The sensitivity of the classified information accused spy Lt. Cmdr. Edward Chieh-Liang Lin passed to China and Taiwan could make the case difficult to prosecute by military litigators and could lead to a plea deal on lesser charges, two former military lawyers told USNI News.
Lin, 39, was in a leadership position in one of the U.S. Navy’s most closely guarded signals intelligence units when he was detained in September and accused of two instances of espionage and three others of attempted espionage.
It’s still unclear what classified information Lin is alleged to have shared but given his position it could have been among the Navy’s most sensitive signals intelligence secrets.
Three months after he was detained, early results of the investigation prompted a potential national security alert to Navy leadership in December.
And it’s the nature and level of classification of those secrets that will make prosecution by the Navy’s Office of Judge Advocate General challenging – potentially due to a legal tactic known as “graymail,” former military lawyers told USNI News.
“‘Graymail’ occurs when a criminal defendant, whether for legitimate reasons or otherwise, threatens to disclose classified information during the course of a trial hoping that the government will forego prosecution rather than see the information disclosed,” read a definition in a 2013 U.S. Army JAG military justice manual.
In the case of Lin – whose case has been deemed a “national security case” – prosecutors may be inclined to negotiate a plea deal to lesser charges to keep the information secret, Rob “Butch” Bracknell, a former Marine and military lawyer, told USNI News last week.
“If the actual method and technologies for [Navy signals intelligence] collection are relevant to the government’s proof, you may see a plea to keep that stuff out of open forums,” he said.
“The government will have to weigh the punishment, retribution and deterrence value of full litigation for a lengthy sentence against the damage that will result — and the cost and difficulty — of fighting over classified disclosure.”
Graymail defenses have resulted in reducing charges in high profile cases involving classified information — including the 1980s prosecution of former Marine Lt. Col. Oliver North for his role in the Iran-Contra affair.
“The [North] defense team’s efforts to seek the admission into evidence of classified information during the trial resulted in the dismissal of the central conspiracy count and other theft counts,” read a 2006 article in New York Law Journal.
North was indicted on 16 federal counts in 1988 but plead guilty to three less serious charges in 1989 – in large part due to the threat of the revelation of classified information in the court proceedings.
Graymail may have also played a role in the Department of Justice dismissing several charges against leadership at the North Carolina private security contractor formerly known as Blackwater – now called Academi – in 2013, according to the Project on Government Oversight. Felony charges that could have resulted in decades in prison for top leadership were dropped and only two lower level executives plead guilty to much less serious misdemeanor charges.
The advantage that Navy prosecutors have in the Lin case to prevent the disclosure of classified information – if Fleet Forces commander Adm. Phil Davidson elects to go forward with a court-martial – is much of the proceeding may be held in closed sessions in a military courtroom.
Last week, Chief of Naval Operations Adm. John Richardson told the Military Times editorial board, “Much of the disposition of this case will be done in classified venues.”
Military prosecutors have an advantage in that a court-martial jury pool can be composed of members that can be cleared to hear the information, retired Air Force lawyer Maj. Gen. Charles Dunlap told USNI News on Monday.
“Courts-martial are a bit more conducive to these cases — much because the “jury” or panel as it is called can be assembled from persons with security clearances — but they are still difficult,” he said.
“Even if defense counsel were not disposed to a graymail strategy, closed court hearings, sealed testimony, secure facilities and more are inevitable aspects of these cases, and they operate to significantly complicate the prosecution’s job, and open up issues for appeal if there is a conviction… Cases involving highly-classified material are always going to be a challenge despite evidentiary rules designed to minimize the possibility of graymail.”
The level of classification of the secrets could also be a reason the Navy is trying the case rather than the Department of Justice. Lin was investigated by both NCIS and the FBI resulting in the charges he could face at court-martial. If prosecutors can’t effectively argue the espionage and attempted espionage charges due to classification he still faces other charges for violating the Uniform Code of Military Justice.
In addition to the espionage and attempted espionage allegations, prosecutors also allege Lin transported classified information, traveled out of the country without permission, lied about his travel on his return, patronized prostitutes and committed adultery – all prosecutable under U.S. military law.
