Bid to Move Military Spy Case to Civilian Court Fails

A military judge refused Monday to grant a motion made by attorneys for Michael H. Allen, charged with providing intelligence to the Philippine government, to change jurisdiction from the U.S. Navy to a civilian court.

Capt. Richard E. Reed, who is presiding over the court-martial, said Allen is still considered part of the military because he is a retired Navy radioman and had secret clearance and access--until he was arrested--to classified material sent through the Cubi Point Naval Air Station in the Philippines, where he worked.

Lt. Cmdr. Peter L. Fagan, the prosecutor, said last week that Allen can be tried by the government because he was receiving retirement money from the Navy and his status would have enabled the military to recall him during war or national emergency.

Cmdr. Steven Carroll, Allen’s defense attorney, argued that Allen was in no condition to return to any form of active duty if a national emergency did occur.

Claim Is a “Fantasy”

“That Michael Allen would have been active on a recall is a fantasy; he retired 15 years ago,” Carroll said during arguments on his motion last week. “The military has authority over its active troops but not over its retired troops.”

He also said that rarely would military personnel be subject to a court-martial whenever they violate Navy laws such as having “unauthorized haircuts.” “Why don’t we police the active military personnel who have retired?” he asked.

According to documents provided by the prosecutor, Congress gave the military the authority to prosecute any officer, retired or not, who is engaged in espionage.

Allen, 53, is charged with espionage, conspiracy to commit espionage, unauthorized removal of classified information and failure to register as a foreign agent. Two other charges involve alleged possession of stolen and unauthorized Navy identification cards, and additional counts allege that Allen did “wrongfully solicit” National Intelligence Service agent Stephen Smith to spy.

Allen allegedly copied and removed from the Cubi Point base confidential documents on U.S. intelligence activities in the Philippines and turned them over to the intelligence branch of the Philippine Constabulary while he was a civilian employee at the base.

The prosecution said last week that Naval Intelligence Service officers had videotaped Allen’s alleged misconduct in November after receiving the go-ahead from Secretary of the Navy John F. Lehman to launch a court-martial. Allen was arrested Dec. 4.

He has been held since December in maximum security at the 32nd Street Naval Station brig.

An additional motion to drop some charges is expected to be acted on sometime this week.