first case in which security clearance issues have gummed up the process," Fidell said. "This is like an airplane that is still on runway long after it was expected to take off.
"One of the purposes of having a separate military justice system is to provide prompt justice," he said.
"Anytime there is a protractile delay in pretrial or post-trial, you have to be concerned. It undermines one of the major rationales for having another system of justice. It's not good for either side and it's not in the public's interest."
Fading memories and the possibility of losing evidence are two of many reasons why officials want speedy trials, he said. On the other hand, postponements can allow for tempers to cool down, he added.
Through it all, King has remained as optimistic as possible, his lawyer said.
Each time the court convenes in hopes of proceeding with the Article 32, King has appeared smiling and at times whispers, "I love you" to his family seated in the galley.
King's sister, Alice Brown, has traveled from King's hometown of Elyria, Ohio, to attend the hearings. The family has been devastated by the accusation and King's confinement, said Brown, adding her brother is loyal to the Navy and adored his job.
"I know Danny, and he wouldn't do this," she said during one of her several trips from Ohio to Quantico.