At this stage of the investigation, DOJ decided to arrest Keyser for a lesser crime, 18 USC 1001, for making false statements. Senior government lawyers concluded that the available evidence would not support the test for a charge of espionage; it was assumed that a contrite Keyser would be asked to assist the US government in its formal damage assessment and assist the FBI in unraveling the true nature of his relationship with Cheng.
For a few days following the FBI interview and DS/FBI search of his house, Keyser probably convinced himself that the unfortunate episode was a simple misunderstanding and everything would be all right. With an arrest warrant in hand, on September 15, 2004, SA Cavalier and her FBI counterpart drove to FSI and arrested Keyser while he was working in a computer lab. He was led away to an awaiting government vehicle, all the while vigorously protesting his innocence. Out of respect and so as not to embarrass Keyser in front of his colleagues, he was not patted down or handcuffed until he was in the parking lot.
Keyser underwent a perfunctory medical check at the Alexandria detention center. He refused to be fingerprinted, revealing a petulant and combative character that was amusing to the law enforcement folks present. They were all too aware of his history of asserting his constitutional rights during legal situations. During Keyser’s 1985 divorce proceedings in Alexandria circuit court with his second wife, Virginia, he cited his Fifth Amendment rights under the US Constitution in declining to provide the court with the address of his residence or to provide details of the degree of his involvement with a female friend.
This time his refusal meant that he spent several hours in custody before submitting to the fingerprinting. He was eventually released on a $500,000 bond cosigned by his wife. He also surrendered both his diplomatic and “tourist” passports and was forced to wear a monitor ankle bracelet for approximately the next nine months
On September 16, 2004, the New York Times and the Washington Post reported on their front pages that Mr. Donald Keyser, a senior member of the State Department, had been arrested for “concealing a trip to Taiwan” and is “suspected of improperly passing documents to Taiwanese intelligence agents.”
What did General Huang’s and Cheng’s TECRO nominal boss Chen Chien-jen have to say about all this? Nothing much. He left Washington, DC, shortly thereafter. However, on September 24, 2004, the sixty-five-year-old diplomat was interviewed about the Cheng/Keyser case in his new position as Taiwan’s representative to the European Union. He said that Cheng was a rare civil servant, who was outstanding, and he respected her job, and he urged reporters not to make up stories about her. Most significantly, Chen, who was head of TECRO when Keyser took the side visit to Taiwan, declined to say whether he had been informed beforehand or afterward of Keyser’s September 2003 visit to Taiwan.
In a question and answer session before the Taiwanese legislature on September 23, 2004, Taiwanese premier Yu Shyi-kun said that it was hard to judge whether Keyser had passed discussion topics or classified information to the Taiwanese agents. He also stated that “according to one of Keyser’s close friends, Keyser had a habit of preparing talking points for people he meets with, and usually puts discussion topics in envelopes.” Vice Minister of Foreign Affairs Michael Kau stated before the same legislative session that his ministry had no knowledge of the Keyser/Cheng relationship. He would get the NSB’s transcripts of the communications sent by General Huang from TECRO without attribution.
A year later, in December 2005, senior TECRO official David Lee would advise American officials that Taiwan would not condone clandestine intelligence activities against the United States. This reaction was similar to the Israeli government’s public reaction following Jonathan Jay Pollard’s 1985 arrest for espionage. Cheng and Pollard were rogue operations who were certainly not known to, much less authorized by, senior government officials who depend on the generosity of the White House in all things international.
Months before Keyser’s arrest, Cheng married Chris Cockle, a Washington, DC–based correspondent for the China Post newspaper. Cockle was responsible for monitoring and reporting on the State Department’s relationship between the two Chinas. The DS and FBI investigators found the relationship between the journalist and the NSB agent intriguing.
On August 1, 2003, Philip T. Reeker, deputy spokesman for the Department of State, was taking questions from reporters gathered at a Foreign Press Center briefing in Washington, DC. Seated in the audience was Chris Cockle, representing his paper. Toward the end of the question and answer session, Cockle took the floor and asked, “About ten days ago, there was a senior Taiwan official who was in Washington for various meetings. However, we [the press] were never able to find out exactly why he was here or who he met with. I wonder whether you can give us some details as to who he met with and what was the outcome of those meetings, and whether the issue of the referendums [independence v. unification and Taiwan’s fourth nuclear power plant] was discussed?”
Reeker responded, “I really can’t. As you know, from time to time, in keeping with our One China Policy and our unofficial relationship with the people of Taiwan, we have had particular meetings, but I do not have any details to refer to you.”
Cheng should have known what the Taiwanese official was doing in Washington, but maybe she did not brief Cockle or else she did and Cockle needed a second source for his next article. Keyser definitely would have known all the details of the Taiwanese official’s activities while in the United States, but the two never met to my knowledge.
Shortly after Keyser’s arrest, Cockle sent a letter to his Washington-based Taiwanese correspondents urging them to verify facts before writing stories linking his wife to any counterintelligence activities involving Keyser, all the while imploring his colleagues to consider the implications of their stories. One wonders if the new Mrs. Cockle had been as candid with her husband as she was with the FBI that September afternoon in 2004.
Following his September 4 encounter with the FBI and DS agents, Keyser retained Robert S. Litt, partner at the powerhouse Washington, DC firm of Arnold & Porter. Litt counted former president Clinton among his clients. Between September 2004 and December 2005, Keyser and DOJ lawyers jockeyed for position on the outlines of a plea agreement, during which the court granted several extensions of time for the indictment of Keyser. During that time, Justice Department lawyers debated how to prosecute Keyser. Had, as Keyser claimed, the FBI and DS stumbled onto an intimate but nonsexual relationship? One in which he shared pre-cleared sensitive information with a known clandestine foreign intelligence officer as part of a department backchannel initiative with Taiwan? Or was Keyser a witting pawn and spy extraordinaire in the department?
Complicating matters was the question whether the government would go forward with an espionage prosecution and risk disclosing classified information concerning the US’s relationships with Taiwan and the PRC. Some of this classified information was simply too sensitive to reveal/authenticate in open court. The Justice Department had similarly refused to divulge similar sensitive information in the 2003 “Parlor Maid” case involving a married FBI agent, James J. Smith, who was intimately involved with Katrina Leung, an FBI counterintelligence asset and approved FBI double agent working against the MSS. Unfortunately the MSS “doubled back” Leung on the FBI, and DOJ was unwilling to reveal classified information during the ensuing trials. No espionage trial ensued. Leung eventually pleaded guilty to one count of lying to the FBI and one count of filing a false federal tax return, and Smith pleaded guilty to the charge of falsely concealing his alleged affair with Leung from the FBI and was sentenced to three months of home confinement.
DOJ attorneys approached a number of US government employees for their assistance in the prosecution. Many of the potential government experts declined or were unable to authenticate the classified nature of the information recovered from Keyser’s e-mails to Cheng. Their apparent unwillingness, and at times outright refusal, to assist created tension between DS and senior member
s of the Foreign Service.
Would the federal prosecutors settle for a safe plea agreement to the lesser charges of perjury and unauthorized retention of classified material in order to secure a conviction?
In late November/early December 2005, the lawyers reached an agreement whereby Keyser consented to plead guilty to a three count Criminal Information: one count of unlawful removal of classified documents and two counts of false statements. A plea arrangement between the government and a defendant constitutes a contract between two parties in which each receives the benefit of a legally enforceable bargain. DOJ offered Keyser a reduction in sentencing that potentially carried a maximum of thirteen years in a federal penitentiary in exchange for his agreement to “cooperate fully, truthfully, and completely with the United States, and provide all information known to the defendant [Keyser] regarding any criminal activity and intelligence activity by himself and/or others.” It was a straight-up quid pro quo deal.
On December 12, 2005, Keyser was seated in room 900 of the United States District Court for the Eastern District of Virginia. It is housed in a modern, ten-story, brick and stone structure, which some referred to as a twenty-first-century fortress, at 401 Courthouse Square in Alexandria. The courtroom was split in two with the courtroom well containing the judge’s dais separated from the counsel’s lectern and supporting tables for the judge’s staff, which consisted of the law clerk, the courtroom deputy clerk, and the court reporter. The other half of the room was occupied by seven rows of church-style pews. I was seated on one of the left side benches.
Keyser, thumbs pressed into his cheeks, sat on a hard wooden bench while his lawyer conversed with the DOJ attorneys. I noted with some surprise that only thirteen people were present before the start of the proceedings. Maybe it was too early in the morning for some, or perhaps a plea agreement was simply a teaser for things to come. For the FBI and DS team in the courtroom that morning, it was an ecstatic experience despite disappointment on the espionage charge.
As Litt and his defense team huddled with their client, Keyser talked, smiled, and laughed yet never once acknowledged the presence of his family seated behind him. Dressed in a light-grey and white pinstripe suit, Keyser appeared quite dapper and relaxed as he engaged his legal experts in a conversation unheard by the court spectators.
At 10:10 a.m., Judge Thomas Selby Ellis III entered the courtroom. Judge Ellis flew jet fighters with the Navy from 1961–1966 and then left military service to obtain his JD from Harvard University in 1969. He was nominated to the post as federal judge by President Reagan in 1987 and has been known to tell defendants, “life is about making choices and living with the consequences.”
Everyone stood up at the court clerk’s direction, wished his honor a good morning, and sat down after the judge installed himself in a massive leather chair behind his equally imposing desk.
“Good morning, Your Honor,” Keyser replied in response to the judge’s salutation as he left the defense attorneys’ table and moved to the podium. The court clerk administered the oath and Keyser said, “Good morning again, Your Honor,” in a calm and detached voice. But five minutes later, Keyser’s voice started to crack when he explained to the judge and the assembled audience that he knowingly and voluntarily waived his rights and would plead guilty to three violations of federal law. Keyser had concluded his preliminary statements, and it was time for Judge Ellis to review the government’s case against him.
As the judge recited the three counts against the defendant—willfully and unlawfully removing classified information from his place of work from 1992 to 2004, a violation of 18 USC 2071; making a false statement on his US Customs form on September 7, 2003, a violation of 18 USC 1001; and making a material false statement to a Diplomatic Security special agent on or about August 9, 2003, a violation of 18 USC 1001—Keyser gripped the sides of the lectern and listened impassively.
When the reading was concluded, Judge Ellis asked Keyser, “Do you understand the charges?”
Keyser put his hands in front of him, elbows resting on the lectern, and said quietly, “I understand, Your Honor.”
Judge Ellis listed the potential consequences of pleading guilty to each charge, indicating that the first charge could result in three years in jail without parole plus a fine of $250,000. The other two charges of false statement carried a maximum penalty of five years of federal incarceration without possibility of parole on each count and an additional fine of $250,000 for both counts. He noted that while the government and Keyser were bound by the sentencing portions of the plea agreement, the court was not similarly bound. He also advised Keyser that there would be no leniency in any future sentencing concerning Keyser’s expected cooperation with the FBI because cooperating with the debriefing was already a condition of the plea agreement.
Judge Ellis noted that Keyser’s attorney would be allowed to attend the debriefings administered by the FBI and State Department. In a decision that would come back to haunt Keyser, his defense team agreed to allow the results of any polygraph examination to be admitted in future court hearings if the government decided to contest Keyser’s plea. Judge Ellis reminded Keyser that in a trial the burden would be on the government to establish guilt beyond a reasonable doubt and to the unanimous satisfaction of all twelve jurors. Keyser stated that he understood.
The judge continued by asking if Keyser was offering to plead guilty because he believed that he was guilty. At 11:43 Judge Ellis directly asked Keyser, regarding Count One, “Are you in fact guilty?”
The defendant responded, “I am, Your Honor.”
The judge then asked him to explain in his own words what had led him to be brought before the court.
In response to charge one, for the count of unauthorized retention of classified material, Keyser explained that he had worked for the federal government for thirty-two years and it was common practice for department personnel to have their office materials packed up in boxes at the conclusion of an assignment and forwarded to their next posting. Employees can forward classified materials under secure methods to their next assignment under certain circumstances and with prior approval from their bosses, but not to their homes.
He further explained that he was “insufficiently attentive” when his personal materials from his last assignment in the Bureau of Intelligence and Research were collected at the conclusion of that assignment and boxed up. Keyser insisted it was a temporary secretary assigned to his office, whose name he could not recall, who was responsible for stuffing thousands of highly sensitive documents into empty cardboard boxes that eventually ended up in his house.
As I listened to Keyser’s explanation, a vision danced in my head of an employee “inadvertently” packing thousands of classified documents into many dozens of cardboard boxes for shipment out of a restricted area in full view of INR workers who never objected or questioned.
Keyser continued his explanation. “I transported the boxes home, . . . and I came to learn they were in the basement.” Of course private homes or basements don’t ordinarily qualify as a SCIF in any US government’s security rules. He had earlier explained that he and some of his office colleagues “very infrequently” brought classified material to his house from his office so that he could work on time-sensitive issues. However, Keyser acknowledged that this practice was contrary to department security regulations.
At this point, a member of the prosecution team interrupted Keyser.
“Your Honor,” Mr. Laufman, the AUSA, exclaimed, “the classified material was neatly arranged on shelves in the basement. Could you please have Mr. Keyser explain how he had come to understand there was classified material in his home?”
Judge Ellis asked Keyser to explain. Speaking directly to the judge and without glancing over his shoulder to his third wife, Margaret Lyons, who sat in the first row of the public gallery, Keyser said, “My wife told me.”
All the government agents in the courtroom dropped their jaws at his assertion. Not only
had the prosecutors not revealed in court that Margaret Lyons was a senior official at the Central Intelligence Agency, then on loan to John Negroponte, the director of National Intelligence; they had also attempted to downplay the fact. When FBI and DS special agents executed a search warrant on the Keyser residence, they discovered a number of CIA “top secret” materials intermingled with department documents. Now in federal court and under oath, Keyser was acknowledging that not only was his spouse in potential violation of internal CIA regulations for not returning the documents but that she may have knowingly participated in the federal violation of the unauthorized retention of classified information.
I recall looking over at Margaret Lyons, elegantly coiffed and conservatively dressed, seated between her daughter and an unidentified middle-aged gentleman as Keyser answered the judge’s questions. She betrayed no emotion as she stared directly ahead.
Keyser’s statement before Judge Ellis rolled on as he asserted that he had tarnished his professional reputation because he knew that Cheng was an intelligence officer and he had developed a personal relationship with the NSB agent that he hid from his wife and the department. When he concluded his statement, Judge Ellis asked him to be seated. As he rejoined his defense team at 12:05 p.m., he did not appear as jovial as he had been at the beginning of the hearing. Never once had he glanced over to acknowledge his wife or daughter who quietly and painfully watched the proceedings.
At 12:15 p.m., Judge Ellis accepted Keyser’s informed plea and for all practical purposes the case of the United States of America v. Donald Willis Keyser appeared to be over. But nothing could have been further from the truth.
State Department Counterintelligence: Leaks, Spies, and Lies Page 15