UCMJ and Espionage

Espionage - The alleged release of scores of documents by PFC Bradley Manning has brought national security cases back into the limelight.

In the late 1980′s national security cases were front and center because of the Walker "spy" scandal involving father and son. The son being in the Navy and assigned to USS NIMITZ. The cases became known to some as "The Navy's Biggest Betrayal," John Prados, USNI 24(3) Proceedings, July 2010.

In 1989 Mr. Cave was designated by the Judge Advocate General of the Navy as one of a very small number of judge advocates qualified to prosecute or defend national security cases. Mr. Cave has the ability to obtain appropriate TS/SCI access if retained as counsel for a case involving classified information. A national security case designation actually covers a wide range of misconduct from simple mishandling of classified material to espionage on behalf of a foreign government, or a case such as that of Bradley Manning.

The UCMJ has several specific provisions relating to espionage (UCMJ Article 104, aiding the enemy; UCMJ Articl 106a, espionage), the federal "espionage" statute (generally found in 18 U. S. Code §793 et. seq., can be applied through UCMJ Article 134(3), crimes and offenses not capital, and UCMJ Article 92 can be used to prosecute people for violating orders about the security, handling, and custody of classified information (for example Paragraph 4-6(k), Army Regulation 25-2). Congress has not declared war since World War II, and has not done so for the current actions in Iraq or Afghanistan.

...shows that the military is using two of the available charges to prosecute him. Whether they would be successful on all of the current charges may be an issue. Here is a link to proposed charges as of July 2010. The charge sheet can be changed for various reasons: new charges are discovered and added, new evidence is discovered, a UCMJ Article 32, hearing is held and the investigating officer recommends additional charges, or the command realizes they can't prove some of the current charges. (Note, this is an initial charges sheet. The charges may be changed as a result of greater attention to the evidence and recommendations of an Article 32, UCMJ, investigation.)

Before going further it should be noted that the term "national security case" can cover a wide range of alleged unacceptable behavior by the Service Member. Talking with an experienced and national security case informed military lawyer can be very important if you are suspected or accused of doing something wrong in the handling, disclosure, or custody of classified information.

1. Evidentiary privilege. Military Rule of Evidence 505 (Mil. R. Evid. 505) covers situations where classified information may be an issue in a case. The rules sets out specific notice and handling requirements when classified information may become an issue and how to handle evidentiary hearings. Also, the Services have developed regulations for the appointment of a Court Security Officer, courtroom security requirements, and access to closed sessions of court. Here is a summary of an article about this complicated rule of evidence.

The advent of the cold war brought concerns over classified national security information becoming public in criminal trials. The federal government, in response, enacted the Classified Information Procedures Act (CIPA)2 in 1980. During the same time the CIPA was being finalized in Congressional conference, President James Carter provided the United States Military with a similar mandate to protect evidence. Rather than a creating a specific act, the executive branch provided the military a "privilege" mechanism to prevent disclosure in the Military Rules of Evidence (MRE), under rule 505.3 From its inception until 1990, military prosecutors made little use of MRE 505. However, in United States v. Lonetree,4 a court-martial was tasked with protecting sensitive information regarding Soviet-directed espionage. The trial court had to balance the inherently broader discovery rights of an accused against the need to protect information crucial to national security.5 Since Lonetree, little analysis has occurred regarding the use of MRE 505. Yet, MRE 505 remains an important feature of military justice, just as CIPA does to federal law. Because military members may be prosecuted for the failure to control or maintain sensitive information, the future likelihood of MRE 505 being invoked by the government is almost certain. Indeed, in the past two years, military prosecutors in two high-profile cases, United States v. Yee,6 and United States v. al-Halabi,7 have invoked MRE 505's protections. Currently, with trials stemming from the abu-Gharib prisoner of war abuse investigation, and the overall "Global War on terrorism," knowledge of the parameters of MRE 505 will be important to all sides in the court-martial process.

See Major Joshua E. Kastenberg, Analyzing the Constitutional Tensions and Applicability of Military Rule of Evidence 505 in Courts-Martial Over United States Service Members: Secrecy in the Shadow of Lontree, 55 A. F. Law Rev. 233 (2004).

2. Closed hearings. Under Military Rules of Evidence 505, the military judge can order portions of the trial closed to everyone except the accused, his counsel, the prosecutors, the Members, the court-reporter, and a bailiff. This is one of several limited exceptions to the Sixth Amendment right to a public trial. The right to a public trial applies to a court-martial under the UCMJ. See e.g., United States v. Harvey, 64 M.J. 13 (C.A.A.F. 2006).
3. Special procedures for the handling of evidence and testimony.
4. Limitations on access to court.
5. The need for counsel, the court reporter, the judge, the bailiff, and the Members to have the appropriate level of clearance and access. This requirement can be important in non-national security case situations. For example I have had experience in cases where a person is accused of an offense under the UCMJ, and in order to defend the person we needed to have access to classified information and present classified information at trial. This will most commonly happen when the accused Service Member is trying to present good military performance and character evidence. The recent case of United States v. Murphy, Misc. Dkt. No. 2007-03, 2008 CCA LEXIS 511 (A. F. Ct. Crim. App. December 22, 2008), is a noteworthy example.

A most interesting recent case

United States v. Diaz, 69 M.J. 127 (C.A.A.F. 2010), is a recent case which has completed the appeals process. Note discussion of whether motive for releasing documents can be relevant to a defense. LCDR Diaz was a Navy judge advocate assigned to represent a detainee at Guantanamo.

A general court-martial composed of members convicted Appellant, contrary to his pleas, of one specification of violating a lawful general order, one specification of conduct unbecoming an officer and a gentleman, one specification of communicating classified information, and one specification of removing classified material, in violation of UCMJ Articles 92, 133, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 933, 934 (2000). The members sentenced Appellant to six months confinement and dismissal from the Navy.

From July 6, 2004, to January 15, 2005, Appellant was assigned to Joint Task Force Guantanamo Bay (GTMO) as a Deputy Staff Judge Advocate (SJA). Upon arriving at GTMO Appellant received an initial security briefing and signed an acknowledgment of that briefing. He also received a security memorandum addressing prohibited activities, which included "[c]ommunicating, discussing or disseminating classified information" relating to any operations at GTMO and "[u]sing non-secure means to discuss classified information" regarding such operations.

On December 17, 2004, Barbara Olshansky, an attorney working for the Center for Constitutional Rights (CCR) in New York City, wrote letters to the Secretary of Defense, the Secretary of the Navy, and senior Department of Justice attorneys seeking names and information regarding detainees held at GTMO. Appellant was the point of contact for such correspondence at GTMO. In January 2005, the judge advocates at GTMO, after consulting with leadership in the Department of Defense and Southern Command, agreed to a response rejecting Ms. Olshansky's request.

On January 2, 2005, Appellant used his computer to run a search on the Joint Detainee Information Management System (JDIMS), seeking a list of detainees. The military judge found that JDIMS is a web-based repository of sources in which detainee information and intelligence is collected and stored. To access JDIMS one must first log onto SIPR, which is a SECRET level computer system. The majority of information in the JDIMS system is considered classified.

While logged onto JDIMS Appellant printed out the list of names of detainees then being held at GTMO. The printout included each detainee's full name, "Internment Serial Number," country of origin, country of citizenship, and other identifying information, including ethnicity, source identification number, and information regarding the detention or interrogation team assigned to each detainee. The printouts themselves were not marked with a classification label.

Two weeks later, on January 14, 2005, Appellant transmitted the list of names of detainees to Ms. Olshansky in New York City. He did so by cutting the printout into more than twenty pieces of paper, placing them in a Valentine's Day card, and mailing them to Ms. Olshansky. Ms. Olshansky did not have a security clearance and was not authorized by the government to access detainee information in the JDIMS system. She did not read the entire list of names contained in the document in the card. Ms. Olshansky and her colleagues at CCR discussed the card and its contents, holding them for approximately two weeks, during which time the card and its contents were kept locked in a file cabinet drawer. Recognizing that the document probably should not have been sent to her, she also consulted an attorney. She then contacted the judge handling the GTMO detainee habeas case she had recently filed on behalf of her organization. A court security officer retrieved the documents and accompanying Valentine's Day card.

Some of the same issues may come up in the court-martial prosecution of Bradley Manning who is alleged to have released thousands of documents.

Here are a few cases showing the types of cases seen at court-martial under the UCMJ.

United States v. Anzalone, 43 M.J. 322 (C.A.A.F. 1995). The accused was convicted by a military judge of attempted conspiracy to commit espionage, attempted violation of a general order, disobedience of a general order (4 specifications), attempted espionage (2 specifications), wrongful use of marijuana, wrongful possession of marijuana, adultery, as well as violating federal laws relating to defense information (4 specifications) and to mailing prohibited matters, in violation of Articles 80, 92, 106a, 112a, and 134, Uniform Code of Military Justice, 10 USC §§ 880, 892, 906a, 912a, and 934, respectively. The convening authority approved the sentence of a dishonorable discharge, 15 years' confinement, total forfeitures, and reduction to the lowest enlisted grade.

United States v. McGuinness, 33 M.J. 781 N.M.C.M.R. (1991), 35 M.J. 149 (C.M.A. 1992)(note: I was the Trial Counsel in this case) pack-rat case involving a Navy E-7.

Before a military judge sitting as a general court-martial, appellant pleaded guilty to two specifications of violating a Navy Regulation (OPNAVINST 5510.1G) by failing to safeguard classified materials in his possession, in violation of Article 92, Uniform Code of Military Justice, 10 USC § 892, and violating 18 USC § 793(e) and § 793(f)(1), charged under Clause 3 of Article 134, UCMJ, 10 USC § 934. The military judge sentenced him to a bad-conduct discharge, confinement for 2 years, total forfeitures, and reduction to the lowest enlisted grade. The convening authority approved the sentence.

United States v. Lonetree, 35 M.J. 396 (C.M.A. 1992). Lonetree was a member of the Marine Security Guard Detachment at the U.S. Embassy in Moscow. He met Soviet agent Violetta Seina in a subway station. He began a romantic liaison with Seina and eventually passed confidential information to a Soviet agent named Yefimov (a.k.a. "Uncle Sasha"). Ignorant of his activities, the Marine Corps transferred Lonetree to guard duty at the U.S. Embassy in Vienna, where he continued his contact with the Soviets through an agent named Lyssov (a.k.a. "George"). His double life came to an end on December 14, 1986, when, in the first of a series of meetings with two Vienna-station U.S. intelligence agents known as "Big John" and "Little John" ("the Johns"), Lonetree disclosed his involvement with the Soviet agents. Appellant was court-martialed and found guilty of conspiracy to commit espionage, disobeying Navy security regulations, disclosing the identities of covert agents, willfully communicating information in violation of the Federal Espionage Act, and committing espionage, and sentenced to 25 years' confinement.

United States v. Flemming, 38 M.J. 126 (C.M.A. 1993). Appellant, a Navy E-7, was tried by general court-martial on charges related to his mishandling of classified materials. He pleaded guilty with exceptions and substitutions to violating a lawful general order to safeguard confidential material, being derelict in the performance of duty, and stealing classified military property, in violation of Articles 92 and 121, Uniform Code of Military Justice, 10 USC §§ 892 and 921, respectively. Also, contrary to his pleas, appellant was convicted of one specification each of violating a lawful general order to safeguard classified material, willfully destroying military property, stealing classified military property, soliciting the destruction of classified materials, destroying classified materials, obstructing justice, and two specifications of violating 18 USC § 793(e) by possessing and retaining classified national defense materials, in violation of Articles 92, 108, 121, and 134, UCMJ, 10 USC §§ 892, 908, 921, and 934, respectively. He was sentenced to a bad-conduct discharge, confinement for 4 years and 1 month, and reduction to pay grade E-1. The convening authority approved the sentence but suspended confinement in excess of 24 months upon the recommendation of the staff judge advocate. The Court of Military Review set aside the findings of guilty to the two larceny specifications on statute-of-limitations grounds and affirmed the remaining findings; the court affirmed the sentence on reassessment in an unpublished opinion dated May 15, 1992.

Appellant was a member of the periscope photo team aboard the USS LA JOLLA (SSN-701). He took periscope photographs as well as made slides of material to be used in reports. Appellant often worked in his darkroom at home because he had more room and could produce better quality work. He was a "pack rat," and he had numerous slides of a classified nature in boxes in his home. Aboard his ship, he put slides in his shoe locker and pan locker to prevent people from handling them. This type of mismanagement of classified material led to the charges in this case.

United States v. Kaufmann,14 U.S.C.M.A. 28, 34 C.M.R. 63 (1963). An Air Force O-3 case. A captain of the Air Force stands convicted of having conspired with secret service agents of the so-called East German Democratic Republic to deliver to them national defense information relating to the United States, of agreeing to act as an agent of the East German Secret Service, and of violation of a general regulation by failing to report attempts by Russian and East German agents to induce him to reveal security information contrary to the best interests of the United States. If guilty, as presently adjudged, this conduct is reprehensible and indefensible. On the other hand, the case brings before us massive and deliberate violations of appellant's constitutional rights under the Bill of Rights, during the course of the investigation by the Office of Special Investigations. Paradoxically, such violations are admitted and not denied. Five of the assignments of error, in various forms, present questions of alleged unlawful search of appellant's quarters and eavesdropping by the OSI upon appellant's telephone conversations with his civilian counsel. We shall consider the assignments together and advert, also, to irregularities in the investigation and trial of the case.