That Slam Dunk Prosecution of an Accused NSA Document Thief Just Took an Embarrassing Turn

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Sometimes my faith in the criminal justice system is zero. It seems that all too often judges are just another part of the prosecutorial machine. Just last week, the Night Circuit had to rule that a judge could not send a woman back to prison as parole violator after she’d been released for parole for an offense her parole officer alleged took place before she was convicted. Late last week a man was released after 10 years on death row when it was revealed that the prosecutor had in his possession evidence that established the convicted man’s alibi.

But, every once in a while, there is that occasional ray of sunshine that makes you believe the system is not corrupt down to its very roots.

A little more than a hear ago, a federal grand jury indicted a former civilian employee of the National Security Agency for a massive theft of documents.

Prosecutors say Martin also spent years taking documents from U.S. Cyber Command, the military’s digital war unit. Those documents contained information about the command’s strengths and weaknesses, as well as details on who the country’s cyber warriors were going after, according to the indictment.

The CIA was also a target. Martin allegedly stole a 2008 document with information about how the agency collected overseas intelligence.

The indictment was unclear about each document’s level of classification.

The theft may go well beyond what’s in the indictment. The Washington Post reported earlier this week that some U.S. officials said Martin allegedly made off with the code behind more than 75 percent of the hacking tools at the NSA’s Tailored Access Operations, the agency’s elite hacking unit.

Martin offered to plead guilty to one count of theft of documents but the government wanted to make an example of him. And so the case proceeded to trial.

By now it had been accepted by both sides that a) Martin didn’t let anyone have the documents and b) that he took the documents because he was not a top performer at work and intended to try to study them at home in order to keep his job. In fact, it turns out that Martin basically vacuumed up stuff and didn’t know that he had some highly classified documents in the terabytes of data he ran off with. That last point is critical.

Prosecutors and a defense attorney squared off here Tuesday over a thorny legal question that a federal judge declared unprecedented: whether a National Security Agency contractor can be convicted under the Espionage Act for taking home highly classified documents he may not have known he had.

There’s little doubt that Hal Martin, a computer specialist who worked with an elite NSA hacking unit, had a large volume of classified information at his Maryland home in 2016 when the FBI showed up with a search warrant.

However, during an unusual, nearly 90-minute-long hearing on Tuesday, U.S. District Court Judge Marvin Garbis repeatedly noted that Martin is not charged with having a massive trove of classified information at his home. Instead, he faces 20 felony Espionage Act charges that he unlawfully retained in his residence or vehicle specific documents that were designated secret and top secret.

“The parties seem to be overlooking a major difference of opinion as to what could be a critical issue in the case,” said Garbis, an appointee of President George H.W. Bush. “I’m surprised nobody has ever raised this issue. I’ve never actually seen it addressed.”

In order to convict him under the Espionage Act, the law says the government must prove that he knew he had classified documents. Without that proof, he’s guilty of theft…on a spectacular scale…but he can’t be convicted for mishandling secret information.

Defense attorney Debbie Boardman argued that, by reading out of the law any requirement to prove Martin knew he had the specific documents, prosecutors were seeking to raise mere theft to an Espionage Act violation punishable by up to 10 years in prison for each count.

Boardman said that under prosecutors’ interpretation of the law, if she went to a meeting at the NSA and stole a stack of notepads with the NSA logo on them, she could be liable for violating the Espionage Act if one pad had some sensitive notes or a stray document in it.

“I’d be guilty under the Espionage Act,” she said, suggesting that would be an absurd result.

All of this left the prosecution team flailing about:

During the hearing, prosecutors were vague about whether they believe they could prove their case if required to show Martin knew he had each of the charged documents.

At one point, prosecutor Harvey Eisenberg said Martin’s handwriting was on the document under discussion. However, the FBI case agent sitting at the prosecution table shook her head.

Eisenberg seemed to chafe at the possibility that prosecutors would be forced to prove Martin’s knowledge on a document-by-document basis.

“I have to go crawling into his mind to know telepathically what’s in his [thoughts?…] It has to have his fingerprints or his DNA? That can’t be the standard,” Eisenberg said.

Eisenberg did suggest at one point that prosecutors could argue that Martin might be guilty if he knew that there was a high risk the documents were classified and he removed them anyway.

“Willful blindness would also apply,” the prosecutor said.

I don’t like folks running off with classified information but we’re definitely in a “different spanks for different ranks” system. The government is trying to hammer the hell out of a guy that both sides agree has psychological issues for no greater reason than it was a high visibility case and seeing justice done rather than a scalp collected would offend what passes for manhood in the legal profession. By the way, I put the prosecution of Paul Manafort and all the Mueller guilty pleas in his same basket. In this particular case, the government can’t even prove the elements of the crime. And, on the other hand, we have Hillary Clinton and Huma Abedin who openly and notoriously abused their access to classified information and yet nothing happened.

Cases like this and like the Bundy case make me have some hope. Though damned little.