Espionage

LCDR Edward C. Lin

A Navy officer charged with espionage will be arraigned Tuesday after the commander of U.S. Fleet Forces Command referred the case to a general court-martial, the Navy said Friday.

That is the report from The Virginian-Pilot, 13 May 2016. The paper also reports:

The last time a sailor was convicted of the crime was in 2006, when Petty Officer 3rd Class Ariel Weinmann pleaded guilty to espionage and attempted espionage. He was sentenced to 12 years in prison.

Lin was assigned to a secretive patrol squadron in Hawaii at the time of his Sept. 11 arrest at the Honolulu airport, and his prosecution has been designated a “national security case” by the Navy.

I was at the ground floor in 1988-90 when the Navy first started classifying certain cases as a "national security case." Such cases range from the seemingly mundane of negligent handling of classified material to the more serious charges as appear in LCDR Lin's case.

The most common problems encountered in such cases involve the evidence and its classification and now do you prosecute or defend a case where the evidence and testimony is classified.

Navy Times has reported:

The U.S. Navy will seek to prosecute an alleged spy using closed court proceedings because the allegations against him have brought worrisome attention to the military's secretive intelligence gathering activity, the service's top officer told Navy Times on Wednesday.

Military Rule of Evidence 505 governs how the lawyers and court involved deal with classified evidence. The military rules are similar to the Classified Information Procedures Act used in federal court. Keep in mind there are potentially several issues that begin from day one of any representation.

The most important being, how do you talk to your client? For me this is a case of been-there-done-that--the military defense lawyer needs a security clearance to even talk to the client about anything classified.

The next item is discovery. How do you know what to ask for as evidence or potential evidence, how do you get it, and how do you review and use it. There are several steps you might expect: once cleared and read-in you will have to review the material in a properly secured space, you will have to have a proper security location to store any information you are allowed to keep, you will have to have a procedure to store and safeguard case notes you make. Bottom line, these cases can be administratively and time consuming. All of this is before you even get to the Article 32 preliminary hearing or trial.