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In the heart of the U.S. Attorney’s Office in Alexandria, Va., stands the “wall of shame,” a gallery of mounted glossy photos of the spies the office has successfully prosecuted — from CIA counterspy Aldrich Ames and National Security Agency cryptographer David Boone to Pentagon attorney Theresa Squillacote. With the sensational arrest last week of alleged double agent Robert Hanssen, there soon could be a new picture on the wall. The government has drawn a chilling portrait of Hanssen’s alleged guilt. And the former Federal Bureau of Investigation counterespionage official could face the death penalty if a court finds that two U.S. agents were executed and critical nuclear defense secrets were betrayed as a result of his alleged 15-year tenure as a double agent for Russia. While the capture of a spy, especially a double agent, offers glimpses into a murky netherworld rarely seen by the public, it also spurs an intense form of criminal litigation unlike what most defense attorneys or prosecutors ever see — even those in the Eastern District of Virginia, which handles more than its share of these cases. “The principal thing the defense will do first is probe the methods by which the information was gathered,” says Lawrence Robbins, a partner in the Washington, D.C., office of Chicago’s Mayer, Brown & Platt who defended Theresa Squillacote against charges that she tried to spy for East Germany. Doing so, Robbins says, brings the defense attorney into a realm that can seem “Kafkaesque.” For starters, defense attorneys in espionage cases must go through a rigorous Justice Department security clearance before they can move on a case. Frank Dunham, an Alexandria attorney who has prosecuted and defended spy cases, says that in order to review documents and discuss matters with co-counsel for the defense, he had to work in a room that he likens to the “Cone of Silence” — the sound shield used by Maxwell Smart on television’s spy-spoof series “Get Smart.” In a well-appointed conference room deep in Main Justice, he was allowed to examine evidence and take notes, but could not take anything out of the room, even his notes. Hanssen’s attorney, Plato Cacheris, has been through this before. A former federal prosecutor in the Eastern District of Virginia, he defended counterspy Ames in 1994 in what was considered, until now, the country’s most serious espionage case. Although the defense has restricted access to government files, it won’t be difficult for Cacheris to meet with Hanssen, if past cases are any measure. The feds won’t reveal where Hanssen is being held. But in other Eastern District espionage cases, defendants have been held at an Alexandria detention facility where their attorneys could meet with them without special security constraints. The twists for prosecutors begin when they are brought into the investigation: much later than usual. In any other serious criminal investigation, the U.S. Attorney’s Office is on the job from the beginning. Not so with spy cases. Rather, the FBI conducts its own inquiry and works with a little-publicized division of the Department of Justice, the Office of Intelligence Policy and Review. Made up of 19 lawyers and headed by Frances Fragos Townsend, the OIPR functions as a sort of general counsel, overseeing intelligence and security policy. It is also the body that handles all Foreign Intelligence Security Act (FISA) matters, a task that includes representing the United States before the Foreign Intelligence Security Court. Sewn tightly into the sixth floor of the Justice Department building, the FISC is the secretive forum where a panel of seven district judges from around the country determine whether the government has probable cause to conduct electronic surveillance and physical searches on suspected foreign agents. Defense counsel may challenge the probable cause affidavit presented to the FISC, and the FISA statute provides that defense lawyers can see the affidavit in certain circumstances. But “in 23 years of the statute, no one has ever seen it,” says Robbins. So defense lawyers must use deductive reasoning and what clairvoyant powers they might possess to figure out what it is they’re challenging. “It’s shadowboxing,” Robbins adds. The OIPR and the FBI do the bulk of the primary investigative and legal work. Once it seems clear that a criminal case should be filed, the U.S. attorneys are brought into the fold. On the Hanssen case, Randy Bellows, senior litigation counsel in the Alexandria-based U.S. Attorney’s Office, is lead counsel. He is joined by chief Alexandria-based Assistant U.S. Attorney Justin Martin and Laura Ingersoll of the Internal Security Section of the DOJ’s Criminal Division. Bellows and Martin are espionage case veterans. Bellows went to trial against Squillacote and her husband Kurt Stand in 1998, and also prosecuted FBI counterintelligence agent Earl Pitts, who was convicted of spying for Moscow. Martin prosecuted State Department officials Ronald Humphrey and Truong Hung, who were convicted of smuggling cables to Vietnam in the last espionage trial before the 1978 enactment of FISA. Ingersoll is a former head of the DOJ’s Campaign Finance Task Force and is co-counsel in the pending case against alleged Australian spy Jean-Phillippe Wispelaere. GIVE AND TAKE Main Justice and the Alexandria U.S. Attorney’s Office work together constantly, but coordination between the two is “much closer than on less-sensitive criminal matters,” says U.S. Attorney for the Eastern District of Virginia Helen Fahey. And there is a fundamental dilemma involved in the prosecution of an alleged spy. While prosecutors want to use all available incriminating information, the revelations in spy cases inevitably involve information that intelligence agencies are loath to expose. “There’s always that tension between the agencies that wish to hold the information closely and prosecutors who need to prove their evidence in open court,” says Chuck Rosenberg, a former chief of the Major Crimes Division of the Eastern District’s U.S. Attorney’s Office. Defense teams are not privy to the back-room negotiations between prosecutors and intelligence officials, but the defense can use that basic tension to its client’s advantage. “The defense will say [to prosecutors], ‘We’ll go to trial and you have to lay out what you have and how you got it,’ ” Rosenberg says. In the prosecution of Joseph Fernandez, a former Central Intelligence Agency station chief in Costa Rica accused of involvement in the Iran-Contra scandal, then-Attorney General Richard Thornburgh found the evidence that Independent Counsel Lawrence Walsh and Eastern District U.S. Attorney Laurence Shtasel wanted to use so threatening to national security that the case against Fernandez was dropped. And what sets espionage trials apart from even the biggest drug kingpin prosecutions is that the defendant has “something the government wants desperately,” says Rosenberg, who is now of counsel in the McLean, Va., office of Hunton & Williams. That something is information: “What it is he has passed, what kinds of secrets he compromised, and what kind of spy craft he engaged in. The defense attorneys know this is a card they can play,” he says. That, along with the severe sentences hanging over defendants’ heads, is a major reason most spy cases do not make it to trial, says Dunham, who heads the Eastern District’s nascent public defender office and who prosecuted Humphrey and Truong alongside Justin Martin. While the evidence against the defendants in espionage cases tends to be overwhelming, Dunham says, “the government often is willing to make some concessions in sentencing.” It is only with full knowledge of the secrets a spy passed to a hostile party that the intelligence community can begin to repair its fences. “It’s not like a 7-11 robbery where you can take inventory,” Dunham says. The passage of the Classified Information Procedures Act of 1980 has limited the power of the defendant’s hand, however. Under the CIPA, the trial judge and the parties must go over all of the evidence the parties may want to use at trial in a sort of classified version of pretrial discovery. The government may veto certain defense evidence for national security reasons or accede to its use in redacted or reworded form. The CIPA process can take some interesting turns. In the Squillacote case, for example, Robbins took issue with the government’s desire to present evidence without revealing to the jury its provenance. Chief Judge Claude Hilton held a closed hearing, and the government presented witnesses to explain how the evidence was obtained. Hilton ruled that while the evidence was admissible, the defense would be allowed to attack in court the sources and methods that the government presumably wanted to protect. The Squillacote trial also included the unusual “silent witness rule,” in which written copies of evidence were distributed to the judge, the parties, witnesses, and the jury, but not read into the record. A witness may testify as to the veracity of the evidence, but may not discuss the evidence itself. TOP SECRET COUNTRY The jury pool in the Eastern District adds yet another wrinkle. Both the Pentagon and the CIA are within the district’s confines, which may hold the nation’s highest concentration of individuals with security clearance — although jurors in spy cases do not need security clearance. Where else would jurors in the venire be employees of the FBI and the CIA, as was the case with Squillacote? The 1986 trial of former Army intelligence specialist Richard Smith highlighted the potential cynicism of an Eastern District jury toward intelligence agencies. Smith was charged with identifying six U.S. moles to the Soviet Union. His defense was that his mission as a CIA agent was to provide innocuous material to the Soviets with the goal that they would then reveal their true interests, says William Cummings, one of Smith’s defense attorneys and a U.S. Attorney for the Eastern District of Virginia from 1975 to 1979. At some point during the operation, Smith maintained, the agency dropped him like an old toy and denied his employ, and the FBI brought him up for prosecution. In closing statements to the jury, then-AUSA Joseph Aronica said: “The idea that the CIA would have [Smith] working as a double agent and that another agency of the same government would bring him in here to prosecute is preposterous.” The jury acquitted Smith. Issues such as these will only come into play if Hanssen proceeds to trial, which strikes most observers as unlikely. While Cacheris urged Ames to go to trial, his client ultimately opted to plead guilty to spare his co-conspirator wife a harsh sentence. Last week, Cacheris said that “at this point, [Hanssen would plead] not guilty.” Cacheris later suggested that the case may not be as solid as it appears. Prosecutors, he said, “always talk like they have a great case, but we’ll see.” For many observers, the high chance that Hanssen will strike a plea is a disappointment. As one defense attorney put it: “I’d give my eyeteeth to see Randy and Justin and Plato go at it in the courtroom.” Dunham says that whether Hanssen opts for a trial in part “depends on how much the government needs to protect.” From the reports out thus far, he says, “it seems to me that the government has a source inside the Russian intelligence service, and it comes down to how much they need to protect that source or sources.”

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