Saturday, December 9, 2000

Court: Espionage case against
sailor must start over

By Sandra Jontz
Washington bureau

WASHINGTON — The year-old espionage case against a Navy cryptologist charged with selling secrets to the Russians will have to start from the beginning after a military appeals court ruled Thursday the U.S. Navy violated the defendant’s constitutional rights.

Petty Officer 1st Class Daniel King, jailed for more than a year on the accusation, has yet to go through an Article 32 hearing, the military equivalent of a grand jury investigation.

By comparison, Article 32 hearings typically are held within weeks of an arrest, and under military law, a servicemember accused of a crime must be brought to trial within 120 days after the preferral of charges or incarceration.

However, if defense motions bring about delays, they are not counted against the government, as is the case in the King hearing.

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. He was arrested after Navy investigators said he failed a routine lie-detector test.

Navy prosecutors contend 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.

In its ruling, the Navy-Marine Corps Court of Criminal Appeals found the Navy "employed an ax in place of the constitutionally required scalpel" in the case.

The defense contends that the delay could mean the espionage charge might be dropped, said King’s attorney, Jonathan Turley, a George Washington University Law School professor working the case pro bono.

"We are extremely thankful to the court in taking this rare step and ordering new proceedings in conformity with constitutional law," Turley said. "In its blind zeal for a conviction at any costs, the Navy has made this case a national embarrassment and a mockery of military justice. We intend to pursue further relief to put an end to a prosecution that has become nothing short of a legal farce."

The Navy is faced with trying one of the toughest of cases, Navy spokeswoman Cmdr. Roxie Merritt said.

"It is so hard for the government. The prosecution is very earnest to ensure every American citizen gets a fair and speedy trial," Merritt said. "But they are charged with the heavy burden of protecting military secrets. Hundreds of lives are at stake when secrets are revealed. They try so hard and are walking such a tight rope of balance between individual rights and the burden of protecting national secrets."

Despite the blow to the prosecution, the case will proceed, Merritt said. The government will not drop the charges because they are still within the 120-day parameter since defense motions spurred the delays.

"We’ve been ready to go since January. The evidence is ready, we just haven’t had the opportunity to get into the meat of the case," Merritt said. "There’s been argument back and forth on how the hearing should proceed."

The re-start of the hearing is anticipated to begin toward the end of next week, possibly Thursday, with the same cast of characters.

The defense has contended the investigating officer, who acts similar to a judge, violated King’s right to a public trial by allowing discussion of all evidence in a closed session.

The Navy has argued that some of the evidence is of a classified nature, and that it first must be presented in closed session so classified evidence can be weeded from unclassified evidence.

The appeals court ruled the investigating officer used improper procedures in keeping the public from hearing testimony of some information.

The court rejected the defense appeals to require the Navy issue public notices of the trial or secure a larger courtroom.