Thank you, Mr. Chairman.
PREPARED STATEMENT OF
MATTHEW SIDNEY FREEDUS
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 Matthew Freedus. I currently represent Petty Officer Daniel M. King and served as detailed military defense counsel during his prosecution for alleged espionage. I am currently serving active duty in the Judge Advocate General's Corps, United States Naval Reserve. 1
1 I graduated with honors and received a Bachelor of Arts in political science from Washington University, St. Louis, Missouri in 1993. I graduated with honors from Albany Law School of Union University in 1997. As a member of the Albany Law Review, I published an article in the area of constitutional law. See A Cause of Action for Damages Under the State Constitution: Brown v. State of New York, 60 ALB. L. REV. 1915 (1997). I have been a member of the Bar of the State of New York since 1998. I was commissioned in the Judge Advocate General's Corps, United States Naval Reserve in May 1997. I started working at the Naval Legal Service Office North Central, Washington, D.C. in April 1998. After practicing civil law for the first nine months of my career, I started working as a criminal defense attorney. When I was assigned to this case in November 1999, along with my co-counsel LT Robert Bailey, I had been working as a criminal defense attorney for roughly ten months. With less than a year of criminal justice experience, I was the most senior defense attorney in the office.The case of United States v. CTR1 Daniel M. King has become a national disgrace and has caused considerable controversy in the media.2 It has been dubbed the next Wen Ho Lee case3 and has been cited as an example of how not to prosecute a spy case.4 After holding CTR1 King in pretrial confinement for 520 days on suspicions of espionage and mishandling classified information, the military judge presiding over the pretrial investigation found that the Navy had insufficient evidence to satisfy even a reasonable belief that an offense was committed and recommended the dismissal of all charges. Within hours of this recommendation, the Navy dropped the charges and let CTR1 King go free. This case has left the public questioning how the Navy can imprison someone for 520 days without a formal charge, let alone a trial. Even after Wen Ho Lee plead guilty to mishandling classified information, the federal judge presiding over his case issued a formal apology for the government's false statements and illegal pretrial confinement. In stark contrast, the Navy has been unapologetic and no government officials have been held accountable for this colossal miscarriage of justice. Instead, just twenty days after CTR1 King was released from the brig, the Navy congratulated the prosecutor in this case and awarded her the prestigious Meritorious Service Medal.5
2 See e.g., Jim Oliphant, How Not to Prosecute a Spy, Part 2, Legal Times, December 11, 2000 at 3; Craig Timberg, Court Rules Spy Hearing Must Begin Again Publicly, The Washington Post, December 9, 2000, at B02, Laura Sullivan, Military Appeals Court Orders Navy to Restart Spying Trial of Petty Officer, The Baltimore Sun, at 4A; Matthew Barakat, Navy Struggles with Spy Case, Associated Press, December 9, 2000; David Rovella, The Next Wen Ho Lee Case, National Law Journal, October 30, 2000, at A4; Matthew Barakat, Espionage Case Proceeds at Snail's Pace, Dayton Daily News, October 28, 2000, at 6B; Laura Sullivan, Government Gaffes Prompt Third Delay of Navy Spy Case Against Ex-NSA Worker Cryptologist, The Baltimore Sun, October 6, 2000, at 13A; Sabrina Eaton, Dispute Over Security Lapse Delays Elyria Native's Spy Case, The Plain Dealer, October 6, 2000, at 17A; David Rovella, Defense in Spy Case Cries Foul, The National Law Journal, August 21, 2000, at A11; Jim Oliphant, Accused Spy Left Out in the Cold, Legal Times, March 20, 2000, at 1; David Rovella, Accused Spy Wants Out, The National Law Journal, January 8, 2001, A7; David Rovella, Spy Case is Sunk, The National Law Journal, March 26, 2001, A22; Lionel Van Deerlin, Is the Navy Violating the Rights it Swears to Protect, The San Diego Union-Tribune, March 28, 2001, at B7; Barbara Bradley, Navy Petty Officer Held For 500 Days on Suspicion of Spying for Russia Finally Released Without Being Charged, National Public Radio, March 28, 2001; Vernon Loeb and Walter Pincus, Pentagon Probes Spy Case Navy Dropped Against Sailor, The Washington Post, March 29, 2001, A04.After reviewing all the evidence in this case, it is absolutely clear that there was never any credible evidence of espionage. The sole basis for the charge was a coerced confession signed at 3:30 in the morning after a nineteen-hour interrogation.6 When he signed the statement, CTR1 King had been seriously deprived of sleep, denied several requests for counsel, and interrogated relentlessly over the course of seven days. Simply put, he was mentally and physically exhausted and would have signed anything that the agents put in front of him.
3 David Rovella, The Next Wen Ho Lee case, The National Law Journal, Oct. 30, 2000.
4 Jim Oliphant, How Not to Prosecute a Spy, Part 2, Legal Times, December 11, 2000 at 3.
5 It is perplexing that, on one hand, the military appellate court has characterized CDR Jowers as relatively inexperienced and the media portrayed her as totally incompetent, while on the other hand the President of the United States and the Chief of Naval Operations found her performance to be worthy of such a distinguished award.
6 In the two days proceedings this signed statement, CTR1 King was interrogated for 30 out of 39 hours.After several more weeks of interrogations, the Navy placed CTR1 King in jail and kept him there for more than 500 days, based solely on a coerced and uncorroborated confession. The Navy apparently expected that a lengthy pretrial incarceration would demoralize CTR1 King and induce him to plead guilty to anything in exchange for his freedom. Just weeks after the defense discovered the highly exculpatory tapes, the Navy approached the defense with several offers to settle this case. CTR1 King rejected these offers and the Navy simply dropped the charges.
This congressional inquiry is a necessary step towards revealing the incredible abuses committed by government officials in this case. To ensure a complete and thorough review, the defense urges this Committee to demand a transcription of the Article 32 proceedings in this case.7 This record documents a disturbing pattern of unethical, dilatory and unconstitutional practices by the government. In addition, this record reveals multiple violations of national security by government witnesses and the prosecution. Several government witnesses admitted under oath to violating national security rules and regulations and to knowing of numerous violations by others involved in the prosecution of this case. The statements of my co-counsel, Professor Jonathan Turley and LT Robert Bailey explain these violations in great detail. I fully concur with their respective testimonies.
7 In most courts-martial cases, the tapes of the Article 32 investigations are not transcribed.Focusing on the weight and credibility of the evidence in this case, my testimony is categorized into four main parts. Part I explains the purpose, substance and findings of the Article 32 investigation in this case. In essence, the Article 32 investigation is required by federal statute and it is designed to avoid trials on baseless charges. At this investigation, the government has the burden to present evidence that establishes a reasonable belief or probable cause that the charged offenses were committed. It is well settled that this standard of proof represents a very minimal burden for the government. In this case, however, the military judge who has overseen the Article 32 investigation and has reviewed the government's evidence, concluded that this evidence was so scanty that it barely, if at all, satisfied this minimal burden. As a result, the military judge recommended the dismissal of all charges in this case and the convening authority immediately followed this recommendation and released CTR1 King from jail.
Part II of my testimony examines the evidence proffered by the government to support its espionage allegation. The government's sole evidence in support of this charge was a coerced and uncorroborated confession. In his recommendation to dismiss the charges, the military judge explained that the defense had a legitimate claim that CTR1 King's confession was involuntary and coerced. This section details the nature and circumstances surrounding CTR1 King's so-called confession that led the military judge to reach this conclusion. This section discusses the length and frequency of the interrogations, the treatment of CTR1 King during his rotation from safe house to safe house, and the coercive methods and tactics used by the interrogators to secure a false confession. In addition, this section details the repeated declarations of innocence that CTR1 King made throughout his 29-day custodial interrogation.
Part III of my testimony examines the lack of corroboration for the government's so-called confession. A fundamental tenet of our Constitution is that all accused are innocent until proven guilty and the government bears the exclusive burden to prove guilt beyond a reasonable doubt. The military judge reviewed the evidence in this case and found that the government hardly satisfied a probable cause standard, which is by all accounts a minimal burden. Despite an astronomical expenditure of resources and a comprehensive investigation, the Navy could not find any evidence to corroborate the central facts of the espionage charge. Literally dozens of agents from several different law enforcement organizations were sent across the globe to look for evidence of espionage. These agents conducted hundreds of interviews, seized and searched every personal possession of CTR1 King, searched every conceivable database of information and found nothing to support this charge. This case simply has none of the traditional indicators of a genuine spy. CTR1 King had no unauthorized travel, no contact with foreign nationals, and no unexplained wealth or income. To the contrary, the Navy's investigation actually proved the impossibility of several facts contained within his statements. This section examines the categorical failure by the government to corroborate CTR1 King's statements.
Several issues concerning the lack of corroboration involve classified information. As the Navy, however, has denied access to our classified materials, we were unable to prepare such a report for this hearing. As such, we respectfully request an opportunity to present a classified report to the Committee at a later date.
Part IV discusses the highly exculpatory8 evidence in this case, most of which the government concealed from the defense. Although CTR1 King was not required to prove his innocence, powerful evidence was revealed during the investigation that demonstrates he never committed espionage. This section presents unclassified statements extracted from the audiocassette tapes of some of CTR1 King's polygraph examinations wherein he is coerced into confessing to his fantasies as reality. He is heard telling agents he is only saying what they want to hear. In addition, this section discusses several crucial pieces of evidence establishing that CTR1 King did not and indeed could not have committed the acts that he confessed to in the coerced statement.
8 Exculpatory evidence is that which tends to clear the defendant from alleged guilt. BLACK'S LAW DICTIONARY (6th ed.)I. THE ARTICLE 32 INVESTIGATION
Before a case can be sent to trial by general courts-martial, an investigation of the charges must be conducted under Article 32 of the Uniform Code of Military Justice. This investigation is the military's counterpart to a grand jury proceeding. The Article 32 investigation has traditionally been accorded special status in military jurisprudence. It is an important statutory right afforded to military personnel, an important defense discovery tool, and a bulwark against baseless charges.9 The Uniform Code of Military Justice recognizes the importance of this hearing by granting the defendant the right to be represented by counsel and the right to cross-examine the witnesses against him. Critical to the proper functioning of the Article 32 investigation is effective representation of the defendant.10
9 See United States v. Samuels, 27 C.M.R. 280, 10 U.S.C.M.A. 206 (1959); Talbot v. Toth, 215 F.2d 22 (D.C. Cir. 1954).In order to justify sending a charge to trial, the government must present evidence to satisfy a reasonable belief standard that the accused committed the offenses alleged.11 This standard of proof is analogous to what is commonly referred to as a probable cause standard. At the conclusion of the Article 32 investigation, a legal opinion must be given to the Convening Authority as to the appropriate disposition of the charges. In this case, CDR James Winthrop, the military judge, acting as the investigating officer for the Article 32 proceedings, found that the evidence in this case fell short of the probable cause standard, let alone the beyond a reasonable doubt burden necessary for a conviction. Judge Winthrop presided over this investigation for the past year and reviewed the evidence in this case and heard the testimony of the government witnesses, to include highly exculpatory evidence that is currently classified. The Navy has confirmed in writing that no corroborating evidence exists in the case that has not already been presented to the defense and the military judge. Following this comprehensive review, the military judge recommended that the charges be dismissed because of the lack of corroborating evidence to support a probable cause finding and the unreliability of CTR1 King's signed statement.
10 See U.S. v. Tebsherany, 32 M.J. 351 (C.M.A. 1991) (stating that "[a] component of effective representation of an accused at the pretrial stage is preparation for an Article 32 investigation) (citing United States v. Worden, 17 U.S.C.M.A. 486, 38 C.M.R. 284 (1968). If the government either interferes with discovery or acts in bad faith to preclude defense counsel's preparation for an Article 32 investigation, an accused is deprived of his right to effective representation. See id. at 354.
11 See Rule 405(j)(2)(H), Rules for Courts-Martial, Manual for Courts-Martial, (2000 ed.)II. LACK OF EVIDENCE
According to the military judge, the government lacked any strong evidence to support the espionage charge. In fact, the government's only evidence of espionage was a coerced confession that followed seven days of interrogation, with the last interrogation session lasting 19 hours. The military judge found that the defense had a valid claim that CTR1 King's statements were involuntary due to coercion.
There are several facts that demonstrate excessive coercion in this case. First, the length and frequency of the custodial interrogations alone constitute coercion. The government interrogated King for 29 straight days, with many of the interrogation sessions lasting between 12 and 19 hours at a stretch. The lengths of these interrogation sessions are reflected in the NCIS interrogation logs. It is disturbing to note that the government never provided these logs to the defense. In fact, the defense first received of a copy of these interrogation logs from CBS News after the charges had been dismissed.
Second, CTR1 King was held in custody and under constant surveillance for 26 days. It is axiomatic that custodial interrogations are inherently coercive in nature. CTR1 King was rotated between three different safe houses and was guarded around the clock for 26 days. The NCIS agents guarding him during this period were armed and one agent even told King that he would be shot if he tried to run.
Third, the agents deliberately deprived CTR1 King of sleep. At the safe houses, the agents played the television and made the phone ring at all hours of the night. In addition, CTR1 King was required to keep his bedroom door open and the lights on. After little or no sleep at all, CTR1 King was dragged back to the interrogation room time and again, for twelve, seventeen or nineteen hours at a stretch.
Fourth, CTR1 King's so-called confession was nothing more than fantasies that the agents forced him to write out and sign as fact. He repeatedly insisted that his statements were fantasies or dreams but that these thoughts did not reflect reality. Nevertheless the agents pressured him to discuss and write out his fantasies about committing espionage. When his fantasies were not detailed enough, the agents asked him to fill in the holes with hypothetical examples of espionage. CTR1 King repeatedly stated that he never acted on these fantasies and never committed espionage. He said that he was "just making stuff up to please you." After a nineteen hour interrogation session, the agents insisted that his fantasies must be real and forced him to sign statements to that effect. Based on these facts, the military judge concluded that the government's statement would not likely be admissible at trial due to the coercion used by the agents to obtain these signed statements and the lack of corroborating evidence.
Noting the extraordinary length of the custodial interrogations and CTR1 King's repeated declarations of innocence, the military judge found that the defense had a legitimate claim that CTR1 King's confession was involuntary and coerced. Moreover, the military judge found that "the investigation in this case has apparently not revealed any direct evidence to corroborate the accused's confession."12 While the judge noted that even a "slight" amount of corroborating evidence is legally sufficient to proceed to a court-martial, he stated "the evidence I am aware of barely, if at all, reaches that threshold."13 When a confession has been coerced, it stands to reason that there will be no evidence to corroborate that confession.
12 Written recommendation of military judge, CDR James Winthrop, JAGC, USN, to dismiss all charges dated March 9, 2001.A. 29 days of Interrogations and Sleep Deprivation
This ordeal started when Daniel King registered inconclusive on a routine polygraph examination. He was then subjected to coercion, manipulation and constitutional violations at the hands of government officials that simply shock the conscience. This country has not seen the type of Draconian interrogation tactics that were used in this case since the 1930's. It is virtually unheard of for the government to hold someone in custody and interrogate him for 29 straight days and then throw him in jail for 520 days based on nothing more than a coerced and uncorroborated confession. The government's own records demonstrate that King was interrogated incessantly over the course of 29 days. The Supreme Court of the United States has ruled that even a confession gleaned after 16 days of interviews, with only an hour or less a day of interrogation, was involuntary.14 In addition, he was systematically denied rest throughout this entire period. While he was moved between three different safe houses, he was guarded around the clock. Several agents rotated shifts in order to monitor CTR1 King. He was required to sleep with the lights on, and the agents played the television and the phone rang at all hours of the night. As a result, King was in a constant state of mental and emotional exhaustion.
14 LT Robert Bailey's written testimony explains the law governing the issue of involuntary confessions.Based on the how the statements were obtained, it is clear that CTR1 King was under a tremendous amount of duress and that his statements were involuntary and false. This section outlines the 29 days of interrogations and reveals how a routine polygraph examination mutated into a full-blown spy hunt. The defense was able to get a flavor for the coercive nature of the tactics employed by listening to the tapes of these interrogations. The government, however, withheld these tapes from the defense for more than a year into CTR1 King's confinement. A detailed discussion of these tapes and the associated statements illustrates NCIS's attempt to create a spy case where none existed. The tapes cover the period of September 29 until October 2, 1999.
On September 29, 1999, CTR1 King registered a no opinion on a routine polygraph test. Special Agent Robert Hyter from the Naval Criminal Investigative Service conducted this examination. At the time, CTR1 King was taking several different medications for high blood pressure and weight loss. In response to the polygraph questions, CTR1 King stated that he never committed espionage and never acted to harm the United States. SA Hyter's written reports indicate that her could not render an opinion as to the truthfulness of King's answers, but he told CTR1 King that the polygraph indicated deception. The agent then probed CTR1 King's background and personal life. For more than seven hours, CTR1 King delved into what sounded like an adversarial meeting with a marriage counselor. He expressed his perceived shortcomings in his family life and explained the personal struggles that he was having with his marriage. CTR1 King further explained that he was battling with bouts of depression as a result of the separation from his family. SA Hyter manipulated these feelings of inadequacy and repeatedly attempted to steer the conversation towards CTR1 King's character for honesty and any possible security violations. SA Hyter asked CTR1 King whether he blamed the Navy for his personal problems. In response, CTR1 King occasionally expressed disappointment and dissatisfaction with the Navy for sending him to Guam and not promoting him. SA Hyter asked King whether he ever fantasized about hurting the Navy or committing espionage as a result of these feelings. CTR1 King admitted that he had occasional fantasies about espionage over his 20-year career, but stated unequivocally that these were just fantasies and that he would never do anything to hurt the Navy.
It should be noted that it is very common for individuals working in the national security field to have fantasies of committing espionage. In fact, during an interview several months later, SA Hyter acknowledged that fantasies of espionage were common and even admitted that he had thoughts of espionage. The government recorded and made a written transcript of this interview that is currently marked For Official Use Only (FOUO).
On September 30, 1999, SA Hyter resumed his interrogation of CTR1 King. He questioned CTR1 King for nearly six consecutive hours and administered multiple polygraph examinations throughout the day. The results of these polygraph examinations were mixed. In the first examination, CTR1 King was asked whether he had any unauthorized contacts with a representative of foreign government and whether he had any contacts with a foreign diplomatic establishment. His answer was "no" to both questions and SA Hyter was unable to render an opinion as to the truthfulness of his statements, which is a very common occurrence.
In the second polygraph examination, King was asked whether he ever met with a representative of foreign government for espionage purposes and whether he ever had any communication with a representative of foreign government for espionage purposes. Again, his answers were "no" to both questions, but it was SA Hyter's opinion that his responses were deceptive to these questions.
In the third polygraph examination on this day, he was asked whether he ever provided any classified material to a representative of a foreign government and whether he was ever asked to provide any classified material to a representative of a foreign government. He responded in the negative to both of these questions, but it was the opinion of SA Hyter that King was being deceptive on these questions. On the fourth polygraph examination of the day, CTR1 King was the same relevant questions. Again, CTR1 King answered no to both questions and SA Hyter reported another "no opinion."
In between the polygraph examinations SA Hyter would interrogate CTR1 King and tell him that he must be lying and that he must have committed or attempted to commit espionage. Any credible polygrapher would admit that such accusations would distort the results of a polygraph by artificially raising the level of anxiety of the subject. SA Hyter pressured CTR1 King for details about the fantasies, manipulated his feelings of inadequacy in his personal life and repeatedly questioned his character for truthfulness. This is all reflected in the tape recordings of these sessions. SA Hyter told CTR1 King that at some point he must have acted on his fantasies and took steps towards committing espionage. While, CTR1 King admitted to having a very active imagination and very detailed dreams, he repeatedly stated that he never did and would never commit espionage. CTR1 King's fantasies literally sounded like stories from a bad romance novel. One dream in particular involved CTR1 King selling classified information to the Russians, moving to the Black Sea, marrying a beautiful Russian woman, and becoming a well-liked hero. SA Hyter disregarded the fantastical aspects of these dreams and focused only on the more plausible parts. SA Hyter pressed him to explain these dreams in excruciating detail and stressed that some parts of these dreams must be true. At the end of the day, SA Hyter had CTR1 King sign another statement acknowledging and explaining these fantasies in some detail, but again King stated that he absolutely never acted on these fantasies and never committed espionage.
On October 1, 1999, the third day of questioning, SA Hyter conducted another series of polygraph examinations. SA Hyter asked King whether he ever had unauthorized contact with a foreign national and whether he ever had unauthorized contact with a foreign diplomatic establishment. King answered no to both questions. According to SA Hyter, he was unable to register an opinion on this polygraph. SA Hyter's interrogation logs from the day reflect that King was interrogated for roughly six hours. On October 2, 1999 SA Hyter administered another polygraph examination. In this exam, CTR1 King was asked whether he ever offered to provide any classified information to representative of a foreign government and whether he ever provided any classified material to representative of foreign government. His answer to both questions was no. While SA Hyter's report of this examination reflects that he was unable to render an opinion on this polygraph, SA Hyter lied to CTR1 King and told him that he failed this examination. By this point, it is clear from the tape recordings that SA Hyter was desperate for a confession.
Petty Officer King repeatedly denied any act of espionage. While these exculpatory statements were recorded on audiocassette tapes, they were concealed from the defense for 14 months of CTR1 King's confinement. For example, CTR1 King is heard saying:
"I can say for a one hundred percent fact that I have never committed espionage or anything like that."While statements like this can be heard clearly on the tapes, they were conspicuously absent from any of his written statements or the NCIS reports of investigation. It should come as no surprise that the Agents stopped using the recording equipment after these statements on October 2, 1999. When the defense interviewed SA Hyter, he informed us that NCIS headquarters initially told him to record the interrogations, but at some point he was specifically instructed to stop recording.15 As a result, we are left speculating as to exactly what happened after October 2nd. However, several salient facts establish that the coercion continued.
"I might have fantasized about it, but over the past twenty years I never contacted any foreign national."
In response to a question about additional details in his fantasies, King is recorded as saying: "I don't know, I don't know, I don't know (raising his voice and becoming emotional), I don't know how to tell you this, but I don't know."
"I'm starting to make stuff up to please you..."
"I don't know what I'm supposed to give you."
15 The defense is aware of only two other recordings that were made after October 2, 1999. On October 19, 1999, the NCIS made a video recording of CTR1 King's interview with Dr. Michael Gelles, a staff psychologist with the NCIS. Also, the government recorded an interview of CTR1 King that took place at the Pentagon on October 25, 1999. In both of these recordings, King made highly exculpatory statements. In fact, CTR1 King made exculpatory statements on every recording that has been produced to the defense.Many of these statements were actually recorded on audiocassette tapes that the government had in its possession from the inception of this case but concealed from the defense. The prosecutor flagrantly violated her independent and affirmative duty to disclose these tapes. The prosecutor was either grossly negligent in failing to review the evidence in her possession, or she committed the most egregious form of prosecutorial misconduct by deliberately withholding evidence of CTR1 King's innocence.
It is not surprising that the charges were dismissed just weeks after these tapes were released to the defense. These tapes reveal that CTR1 King repeatedly and adamantly professed his innocence before, during, and after his so-called confessions. These statements, however, were conspicuously absent from the agents reports of investigation. Had these tapes been properly released at the outset, CTR1 King would not have suffered such a tremendous loss of freedom and damage to his reputation. 16
16 CTR1 King spent two Thanksgiving and two Christmas holidays incarcerated and away from his family. During this incarceration, CTR1 King's mother became terminally ill and wanted to see her son. Despite her understandable wish to see her son released and cleared of these accusations, she passed away without ever speaking to her son or knowing the outcome of this case. The costs of these personal losses are immeasurable and indelible.On October 5, 1999, Special Stewart Wilson joined the investigation and assumed the role as lead case agent. SA Wilson works in the counterespionage division of the NCIS in Washington, D.C. and he traveled from Washington, D.C. to Guam to question King. Shortly after his arrival, King told the agents that he wanted to speak to a lawyer, which is documented in his statement of October 6, 1999. At this point, all questioning should have stopped immediately. The caselaw creates a bright line rule that requires police to stop questioning on a dime when an accused invokes his right to counsel. However, after flying to Guam, SA Wilson had no intention of letting the right to counsel interfere with his interrogations. SA Wilson disregarded this request and told King that he was not going to let him speak to an attorney. Experts in the field of national security have noted that an accused's rights and a potential future prosecution are sacrificed as secondary considerations by espionage investigators. 17
17 Barbara Bradley, Navy Petty Officer Held For 500 Days on Suspicion of Spying for Russia Finally Released Without Being Charged, National Public Radio, March 28, 2001At that point, SA Wilson and SA Hyter both interrogated King for more than nineteen hours. This interrogation session started at 9:00 in the morning on the 5th of October and ended at 3:30 in the morning the following day. At the end of this marathon, King signed a false confession where he admitted to sending a disk to the Russian embassy. Later that evening, King was brought back to the interrogation room and was interrogated for three more hours.
On October 8, 1999, King made two written invocations of his right to counsel early in the morning session with SA Alex Bedoya. In one of these written requests, King refers to his earlier request for counsel on October 5, 1999. This chronology of events is alarming. The fact that the agents had CTR1 King sign a waiver just days after his original request for a lawyer indicates a knowing violation of his constitutional rights and a subsequent attempt to cleanse or repair that violation. Only the Supreme Court has made it perfectly clear that police officers can not repair prior deprivations of the right to counsel with retroactive waivers. This reference on the 8th to his earlier request for counsel on the 5th is particularly revealing because there is no corresponding reference in any of the NCIS reports of investigation from the preceding days. When the defense interviewed SA Hyter, he said that he could not recall whether King ever mentioned his desire to speak to an attorney. As a request for counsel has such significant meaning to police officers and law enforcement personnel, it defies common sense that SA Hyter would not remember such a conversation. Moreover, the NCIS records reflect that SA Hyter participated in the interrogations on the 5th and 6th of October. CTR1 King's requests for counsel were completely ignored and SA Bedoya, SA Wilson, SA Hyter and SA Sherry continued to interrogate him for 12 hours, from 8:00 a.m. until 8:00 p.m.
This pattern of all day interrogations and sleep deprivation continued. Agents insisted that CTR1 King confess to fantasies and yet he continued to deny that the statements were true. The coercive techniques, sleep deprivation and constant monitoring wore away at CTR1 King, who could no longer tell the difference between fact and fantasy. On October 19, 1999, CTR1 King is taken, at his request, to see NCIS psychologist Michael Gelles. This meeting was recorded. During a 45-minute videotape of this meeting, CTR1 King is seen telling Dr. Gelles that he has no memory of any of the espionage activities to which he had earlier confessed and that he could no longer distinguish fact from fantasy. King even asked the doctor to give him sodium pentathol or truth serum. The tape of this meeting, along with the audio taped interrogations, was also withheld from the defense for 14 months.
On October 25, 1999, King was questioned at the Pentagon. This interview was recorded and King provided a detailed synopsis of his entire career. At the end of this tape, CTR1 King is heard yet again contradicting his earlier confession. Specifically, CTR1 King said apologetically, "I know you don't want to hear this, but I don't think there ever was a disk," or words to that effect. Three days later NCIS finally relinquished its custody of CTR1 King and he was placed in the Quantico Base Brig on October 28, 1999.
Three days later, on October 31, 1999, CDR Jowers, LT Mindi Seafer and SA Kenny Rogers took a trip to Quantico and interrogated King at the brig. Despite hundreds of pages worth of information gathered by NCIS, 29 days of continuous interrogation by teams of trained NCIS agents, and CTR1 King's repeated requests for counsel, CDR Jowers, LT Seafer and SA Rogers proceeded to question King regarding the alleged offense.
In order to conduct this interrogation, CDR Jowers contacted SA Rogers, one of the NCIS agents assigned to the CTR1 King detail at the Homewood Suites, and asked him to accompany her to the brig on a Sunday morning. SA Rogers remembers CTR1 King responding to the interrogations by CDR Jowers and LT Seafer and refusing to confirm the violations for which he was confined. CTR1 King stated, as he had on several previous occasions, that he had no memory of such facts.18 SA Rogers stated that he did not take notes of the interview, but he does remember these statements. At the Article 32 proceedings, the defense raised the issue of the government counsel's failure to provide this exculpatory information to the defense. Despite the recollections of both CTR1 King and SA Rogers of the exculpatory statements, CDR Jowers only admitted to questioning CTR1 King but claimed to have no memory of any exculpatory statements.19 CDR Jowers promised the defense that she would check for notes of this meeting, but several months later she stated that she was unable to locate any such notes. This is just another alarming example of the exculpatory information that was withheld from the defense.
18 While SA Rogers refused to be tape recorded, there were five witnesses to this statement, including Jonathan Turley, LT Robert Bailey, LT Glen Girding, Billy Cochran and myself. LT Girding took careful notes during this meeting.This pattern of coercive and unconstitutional interrogations leading to admissions that were followed by denials establish that the government's sole evidence, the "confession", was wholly unreliable. The NCIS created a textbook environment for producing a false confession.
19 This admission can be found on the record of the Article 32 proceedings.
III. LACK OF CORROBORATING EVIDENCE
One of the unique and telling aspects of a coerced confession is its lack of corroboration. That is, when the government forces someone to confess to a crime that never happened, this coercion is reflected by the inability of the government to find evidence to corroborate the essential elements of that crime, i.e. the act of espionage. That is exactly what happened in this case. The government coerced a confession from CTR1 King, but then could find absolutely no evidence to corroborate his statement. This failure, however, was not for lack of trying. Agents virtually combed the globe and elicited help from other federal law enforcement agencies, but could not confirm any of the essential elements of the statement.
It is a well-established principle of law that, in order to admit a confession into evidence, the government must corroborate the essential facts of the confession. In other words the government must produce independent evidence, either direct or circumstantial, in order to create a sufficient inference that a confession is true. "The amount of corroboration required is slight and need only raise an inference of truth concerning the essential facts admitted in the confession."20 In this case, the government simply had no direct or circumstantial evidence to support espionage. 21
20 See United States v. Melvin, 26 M.J. 145 (CMA 1988)(emphasis added).The military judge who presided over this Article 32 hearing found that "the investigation in this case has apparently not revealed any direct evidence to corroborate the accused's confession." The government asserted that the existence of a daily log was sufficient to corroborate CTR1 King's confession. The military judge further noted that although a "slight" amount of corroborating evidence is legally sufficient to proceed to a court-martial, this log "barely, if at all, reaches that threshold."
21 In a letter from CDR Mark Newcomb, Force Judge Advocate, the government admitted that all the evidence of corroboration had been provided to the military judge and the defense. Moreover, the prosecution conceded this point and only proffered one document to corroborate the confession.
This section examines the lack of corroboration in several different categories. First, there is no witness to the alleged act of espionage. The government interviewed hundreds of people from around the world and could not find any witness who could corroborate any part of the confession. Second, there is no physical evidence of espionage or any foreign contacts. To the contrary, the Navy's investigation actually proved the impossibility of several claims contained within CTR1 King's statements.
A. Interviews and Government Witnesses
The NCIS and other law enforcement organizations interviewed hundreds of potential witnesses during the course of this investigation. The government interviewed practically every friend, family member and co-worker from CTR1 King's entire life. There is not a single witness to the alleged act of espionage. Furthermore, CTR1 King's closest friends and co-workers never heard him talk about espionage and thought it impossible that he could ever commit such an act.
To the contrary, these interviews revealed information that actually supports the finding that his confession was coerced. CTR1 King's close friends and co-workers described him as very susceptible to pressure. They reported that CTR1 King dislikes confrontation, has a very strong desire to please others, and has a very low self-esteem. In addition, his friends described him as having an exceptionally active imagination and a penchant for science fiction. CTR1 King was even known for discussing his dreams in vivid detail. It is clear from these interviews that CTR1 King is the type of person who, after several days of interrogation and intense pressure, would confess to something that he did not do. Moreover, the statements that he made contemporaneously with his so-called confessions, such as "I am just making stuff up to please you," are consistent with his character and reputation.
B. No Physical Evidence of Espionage
There is absolutely no physical evidence that CTR1 King ever committed espionage. With CTR1 King's permission and cooperation, the NCIS agents seized and searched all his worldly possessions. In a genuine espionage case, one would expect to find some trace of communications with a foreign national or foreign diplomatic establishment amongst these possessions and his personal and business records. For example, one could expect to find a letter, name, address, phone number, phone record, bank record, email record or some other indication that there was communication with a foreign national. The government checked all of these places and came up empty handed. There was not a shred of evidence to suggest that CTR1 King ever even communicated with a foreign national.
While the government classified several of the sources and methods used in this investigation, it should be noted that the government searched everywhere one might expect to find evidence of corroboration in this case, but found none. The government found no independent evidence to suggest that CTR1 King ever called the Russian Embassy on the telephone, visited the Russian Embassy in person or mailed anything to the Russian Embassy. Several other issues concerning the lack of corroboration involve classified information. As the Navy has denied access to our classified materials, we were unable to prepare such a report for this hearing. As such, we respectfully request an opportunity to present a classified report to the Committee at a later date.
C. Daily Log Offered by Government Does Not Constitute Corroboration
The sole evidence offered by the government to corroborate his statements consists of a two-page daily log that he kept as part of his normal duties. To suggest that this log constituted corroboration was a laughable proposition. The military judge examined this log thoroughly and found it to be wholly inadequate to corroborate the essential elements of the espionage charge. As a result the military judge concluded that the government's alleged confession would likely be deemed inadmissible at a trial due to a lack of corroboration, which is a basis for suppression separate and apart from coercion. To understand the absurdity of the government's contention, it may be helpful to consider an analogy. The government would have you believe that an accused's ability to describe the interior of his own bank would corroborate his confession that he stole money from the bank. That is absurd. Corroboration means that there must be independent evidence that confirms an essential fact of the charge. In this case, there is nothing about that log that relates to the act of espionage.
IV. EXCULPATORY EVIDENCE
In addition to the lack of credible evidence and corroboration, there is highly exculpatory evidence to demonstrate that CTR1 King never committed espionage. In other words, there is powerful evidence that tends to show that CTR1 King is innocent of the charged offense.
A. Tapes of Interrogations Session Capture Coercion and Recantations
Not only was this case built entirely upon a coerced and uncorroborated confession, the government withheld powerful evidence of CTR1 King's innocence. One of the most notorious moments in this case came when the defense discovered highly exculpatory evidence that the government had concealed from the defense. Despite several written demands for the production of our client's statements, whether written or recorded, the government withheld audio and video tapes from the defense for more than 14 months of CTR1 King's confinement. CTR1 King repeatedly professed his innocence throughout the 29 days of interrogation, and many of these statements were captured on audio and video tape.
I came across these tapes quite by accident. I was in the NCIS Field Office working on an unrelated case and supervising the fingerprinting of one of my clients. While there I asked to look at the evidence log sheet in the evidence locker room. The agent serving as evidence custodian provided me the log. As I was looking through the log, the agent who was fingerprinting my client asked the evidence custodian whether she knew I was a defense attorney. She said, "no," and was clearly surprised and uncomfortable with me looking at the log. By that point I had noticed several references to evidence regarding CTR1 King or, as NCIS called him, Regal Falcon, that the defense was unaware existed. These included numerous audiocassettes, microcassettes, 8 mm tape, and video tapes that we had been told did not exist. SA Hyter told us that he only recorded the first polygraph session, did not record any interrogations, and stopped recording at the direction of NCIS headquarters. When I asked the NCIS for access to these tapes, CDR Jowers specifically instructed the agents to deny my access to this information.
It is not coincidence the charges were dismissed just weeks after the tapes were released to the defense. These tapes reveal that King repeatedly and adamantly professed his innocence before, during, and after his so-called confessions. These statements, however, were conspicuously absent from the agents reports of investigation. Had these tapes been properly released at the outset, CTR1 King would not have suffered such a tremendous loss of freedom and damage to his reputation.
B. Interrogation Logs Withheld from Defense
The NCIS never produced the interrogation logs to the defense. In fact, despite repeated defense discovery requests, the NCIS never even acknowledged that such logs existed. The manner in which the defense ultimately discovered these logs is downright shocking. The NCIS provided these logs to CBS News apparently to rebut the defense claims that CTR1 King was interrogated for 29 consecutive days. In speaking to CBS News representatives, the defense learned that NCIS had provided logs of its interrogations to the media. Having never seen or heard about these logs, the defense asked CBS News for a copy. It is simply astonishing that the defense received highly exculpatory and discoverable evidence from the media, and not from the NCIS.
These logs corroborate the coercive nature of the interrogations. The logs reveal that CTR1 King was placed in a designated room and interrogated for more than 110 hours. These logs further document that individual interrogation sessions frequently lasted 12, 15 or 19 hours at a stretch, without taking breaks for food or use of the bathroom. The audacity of NCIS to withhold evidence that depicts the extraordinary length and frequency of their interrogations further underscores the coercive nature of these interrogations.
C. Facts Contained in Statements Proven to be False by NCIS
During the course of its investigation, the NCIS attempted to corroborate the details of CTR1 King's statements. However, instead of corroborating the details, the NCIS actually proved the falsity or impossibility of several of the essential facts contained in his confession. This should hardly be surprising considering that the agents forced CTR1 King to literally spin a tale of espionage. There are so many illustrations of this point that it would be unmanageable to list them all here. A few significant examples will serve to illustrate the point.22
22 Additional examples will be included in our classified filing.The government alleged that CTR1 King mailed a disk containing classified information to the Russian embassy. It is rather self-evident that he would need the mailing address to accomplish this task. CTR1 King's statement said that he obtained the address from the website for the Russian Embassy. The NCIS, however, discovered that no such website existed at the time of the alleged offense. It would have been impossible for CTR1 King to find the address, and thereby complete the act of espionage in the manner described in the confession.
The NCIS agents discovered other evidence indicating the impossibility for CTR1 King downloading a classified log to a disk, as the NCIS typed in the October 6th statement. Without going into classified areas, it is sufficient to note that some evidence indicated that it was impossible.
As another example, CTR1 King allegedly stated that he planned to meet a Russian national at a Baskin-Robbins ice cream parlor at a particular mall in Maryland. CTR1 King has repeatedly stated that this statement is absolutely false and that he has never had contact with foreign national. When the NCIS agents traveled to the mall, it was confirmed that there was no Baskin-Robbins at this location.
The government has alleged that CTR1 King admitted to other security violations during the course of his questioning. Specifically, the government alleged that CTR1 King admitted to removing a classified document from his workspaces in Guam. The NCIS, however, obtained a copy of this document from his computer at work and determined that it was completely unclassified. In fact, his computer did not have the capability to obtain the type of classified document he referenced in his statement.
D. False Statements and Violations of Judicial Process by NCIS
NCIS Director David L. Brant made several blatantly false statements to the media concerning this case. First, Mr. Brant reportedly told the press that his agents followed the Department of Defense guidelines for administering polygraph examinations. Not only is there considerable historical evidence to demonstrate the falsity of this statement,23 but the facts of this case clearly show that NCIS polygraph techniques in this case amounted to textbook violations of the governing regulations. This is particularly troubling considering that several Navy officials "close to this case" have leaked information that CTR1 King repeatedly failed polygraph tests. In reality, CTR1 King registered inconclusive on most of the examinations. As for the examinations he failed, the polygrapher was interrogating him and telling him that he was a spy before administering the exam, which any credible polygrapher would say violates the DoD regulations and inevitably causes elevated responses. The nature of these violations are discussed in greater detail in the testimony of my counsel LT Robert Bailey.
23 See Written testimony of Professor Jonathan Turley, lead defense counsel, for elaboration on the documented abuses by NCIS agents.In another false statement, NCIS Director Brant reportedly told the media that his agents never interrogated CTR1 King after he was ordered into confinement on October 28, 1999. This statement is patently false. SA Kenny Rogers admitted to the defense that he participated in an interrogation of CTR1 King at the Quantico Base Brig. This interrogation occurred a few days after King was ordered into confinement. CDR Jowers acknowledged that this meeting took place and it is reflected in the visitor log-book for the brig.
NCIS Director Brant has demonstrated an unmistakable willingness to defy of judicial process and the rule of law. In United States v. SGT Vinh Nguyen, USMC, a recent military justice case before the Atlantic Judicial Circuit, Mr. Brant was ordered by the trial judge to produce documents within his possession and control, as these documents were deemed material to the defense case.24 After Mr. Brant disregarded the first order of the court, the military judge issued three additional orders directing Mr. Brant to produce the documents in question. Mr. Brant, however, willfully and blatantly refused to comply with these orders and withheld the evidence from the defense, the prosecutor and the court. In response to this repeated and deliberate defiance of judicial authority, the prosecutor in this case stated that Mr. Brant had no legal basis for his noncompliance and recommended that the trial judge hold Mr. Brant in contempt of court. However, unlike federal or state court judges, military judges do not have contempt power for violations of court orders. Despite ruling that the Mr. Brant clearly violated the court's orders and the accused's Sixth Amendment right to compulsory process, the military judge and the prosecutor declined to refer this matter to the United States Attorney's Office for intervention, despite several defense requests. Not only was it hypocritical and unconstitutional for Mr. Brant to defy the court's authority, but it was criminal under Article 47 of the Uniform Code of Military Justice, which makes it a federal crime to refuse to comply with judicial process.
24 I served as individual military defense counsel in this case. On March 16, 2001, SGT Nguyen was convicted of one specification of distribution of ecstasy and sentenced to a reduction in grade and ordered to pay a fine. See United States v. Nguyen, Docket No. 01-8026/NA, Court of Appeals for the Armed Forces (March 2001).E. COOPERATION BY CTR1 KING
CTR1 King's behavior during the course of the interrogations is inconsistent with guilt, and is exculpatory in and of itself. He cooperated and told the NCIS agents every detail about his life and his career. He even volunteered himself for hypnosis or drugs therapy to probe further into his memory. These are hardly the actions of someone who has something to hide. The practices of the NCIS interrogators had so thoroughly confused CTR1 King that he could no longer distinguish between dreams and reality. He denied any act of espionage but through constant interrogation, monitoring, sleep deprivation and abusive interrogations, the agents had convinced him that he must have done it because the polygraphs said so.
Once the agents convinced CTR1 King of this absurdity, they played on the true elements of his character and fidelity toward the Navy and the United States to convince him to provide as much detail regarding his background as possible. At a taped session held on October 25, 1999, in the Pentagon, CTR1 King told NCIS agents and other officials about every aspect of his career. He relayed as much information about every program that he could remember being associated with throughout his career. He told his interrogators that he wanted them to have this information just in case he committed the acts he could not remember but NCIS agents insisted were real. He wanted to make sure that the Navy was aware of this information so they could take corrective action to prevent further compromise of information or the endangering of sailors' lives. CTR1 King provided this information precisely because espionage was inconsistent with his character and he wanted to guard against the unthinkable. These are not the actions of a traitor.
Throughout his 29 days of custodial interrogations, CTR1 King repeatedly denied having ever committed espionage. Many of these powerfully exculpatory statements were captured on audio and video tape. On these tapes, CTR1 King is heard saying, "I can tell you for a one hundred percent fact that I never committed espionage or anything like that." Instead of actually conducting an independent investigation, the agents pressured King to discuss fantasies and hypothetical examples of espionage. In response to demands for the details of his fantasies, CTR1 King is heard saying, in an exasperated voice, "I don't know, I don't know, I DON'T KNOW. I don't know how to tell you this, but I just don't know." The interrogators were undeterred by these emotional outbursts and continued to pressure CTR1 King to write out his fantasies in painstaking detail, filling in any factual gaps with his imagination. After several more hours of pressure, CTR1 King played along and discussed his fantasies, but all the while he clearly stated, "I am just making this stuff up to please you." It is not surprising that the agents stopped recording the interrogations soon after these statements were made and these statements never appeared in the agent's notes or reports of investigation. CTR1 King's false confession was made two days later, after his repeated requests for counsel were denied and after a nineteen hour interrogation session. It is clear from these tapes that, when the Navy investigators found no evidence of espionage, they proceeded to manufacture evidence to justify what can only be described as a colossal blunder. Not surprisingly, just weeks after the defense discovered this evidence, the government dropped the charges against King and allowed him to retire from the Navy with a full pension and benefits. I strongly urge this Committee to demand the release of these tapes so that the public can hear how the Navy obtained a false confession in this case.
The Navy never had evidence to support its case against CTR1 King. Its investigators concocted an espionage case out of indeterminate polygraph results, coercion and the fantasies of a sleep deprived and threatened highly decorated sailor with 20 years of honorable and faithful service. The NCIS took every available step to confirm the confession it coerced out of CTR1 King and failed. To the contrary, investigating agents found more evidence indicating CTR1 King did not commit the acts alleged in his statements than they did evidence to corroborate them.
Rather than admit error, the Navy deprived one of its sailors of 520 days of his life and engaged in a pattern of public slander that will haunt him for the rest of his life. Such practices are an affront to the values every service member swears to uphold upon entry into the service of their county. The Navy and the NCIS may not be permitted to continue such practices if the armed services are to remain a bastion of American ideals and the protector of our constitutional values and freedoms. Investigation and meaningful reform is necessary to prevent such abuses from destroying the lives of other sailors and undermining the concept of a volunteer and professional armed force.
It is deeply troubling to me that the Navy has never issued a formal apology to CTR1 King and his family for this colossal miscarriage of justice and that no government officials have been held accountable. I would be happy to answer any questions that the Committee may have regarding my testimony.