X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Uncharged and unindicted, accused spy Daniel M. King spent nearly 500 days alone in a six- by eight-foot cell at the U.S. military prison in Quantico, Va. Then he walked out a free man. A father of two and a 19-year Navy veteran with five commendations, Navy First Class Petty Officer King worked as a cryptologist at the secretive National Security Agency in Ft. Meade, Md. But when the Navy in late 1999 said he was a spy, the 41-year-old sailor was assigned instead to the “special quarters” wing of Quantico that John Hinckley Jr. once called home. The Navy accused King of passing secrets about U.S. submarine intelligence gathering to Russia. But after 16 months, the Navy couldn’t prove its case — in part because it never got the chance. A continuous series of Navy missteps, deftly exploited by King’s lawyers, eventually led to King’s unconditional release on March 9. His civilian lawyer, Jonathan Turley, a professor at George Washington University Law School, attributes the unprecedented length of his client’s detention to a bad-faith effort to cover up a flimsy case. A military appeals court — and eventually Navy officials — say that prosecutors were simply ill-equipped to handle a complex espionage case. King, staying with Turley at his Alexandria, Va., home, will retire with a full pension and plans to return to his home in Elyria, Ohio, and work at his family’s bakery. Though he’s thankful for his release, the depth of his sadness is plainly evident when he speaks of the missed birth of a grandchild and the death of his mother. Her last words, recounts his sister Alice, were of her concern for her son’s welfare in prison. NO APOLOGIES The Navy, however, remains unapologetic. “The main reason why we dismissed the charges was that terrible balancing act between national security and due process,” says Commander Roxie T. Merritt, a Navy spokeswoman. Pointing to the conflict between the Navy and Turley over public access to the proceedings, she says prosecutors were being forced to reveal too much classified data. In a March 9 letter urging dismissal of the case, Commander James P. Winthrop, who supervised the prosecution as a military judge, says he made errors and that “there is plenty of blame to go around.” The espionage charge “is based exclusively on a confession that the accused subsequently contradicted” and lacked strong corroborating evidence, he wrote to Vice Admiral Joseph S. Mobley, the convening authority of the prosecution. Neither lead prosecutor Commander Lynn Jowers or Staff Judge Advocate Commander Mark E. Newcomb returned calls seeking comment, though Merritt says that Newcomb is retiring and Jowers had been re-assigned, though she has no knowledge if either move is related to the King prosecution. The allegations against King stemmed from a routine polygraph test he took in Guam in October 1999 prior to his scheduled transfer to Maryland. “I was sitting on the couch outside the NCIS office when I heard someone say ‘spy,’ ” says King. Shortly thereafter, he was taken into custody by the Naval Criminal Investigative Service, or NCIS. King says that statements he made during a 19-hour interrogation session in which he allegedly confessed were dreams that investigators urged him to recount. When he was moved to Washington, he was put in solitary confinement at the Marine Corps Base at Quantico as the Navy prepared an Article 32, or probable cause, hearing. Besides charging the NCIS with interrogation tactics such as sleep deprivation and veiled threats to his family, his lawyers say that the prosecution bungled the classification of documents, tried to curtail King’s attorney-client privilege and hid exculpatory evidence. Much of the initial delay was attributable to an extraordinary March 2 order by Adm. Mobley requiring that meetings between King and his lawyers, Lieutenant Matthew Freedus, Lieutenant Robert Bailey and Turley, be monitored by a security officer, and that communications between Turley and the military lawyers be monitored as well, since they had varying levels of security clearance. Turley challenged this requirement, appealing to the Court of Appeals for the Armed Forces. That court held on May 8 that the order did not use the “least restrictive” means to protect classified information, and ordered the Navy to equalize the security clearances of defense counsel. That took another two months. Though his first Article 32 hearing had been scheduled for Jan. 4, eight months later King had yet to be formally charged. During the summer and fall, Turley filed a flurry of challenges alleging security violations by the Navy. Then, last fall, an intermediate appeals court scrapped the first attempt at an Article 32 hearing, citing Navy violations of King’s right to a public trial. A new hearing was scheduled for Dec. 18, but by this time Turley had filed his petition for habeas corpus, citing the 120-day speedy trial requirement. Though King, in an affidavit filed while he was in jail, pleaded to be given the chance to prove his case, the tactic that seemed to wear down the Navy was Turley’s exploitation of its missteps to delay King’s Article 32 hearing. “[W]e cannot hold the government responsible for the defense’s decision to pursue such matters,” wrote the U.S. Navy-Marine Corps Court of Criminal Appeals Jan. 21 in denying the habeas petition. The court adds that “the government’s missteps in this case have been more a result of the prosecution’s relative lack of expertise in trying this type of case rather than bad faith or negligence.” But when Turley last month appealed the denial of his habeas petition, the Navy declined to brief a response. Also in February, Freedus, the defense lawyer, stumbled upon tapes of the 19-hour interrogation in Guam, in which a sobbing King reportedly said he will admit to anything if they stop the interrogation, Turley says. The tapes were clearly exculpatory, says Turley. “The Navy certainly provided a target-rich environment for a criminal defense attorney,” he says. After several attempts at negotiating a deal, on March 9 the Navy dropped the case. DOUBLE-EDGED SWORD King has been called the military equivalent of Wen Ho Lee, the Los Alamos nuclear scientist who was detained for nine months before his release last fall. In both cases, prosecutors conceded defeat, unable to make their charges stick. In both cases, the prosecutors said the case was dropped not because of the defendant’s innocence but because they would be forced to reveal too much secret data. But therein lies the dangerous nature of such prosecutions. “Running a classified trial is very difficult and the risk of leaks of classified info is not insignificant,” says Barry P. Steinberg, former chief of litigation for the U.S. Army. “There’s a bluff — the defense counsel says he wants it all, although not all of it will be helpful.” As for Turley, he says he is planning a civil suit. King’s plans are more simple — to return to his family. Turley, recalling the drive to Quantico to tell King of his mother’s death, says the damage will never be undone. “The most difficult aspect of that type of duty is the realization that we could never make Danny whole after an experience like that,” says Turley. “I kept on thinking about my mom,” says King of his time in Quantico after he learned of his mother’s death. “She didn’t know at the time whether her son would be executed or not.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.