A Navy sailor charged with sharing classified information to Taiwan and China—allegations that carry a potential life sentence in prison—could still avoid a full military trial and end up with a shorter sentence, defense officials told The Daily Beast.
It will all depend on who fears the prospect of a trial more—the military lawyers who have to navigate painstaking administrative procedures in order to admit the very classified information that Navy Lt. Cmdr Edward Lin allegedly shared. Or Lin, himself, who faces such serious charges that he likely could only avoid a lesser sentence by cutting a guilty plea deal.
The legal complexities of charging Lin have some Pentagon officials already suggesting that he could avoid a trial of his peers.
“I wouldn’t be surprised if this ends in a plea,” one defense official said, speaking on condition of anonymity to discuss the case.
Military lawyers would have to get permission to introduce classified information from any agency or department whose secrets might be aired in a public trial. Lin, 39, worked in and around military reconnaissance aircraft and had extraordinary access to information about equipment that the U.S. uses to spy on its adversaries. At a minimum, lawyers would have to get permission from the Navy, and potentially any intelligence agencies that developed or also use the equipment found on the aircraft, experts said.
“You have a number of other people in the decision-making process whose priorities are not aligned with criminal prosecution,” Michel Paradis, a military law expert and fellow at the Center on National Security, told The Daily Beast.
“From the intelligence perspective, in the trial process more information is getting put into the hands of those who don’t need it. It’s almost seen as a leak,” Paradis said, noting that he was not familiar with the particular details of Lin’s case.
Lin would also have the opportunity to defend himself by potentially introducing other classified information, a defense strategy known as “gray mail.” His lawyers would also have to get permission from relevant agencies to introduce any classified information.
Lin stands accused of providing military secrets to Taiwan, his birth country—possibly in exchange for sexual favors, defense officials told The Daily Beast. He faces two charges of espionage and three of attempted espionage.
The military can close the trial proceedings from public view. But that involves a cumbersome administrative process, so much so that it’s an incentive for some military lawyers to reach a plea deal and avoid the problem altogether, military legal experts said.
Lawyers for the prosecution and the defense must also have the appropriate security clearance to view classified information. The traditional process of discovery, in which the defense gets to examine the evidence the prosecution plans to introduce, slows down as lawyers muddle through the classification process. A mistake in the presentation of classified information could affect the case’s outcome.
“It’s an administrative nightmare,” Philip D. Cave, legal adviser in military cases, told The Daily Beast.
In some instances where the charges are as serious as those against Lin, the military hands the case to federal district courts. It wasn’t clear yet whether military officials were contemplating such a move.
Perhaps the best known person to face charges close to the allegations against Lin under U.S. military law was Pvt. Chelsea Manning, who was charged with violating the Espionage Act after disclosing military and diplomatic information to Wikileaks. Manning was convicted and sentenced to 35 years in prison. Only a few active-duty service members have ever been charged with espionage in the past three decades.
That lack of experience of charging service members with crimes that carry a life sentence also complicates the U.S. military effort to conduct a court martial.
“There are cases when government has prosecuted espionage cases. It’s difficult. Frankly, it is something that happens so infrequently that it is something the military has little experience with especially compared with the justice department,” one legal expert with extensive court-martial experience, who asked to speak anonymity when discussing Lin’s case, explained to The Daily Beast.
Other aspects of Lin’s case indicate that he may avoid a trial. He was held in pretrial confinement for eight months before the military announced charges this month. That could be a sign that lawyers on both sides were taking time to negotiate. Lin is represented by counsel, defense officials said, but neither the military nor Lin’s family have disclosed his lawyer’s name.
Lin’s long confinement is “a little unusual because the military is normally very conscientious about making sure the trial process moves quickly,” Paradis said. “Service members have very clear rights under the Uniform Code of Military Justice to have any criminal accusation dealt with promptly.”
On Wednesday, defense officials said military lawyers submitted a preliminary report to the convening authority for Lin’s case, in this case, U.S. Fleet Forces commander Adm. Philip S. Davidson, who will make the ultimate decision on whether to proceed to a court-martial. That report was supposed to be delivered last Friday, and the delay suggests that negotiations for a deal or some charge besides espionage may be underway, military law experts said.
Simply put, both sides have an incentive to walk into a military court with a worked out plea agreement and to avoid a lengthy, potentially revealing trial, Cave said.