State Department Counterintelligence: Leaks, Spies, and Lies

by Robert David Booth

  As expected, Keyser denied that he had violated the plea agreement. His principal argument, in a nutshell, was that he had declared from Day 1 that he was not engaged in espionage.

  By mid-December 2006, the government had thrown in the towel and abandoned its attempt to void its plea bargain agreement. The DS and FBI special agents were appalled. At this point in the legal odyssey, was the Department of Justice simply not prepared to risk a court trial in which Keyser would be charged with violations of the espionage laws and sensitive US government information might be disclosed in open court to prove that Keyser had actually passed honest-to-goodness classified data to the NSB? DOJ finally decided to let Keyser’s guilty plea to two counts of false statement and one count of unauthorized retention of classified material be the last word in this case. Judge Ellis selected a day in January for the sentencing.

  On January 22, 2007, I was once again in room 900 awaiting Judge Ellis’s appearance. On the right side of the courtroom were approximately fifteen active and retired Foreign Service officers who were present to offer their visible support for Keyser. Seated among Keyser’s State Department colleagues was his wife Margaret. Sprinkled among them were several members of the American and international press including representatives of the Taiwanese news agencies. On the right side, I sat with representatives of the DS and FBI counterintelligence sections.

  Litt had grown a goatee since his last court appearance and was wearing a dark gray pinstriped suit set off with a red and white tie. Keyser’s support group was dressed in a sea of dark colors, and Keyser wore a conservative gray suit and subdued tie. At 10:17 that morning, Judge Ellis strode into the courtroom as we all stood up, and then we promptly sat down while he began the day’s hearing. Judge Ellis set the tone for the morning’s session by advising everyone that he had read a “mountain of material and did not need it regurgitated orally” during the forthcoming proceeding.

  The next few hours were taken up by both sides reviewing the same federal Rule 11 soliloquy recited to Kendall and Gwendolyn Myers and how it might influence Judge Ellis’s sentencing. Following discussion of other matters, a lunch break was ordered. When the court reconvened at 1:05 p.m., Keyser was stone-faced and stared straight ahead as he walked into the courtroom holding his wife’s hand. If he recognized me, he made no effort to acknowledge my presence.

  It became clear that Judge Ellis was not accepting Keyser’s version of the events surrounding his clandestine relationship with Cheng. Nor did he seem to be swayed by Litt’s pitches for leniency.

  During Keyser’s oral statement to the judge, he said he had been “unforgivingly careless” and “took risks with a foreign intelligence agency’s employee.” He went on to remark, “I can’t imagine what I was thinking when meeting an attractive and interesting Ms. Cheng in 2002.” He acknowledged that he compounded his mistake by not reporting his relationship to the appropriate department authorities, and he apologized to “Your Honor for lying.”

  Judge Ellis was not persuaded by Keyser’s excuses. When Keyser told the judge, “I want to stress the fact that I was not an agent of the NSB,” Judge Ellis quickly interrupted and asked, “Were you duped?”

  Keyser answered “No, I was not.” The left side of the courtroom could not have disagreed more with Keyser’s statement.

  Following Judge Ellis’s questioning of Keyser, it was time for his lawyer to take up the cause. Speaking directly to the judge, Litt recommended a sentence of probation and characterized the case as “the classic Greek tragedy of a great man brought down by his tragic flaws.”

  Litt claimed that Keyser’s judgment was clouded by an emotional attraction to a younger woman. He tried to pull the court’s heartstrings, in hopes of avoiding jail time for his client, by noting that Keyser had a high school-aged daughter and that he was married.

  Judge Ellis interrupted Litt’s speech. “Many, many criminals have school-age daughters and spouses,” he said, further noting that Litt might find “more traction” if he tried another approach.

  Litt veered off-point once again, claiming that the information that Keyser provided to Cheng was “generally useless stuff,” but he was simply not finding traction with Judge Ellis. He was similarly unsuccessful in persuading Judge Ellis to be lenient with Keyser by sentencing him to probation, time served, or home detention.

  At 4:40 p.m., Judge Ellis asked the court if there was any reason why he shouldn’t pronounce sentence. Without objection, he continued and announced that Keyser was “guilty of three serious criminal offenses” and that as far as he was concerned the case was “a big deal.” He then commented that he had received a letter of support for Keyser signed by Sharon Papp, the American Foreign Service Association’s (AFSA) senior legal counsel, in which she attempted to minimize Keyser’s actions and blamed overzealous DS investigators for his legal dilemma. A number of DS special agents were insulted by the tenor of the letter. (AFSA was and is the union for many Foreign Service employees.) AFSA’s appeal proved to be unpersuasive to the court.

  Former ambassador and supreme Black Dragon J. Stapleton Roy, who had resigned in protest for Keyser’s punishment in the missing INR laptop incident, submitted a letter to the court pleading that Keyser be spared jail time as did ambassadors William Itoh, Jeffery Bader, Winston Lord, and Philip de Heer, secretary general of the Netherlands Ministry of Foreign Affairs.

  Judge Ellis continued, stating that Keyser’s suggestion that his backdoor relationship with Cheng was a venue by which to promote America’s foreign policy objectives was not, in his opinion, “the way to advance foreign policy.” In the end, the judge sentenced Keyser to one year and one day in the federal penitentiary system.

  In October 2007, Cheng ended her silence in this affair when she was interviewed in Taiwan, where she was pursuing a doctoral degree and seeking government funding to study abroad. Tearfully she told the China Times she was seeking “a second life” and that Keyser was “a very patriotic person and he is even stripped of his pension.” (Contrary to Ms. Cheng’s statement, Keyser did not lose his pension.) However, she declined to answer any questions about the relationship with her former confidant, citing her confidentiality agreement with the NSB. As a result of her educational petition to the Taiwan government, Cheng was provided funds to continue her studies in England, where she obtained a PhD from the School of Oriental and African Studies at the University of London. She currently serves as a lecturer in East Asian studies at the University of Portsmouth. Reportedly she has “retired” from the NSB and is enjoying her married life with Chris Cockle.

  In 2005, Taipei proposed to the Israeli government that General Huang assume the position of director at the Taipei Economic and Cultural Office in Tel Aviv. Located on the twenty-first floor of the Round Building, it serves in a similar quasi-diplomatic capacity to the TECRO office in Washington, DC. Diplomatic protocol mandates that a sending country must discreetly propose a candidate for an ambassadorial appointment (or equivalent in this instance) to the receiving country for approval. In General Huang’s case, Tel Aviv demurred. Maybe it was done in deference to the United States, or perhaps Israel did not want yet another spy operating under diplomatic cover in Tel Aviv and working the same small number of foreign diplomats as its Mossad officers. A similar request by Taipei to the Australian government for a diplomatic posting for General Huang was also declined. It appears that General Huang was considered unsellable, damaged goods in Taiwan’s tiny and ever-shrinking overseas diplomatic representation community. He was rewarded with a senior position in NSB headquarters.

  Robert S. Litt remained a partner at Arnold & Porter until appointed to President Obama’s team at the Justice Department, where one of his duties included monitoring Foreign Intelligence Surveillance Act applications. In 2009, he was appointed as the general counsel of the Office of the Director of National Intelligence.

  SA Kevin Warrener was awarded the State Department’s highest medal for valor—the Award for Heroism—in Dece
mber 2012 for his “decisive leadership, unwavering commitment, concern for his colleagues, and bravery during the September 14, 2012, attack on US Embassy Tunis and the subsequent repair and rebuilding.”

  In March 2014, Benjamin Pierce Bishop, a fifty-nine-year-old civilian contractor for the US Pacific Command in Hawaii, pleaded guilty to one count of transmitting national defense information to a twenty-seven-year-old female Chinese national residing in the US on a student visa. They initially met during a public conference. One year earlier, according to a March 18, 2013 District of Hawaii US Attorney’s Office press release, although Bishop had received numerous counterintelligence briefings, he had transmitted classified information concerning nuclear weapons, missile defense, and war plans to her via e-mail. He lied on his official government forms about traveling to London with her on a vacation. Bishop’s lawyer, Birney Bervar, characterized their relationship as “two who were in love,” not espionage.

  Keyser served one year and one day of federal incarceration and was released in January 2008. He underwent three years of supervised release. Shortly after leaving prison, he provided presentations at the Shorenstein Asia-Pacific Research Center at Stanford University. His listed research interests, among others, are US policy toward China and “Cross-strait,” otherwise known as China–Taiwan, relations. I was told that Keyser’s third wife served him with divorce papers the day he entered prison.

  On December 10, 2013, the China Policy Institute blog (University of Nottingham, U.K.) listed the following contributors, among others: Isabelle Cheng (Portsmouth University) and Don Keyser (retired US State Department).

  Part 3

  Leaks and Losses

  Secrecy is the first essential in affairs of State.

  —CARDINAL DE RICHELIEU

  It is much to be wished that our printers were more discreet in many of their own publications.

  —GENERAL GEORGE WASHINGTON

  I was amazed—and Moscow was very appreciative—at how many times I found very sensitive information in American newspapers. In my view, Americans tend to care more about scooping their competition than about national security, which made my job easier.

  —GRU COLONEL STANISLAV LUNEV

  Chapter Nine

  On May 27, 2010, Bradley Manning, a young US Army private assigned as an intelligence analyst to a top-secret communications center in Iraq, was arrested by army investigators and charged with the unauthorized transmission of classified US government information to the WikiLeaks website. Included among the purloined documents were over 250,000 State Department cables dating from December 1966 to February 2010.

  Ten months after Manning’s arrest, Carlos Pascual, the US ambassador to Mexico, was forced to depart Mexico City after WikiLeaks revealed several classified diplomatic cables sent from the American embassy that were critical of Mexican president Felipe Calderon and his government’s war on drugs. When asked by the US press if the leaked cables harmed US–Mexican relations, President Calderon replied that they caused “severe damage.”

  One month following Ambassador Pascual’s resignation, Ecuadorian Foreign Minister Ricardo Patino advised US Ambassador Heather Hodges that President Rafael Correa had demanded her permanent expulsion following the WikiLeaks publication of a 2009 classified diplomatic cable critical of a senior Ecuadorian police official.

  Some suggest that the State Department cables leaked by Private Manning influenced events surrounding the beginning of the Middle East’s “Arab Spring.”

  Leaked cables do matter.

  When in 2013 Edward Snowden provided Guardian columnist Glen Greenwald with thousands of pages of information concerning the NSA’s domestic and foreign surveillance programs, he revealed, among many other technical US government collection efforts, that the NSA was eavesdropping on the private cell phone conversations of German chancellor Angela Merkel and Brazilian President Dilma Rouseff, both of whom expressed outrage about these activities. Within months, President Rouseff cancelled a state visit to the United States.

  Chancellor Merkel’s tepid support for President Obama’s foreign policy efforts following the Snowden disclosures, especially with respect to President Putin’s annexation of the Crimea in March 2014, may well have been influenced by the Guardian articles.

  In July 2013, French President François Hollande exclaimed, “We cannot accept this kind of behavior between partners and allies. We ask that this immediately stop.” Leaks that have sovereign heads of state angry at the United States are serious indeed. To date, no State Department secrets have been compromised by Edward Snowden. Yet our diplomatic relations with allies have been severely damaged.

  In April 2014 the Guardian and the Washington Post were awarded the 2014 Pulitzer Prize for Public Service for publishing US government secrets. Unauthorized disclosures of classified information to the press have serious consequences. From my first days as an investigator, I was assigned the undesirable task of identifying State Department leakers, and during my twenty-eight-plus-year career in DS, I investigated a number of cases where secrets had been leaked to the press or lost on planes, trains, and automobiles.

  A little historical background is necessary to understand just how common unauthorized disclosures are and the national security ramifications they entail. Leaking of sensitive information by State Department employees to foreign diplomats and domestic journalists is not a recent phenomenon. In practice, the press always reads gentlemen’s mail every chance it gets.

  The origins of the United States Department of State are found in an act of Congress that created the “Department of Foreign Affairs” on January 10, 1781. In July 1789, President George Washington signed legislation that created “the secretary to the Department of Foreign Affairs.” These titles were changed in September to the Department of State with a secretary of state at its head. Shortly thereafter President Washington would have to deal with a secretary of state who was unable to keep sensitive information confidential.

  Former attorney general Edmund Randolph replaced our nation’s first secretary of state, Thomas Jefferson, when he resigned in 1793. In August 1795, Secretary Randolph was summoned to President Washington’s residence without explanation. Standing before the president and several members of his cabinet, Secretary Randolph was handed a paper that he was instructed to read and explain. Apparently members of the British navy who boarded a vessel sailing to Europe intercepted a dispatch sent from Joseph Fauchet, the French minister assigned to the United States, to his superiors at the French Foreign Ministry in Paris. In it, the French diplomat analyzed private discussions between Washington and his cabinet in which Washington arguably was expressing an anti-French tilt. The French dispatch cited Secretary Randolph as the “source” of the French minister’s analysis of the so-called “privileged” information. President Washington invited Oliver Wolcott, the new treasury secretary, and Secretary of War Timothy Pickering to interrogate the secretary of state about his indiscretions. Ultimately Randolph submitted his resignation, which Washington accepted.

  Secrets are created every day in Washington, DC, by the federal government—when personnel at the National Security Agency create codes, when CIA case officers talk to their foreign agents, when FBI agents debrief their sources, when the Joint Chiefs of Staff discuss troop movements. When these secrets are revealed to the press, they become media or news leaks. While the correct technical term is “unauthorized disclosure,” the terms are often used interchangeably. But not all leaks are created equal. Just as the motives for leaking differ, so do their intended and unintended consequences.

  The first kind of leak is the approved or authorized leak. Truthfully most news leaks are orchestrated by the White House and its administration using an anonymous, ubiquitous “senior government official” to communicate specific policy views without having to go publicly on the record. Leaking is a method for advancing the US government’s political agendas and positions without attribution and blowback on the administration and its
officials. Leaks serve to air potentially contentious policy issues beforehand in order to gauge reactions in the US and abroad. It’s simply a matter of discreetly floating trial balloons and testing political waters.

  The second category of leaks is the unapproved or unauthorized disclosure of government information. These leaks occur when a government employee, without prior supervisory or administrative approval, releases information to the press or other unauthorized recipients. These disclosures are investigated by federal agents of the US government. The least damaging are those involving sensitive, but unclassified, information that is administratively controlled against unauthorized release for a variety of legitimate reasons dealing with the internal workings of the applicable department. This category of information is usually marked as “For Official Use Only” by many executive branch agencies, but in the case of the State Department, up until the mid-2000s the data was stamped “Limited Official Use.” It is now marked as “Sensitive But Unclassified.” The nature of the information does not meet the criteria to be classified as national security information and, while sometimes embarrassing or unsettling to government officials, does not jeopardize our national security interests. Although these types of leaks are treated as an administrative inquiry rather than a criminal investigation, they are not without consequence—the leakers are subject to disciplinary actions as specified by department regulation.

  The really damaging leaks involve the release of truly classified government information to unauthorized recipients, most often the press. When the unauthorized recipient of classified information is a clandestine foreign intelligence officer, the “leak” is called espionage. At the outset, these leaks are typically treated as potential criminal violations and investigated accordingly. For reasons of administrative or political expediency and the difficulty of prosecuting such cases, they rarely end up in a court of law. Instead the leaker, if identified, typically receives department disciplinary action, up to and including dismissal.