Before the court would pronounce sentence, Keyser would have to tell all and cooperate with the DOJ investigation. Many FBI and DS special agents involved in the two-year investigation were displeased with the terms of the plea agreement but were powerless to influence the outcome. They were convinced that Keyser was guilty of passing classified material to a foreign intelligence agency—espionage. By agreeing to cooperate with a damage assessment team and discussing in detail his two-year association with an admitted NSB intelligence officer, he avoided being charged with espionage. So the Keyser legal defense team and the Justice Department hammered out an acceptable exit strategy to end a two-year legal conundrum. I do not think that either Keyser or the federal investigators were happy with their respective lawyers’ agreement.
The primary question that DOJ and State wanted answered concerned the identity or content of the documents that Keyser had disclosed. The government was willing to forego more serious charges against Keyser as long as he cooperated in reconstructing specific information he had provided to Huang, Cheng, or others so the intelligence community could evaluate the damages to US security. Fortunately for DOJ, Cheng had been persuaded by the FBI to turn over the originals of her reports on Keyser along with his observations and critiques following her detention outside the Alexandria, Virginia restaurant.
Other questions arose as well. Did Cheng provide the FBI with authentic classified TECRO cables, and could their introduction in court damage Keyser’s claims of innocence? Many of Keyser’s defenders questioned the TECRO cables’ authenticity; however, that question was answered in August 2006 when the government of Taiwan overplayed its hand and hired American attorney Thomas Corcoran Jr., of Berliner, Corcoran and Rowe, LLP, to file an emergency motion (TECRO Memo of Support to Minimize any Potential Adverse Impact Interest on US or Keyser) with the US District Court for the District of Columbia. The motion (Case 1: 06MS00369) attempted to compel the United States government to return the TECRO documents that Cheng had turned over to the FBI. Moreover, in a separate written motion to the court, the Taiwan government requested the motion itself be sealed and kept secret from the American and Taiwanese public. This appeared to be at variance with an official statement from the Ministry of Foreign Affairs in early September 2004 that declared Taiwan had nothing to hide and would fully cooperate with US authorities.
The federal prosecutors responded to the motion by filing a reply indicating that Cheng “voluntarily retrieved” the TECRO cables from her office before turning them over to the FBI. On August 11, 2006, Federal Judge Paul Friedman not only quashed the TECRO-initiated motion during a five-minute court hearing but also ruled that the request itself would now be part of the public record. One can safely assume that Judge Friedman could see nothing but legal mischief in belatedly assuming jurisdiction over one component of the Keyser case that had already been adjudicated in a Virginia federal court. More importantly, he could see no legal merit in sealing the motion itself. Taipei’s attempt to complicate matters in the federal prosecution of Keyser for mishandling classified information had been thwarted thanks to Judge Friedman. Was this how the Taiwanese government intended to cooperate? Did its end-run reveal Keyser’s culpability in the unauthorized transmittal of classified US information to a foreign power? On September 20, 2006, the TECRO case was consolidated in the Virginia court with the Keyser case. TECRO renewed its motion in this court, and Keyser filed a similar motion. Both motions were terminated without hearing in January 2007 upon the final disposition of the case.
The Taipei government was in all likelihood anxious to recover a TECRO secret electronic telegram forwarded to Taipei on November 25, 2003, in which Cheng states, “Donald Keyser, the Principle Deputy Assistant Secretary of State for East Asia Affairs of the US, continued to explain the recent diplomatic behavior of the PRC.” Neither the November 25 cable nor secret TECRO cable dated May 22, 2004, in which Cheng reported that Keyser provided “an in-depth exchange of opinions regarding trilateral relations between the US, China, and Taiwan,” would help Keyser’s claim that he didn’t pass sensitive information to the Taiwanese.
While the IC was concerned with the nature of the information passed to the NSB, the question the investigators most wanted answered was the one Keyser did not know: was Cheng’s presence at the private dinner party in September 2002 contrived or not? Did General Huang bring Cheng to Mann’s house to dangle her before Keyser in hopes they would begin some form of relationship?
To the investigators, it was obvious that Taiwan already had Keyser as a source through General Huang. They were already professionally acquainted and could contact each other at will, and, importantly, no department regulations prohibited such an association. Why would the Taiwanese government bother to have two intelligence officers working the same source? While wholly speculative, many of us believed that Cheng might be a more appealing confidant than General Huang. Perhaps the NSB knew something of Keyser’s personal history. If so, that may have led the agency to conclude that an intelligent, young, and attractive woman who shared Keyser’s interest in Sino–US relations would be more successful in eliciting useful information from Keyser. As Keyser himself said in court in December 2005, “However, I understand that my personal relationship with her [Cheng] might have made me vulnerable to attempted exploitation or pressure.”
One additional piece of the investigative puzzle stuck in the craw of the investigating team. To combat any potential espionage charges, Keyser was arguing that he did not know he was supposed to report contacts with suspected foreign intelligence officers. Shortly after Keyser’s arrest, SAs Warrener and Cavalier were instructed to proceed to the EAP’s Human Resources office to obtain Keyser’s personnel file, which would have contained signed forms acknowledging his contact reporting requirements. To the amazement of the two agents, Keyser’s folder had mysteriously disappeared from the Human Resources files. In its place was a file that contained a few sheets of paper less than two weeks old. Sad to admit, but the “misplaced” file might have contained documents supporting Keyser’s assertions.
Despite interviewing a significant number of Human Resources employees responsible for maintaining the office’s records, the file was never located.
SA Cavalier was told that she would be a member of the first team to debrief Keyser, scheduled for January 18, 2006. As a relatively young member of DS, she was extremely nervous. She had studied the man for almost a year, and she had also studied Cheng. She tried to put herself in their heads.
When I talked to SA Cavalier about the interview and how she prepared herself for the encounter, she had an interesting observation.
“It all came to attraction and ego for Don,” she said. “Physical attraction and his oversized opinion of himself.”
“And how does Isabelle fit in?” I asked.
“Cheng played the role of the curious schoolgirl to perfection,” Cavalier explained. “Her attempts to obtain information were often disguised as pure curiosity—the bright and inquisitive yet naïve and slightly inexperienced schoolgirl looking to her mentor to impart his vast knowledge upon her. Not only did she stroke his ego in a way that was incredibly appealing to him, but he had such an ego that it allowed him to feel that the relationship was not subject to any security rules.” To SA Cavalier, it was clear that he thought he knew better than any of the DS agents regarding what the rules should be and which applied to him.
One of the obstacles that the debriefing team had to overcome was Keyser’s claim that Cheng was a benign entity and that his meetings with her constituted a diplomat fulfilling his EAP duties. Some of the main issues at play here included whether, at his level, he would have been meeting with a relatively junior diplomat as well as whether any meetings he had with diplomats would have been “give and take”—i.e., he would have both provided information and received valuable information to report back to the department. Keyser did not submit one single report of his meetings with Cheng, General Huang, or MSS clande
stine agent/journalist Li Zhebgxin for that matter. In Keyser’s office calendar, he had disguised his meetings with Cheng and General Huang by using code names—something he never did for any other meeting with foreign diplomats in America.
The investigators needed to prove that Keyser was aware Cheng was in fact a hostile intelligence officer, and SA Cavalier was up to the task. She made the risky decision to emulate Cheng in the debriefing. She studied Cheng’s style, the way she dressed (videos and stills), and how she conversed with Keyser (FBI recordings). Cheng was conservative, not overtly sexual. She came across both as an intelligent woman and a bright-eyed schoolgirl in awe of Keyser’s genius. She wore styles that were respectable while remaining young and feminine.
When the interview day came, SA Cavalier wore a button-down shirt and a skirt. She wore her hair exactly as Cheng did, long and neatly combed with a side part. She looked like someone that a seasoned diplomat might want to impress; now she had to figure out how to press the right buttons.
When SA Cavalier walked into the debriefing room on January 18, 2006, people lined the walls—representatives from the Department of Justice, National Counterintelligence Executive, DS, the FBI, and individuals from those IC agencies that had an interest in the case. A rectangular table occupied the center of the room. SA Cavalier was teamed up with an FBI agent who told her that she could go first and ask the DS questions before the FBI would ask theirs.
The DS questions were simple enough: did Keyser treat Cheng as an intelligence officer, did he take his laptop to Taiwan, and how did the three thousand-plus classified documents end up in the basement of his home? SA Cavalier and her FBI counterpart sat on one side of the table, and Keyser and his lawyer, Jeffrey Smith, sat on the other.
SA Cavalier started the interview by introducing herself and complimenting him on his career with the department. She told him that everyone with whom she had spoken about this case had nothing but wonderful things to say about him. Keyser’s demeanor changed and his posture became more relaxed. He might have even puffed up a bit, sitting up a touch straighter in his chair. The door was open.
SA Cavalier told Keyser that she had some questions for him and apologized for taking up his time. He said that was what he was there for. She asked him to tell her about his job, and he did. She asked him what Cheng did for TECRO, and he commented that she was a political officer.
Leaning forward ever so slightly, just as she had witnessed Cheng do on several occasions while Cheng and Keyser shared lunch, she said that she was a bit confused about the difference between a diplomatic political officer and a covert intelligence officer assigned to a diplomatic mission. She expanded by adding that, as a mere DS agent who had never served overseas, she did not understand the broader context of these roles for our State Department and for the various Ministries of Foreign Affairs. Concluding the broad question, SA Cavalier asked Keyser to explain the day to day functions of a political officer.
In great detail, Keyser explained the role of a diplomatic political officer—having served as one himself, that was easy. She then asked him to describe what an intelligence officer does. With skilled prose he defined the intelligence collection and reporting process. Just as easily, SA Cavalier asked him to describe Cheng’s duties at TECRO and whether they were more in line with the duties of an intelligence officer.
At this point, Keyser became visibly upset when he realized that he had been trapped by his own clear explanation of the two very different functions. Keyser said, “Yes,” that Cheng did perform the duties of an intelligence officer and he was aware of her (NSB) position.
SA Cavalier would have liked to keep up the act longer as the eager, confused girl in awe of Keyser, but he was on to her at that point. When asked why he never reported the relationship with Cheng, Keyser replied that it was because of embarrassment. Asked why he met one-on-one with her, he responded it was because he was enjoying her company. Finally he was asked what Cheng told him her position was at the NSB, and he replied that she said, “Assistant to [General] Huang.”
Keyser did not like the questioning at all. He shot a glance over to his lawyer, leaned back in the chair, crossed his arms, and returned his stare to SA Cavalier as if there was no one else in the room.
Keyser was asked if he was aware of the Asian intelligence practice of throwing attractive young women at older men. He said he was. When asked why he did not think she would be recruiting him, Keyser said that it was because he was sixty years old, because they knew he was going to be retiring, and because since 1964 Taiwan had not attempted to engage US diplomats in clandestine relationships. Keyser said that he had been embarrassed to talk about his relationship with Cheng to the department because he thought it would be seen as a personal relationship.
Keyser said that he did not think the Taiwanese were attempting to recruit him. He denied having physical intimacies with Cheng. (The FBI had videos of their car encounters.) He said he did not require department approval to travel to Taiwan. (The FBI had his e-mails to Cheng and others regarding his travel restrictions.) He added that he used “bad judgment” when he did not tell his colleagues about his clandestine trip to Taiwan but it was not a “lie.” He said he was unaware of IC regulations (known as DCIDs) mandating that he report contact of any kind with a foreign intelligence officer. (DS had obtained several acknowledgement forms he signed that specifically outlined his reporting requirements when having any kind of relationship with a known foreign intelligence officer.) He blamed an unidentified “temporary secretary” in the department for inadvertently packing up the thousands of classified documents from his last office and sending them to his home. The remaining answers to her questions concerning the laptop and basement documents were answered with “Yes,” “No,” or, most frequently, “I don’t recall/don’t remember.”
SA Cavalier had one final question for Keyser.
“Mr. Keyser,” she asked, “when you were in Taiwan, where did you leave your laptop [containing classified information] when you left the hotel to sight-see with Cheng?”
“I locked it up in my suitcase.”
According to SA Cavalier, the resulting gasps of the counterintelligence audience caused a good deal of the oxygen to escape the interview room. The NSB technical team must have had a field day.
At the end of the interview, and after Keyser and his lawyer left the room, everyone chimed in and judged Keyser to be significantly deceptive on all the substantive questions. Over the course of several interviews, he never wavered from his positions.
After four debriefings (January 18, January 27, February 21, and March 28) and two polygraph examinations (February 14 and April 5), DOJ concluded that Keyser had failed to cooperate with the investigation as promised on December 12, 2005, and was prepared to jumpstart the prosecution. On June 29, 2006, the government filed a motion to find Keyser in material breach of its plea agreement and to release the government from its obligations under the plea agreement. According to the government’s July 5 memorandum in support of the motion,
. . . the defendant [Mr. Keyser] failed to fulfill his cooperation obligations under the Plea Agreement. Instead of volunteering information about matters that he knows are of interest to the government, he has addressed issues of importance only when directly asked. Even then, his answers frequently have been evasive and incredible. Throughout his debriefings, the defendant has sought to conceal the facts regarding his relationship with Taiwanese intelligence officer Isabelle Cheng, his activities while in Taiwan in September 2003, and his knowledge of the classified materials at his house. On several occasions, moreover, he has acquiesced to the truth (and sometimes incompletely) only after being confronted with incontrovertible forensic evidence by the interviewing agents. The defendant’s lack of cooperation has been particularly egregious with respect to the nature of his relationship with Cheng and Taiwan’s National Security Bureau, the stockpile of classified material found throughout the defendant’s residence, and his taking a l
aptop computer and classified material to China, Japan, and Taiwan in 2003.
DOJ was thoroughly frustrated and wanted out of the plea agreement and went back to court in an attempt to dissolve it. That would allow the government attorneys to pursue Keyser’s possible violations of other federal statutes. On July 21, 2006, the Justice attorneys appeared before Judge Ellis in room 900 at the Alexandria federal courthouse and formally requested the court to dissolve the previous December 12, 2005, plea agreement so the government could bring additional charges against Keyser. The DOJ lawyers maintained that Keyser had not been cooperative during the court-mandated debriefing sessions with the FBI and that his polygraph examinations indicated deception when he was asked if he had passed classified information to a foreign intelligence service. Courtroom spectators numbered less than half of those at the previous hearing. Besides the author, the individuals in the room that day were a correspondent for the China Times, one representative from the FBI, and an unknown middle-aged gentleman in the back row.
Judge Ellis quickly entertained the government’s petition but reminded the federal lawyers that should they proceed with a criminal case, classified information could be cited as evidence. Therefore the legal rules governing such circumstances as outlined in the cumbersome Classified Information Procedures Act would make prosecution difficult in the District Court for the Eastern District of Virginia. There were smiles all around at the defense table. Then Judge Ellis, known for his no nonsense courtroom demeanor, made it clear that he wouldn’t tolerate any “judge shopping” on the part of Keyser’s defense team should the case go forward. There were smiles all around at the prosecutor’s table. Judge Ellis ruled on a number of substantive legal issues and set August 25 for a status conference. As quickly as the proceedings started, Judge Ellis concluded the day’s hearing.
As I walked out of the courtroom, I was pleased that the US government was now going to have its day in court and a jury could rule on Keyser’s assertions of innocence. Once again, I couldn’t have been more wrong!
State Department Counterintelligence: Leaks, Spies, and Lies Page 16