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For Brian Patrick Regan, the timing couldn’t be much worse. As the United States marshals its forces for a seemingly inevitable invasion of Iraq, Regan is scheduled to go on trial this week in U.S. District Court for the Eastern District of Virginia for allegedly offering to sell U.S. military secrets to Iraqi President Saddam Hussein. If convicted, Regan could become the first accused spy to face the death penalty since the 1953 execution of Ethel and Julius Rosenberg. Regan’s case highlights a paradox of spy prosecutions: The more harm a spy causes, the more bargaining power he has when he gets caught. And Regan has very little bargaining power. He was arrested at Dulles International Airport on Aug. 23, 2001, as he boarded a flight to Zurich. In his wallet were coded notations on classified satellite images, and the addresses of the Chinese embassies in Switzerland and Austria, the Iraqi Embassy in Austria, and the Iraqi Interest Section in Paris. These addresses were also hidden in the sole of his right shoe. At home, Regan, then 38, had a wife and four school-age children, as well as $50,000 worth of debt. The indictment alleges that Regan tried in vain to sell highly classified information not only to Iraq but also to Libya and the People’s Republic of China, in exchange for millions of dollars. Regan has pleaded not guilty to three counts of attempted espionage and one count of mishandling classified documents. Until that August day, Regan had worked in the secretive environment of military intelligence for more than a decade. In 1980, he enlisted in the Air Force and, in 1991, was assigned to the Air Force Intelligence Support Group at the Pentagon. In 1995, he was detailed to the National Reconnaissance Office in Chantilly, Va., where he specialized in signals intelligence analysis and carried security clearances to handle top-secret materials, and the even more highly classified data categorized as “sensitive compartmentalized information.” After retiring from the military in 2000, he continued at the NRO as a private contractor. The indictment alleges that Regan’s spying activities began no later than January 1999. U.S. District Judge Gerald Bruce Lee of the Eastern District of Virginia recently rejected a bid by Regan’s defense team to delay the trial. His attorneys argued that a possible invasion of Iraq is poisoning the jury pool. Another unusual aspect of Regan’s case is that he never succeeded in passing along classified information to foreign governments, as far as court papers publicly reveal. But that doesn’t make the case any less dangerous for him. Indeed, the government is seeking to execute Regan. “Even if [Regan] was able to complete any of the acts that were alleged, the death penalty is completely disproportionate,” says Regan’s lead defense attorney, Nina Ginsberg, a veteran of espionage cases and a partner in Alexandria, Va.’s DiMuro, Ginsberg & Mook. Compared with the activities of such convicted spies as former Central Intelligence Agency officer Harold Nicholson and former Federal Bureau of Investigation agent Robert Hanssen, who wreaked havoc on U.S. intelligence during their decades of service to Moscow, Regan’s alleged efforts to sell his services to Saddam Hussein and Libyan leader Moammar Gadhafi seem clumsy attempts torn from the pages of an overheated spy novel. While several sources close to the negotiations in the Hanssen case say that Attorney General John Ashcroft initially wanted to seek the death penalty for the G-man turned double-agent, Hanssen had far too much information the government wanted. In exchange for Hanssen telling all he knows, the government took death off the table. The sentencing memorandum in his case puts it bluntly: “It was essential to the United States intelligence community that it obtain a thorough and comprehensive debriefing of the defendant and the only way to obtain this was through a Plea Agreement.” Regan, in contrast, has nothing the intelligence community wants. “Regan’s situation is a hapless one,” says John Martin, former chief of espionage prosecutions at the Justice Department and now a partner in the investigative firm Oso Group Ltd. “He doesn’t have anything to offer, so if he agreed to sit down and cooperate, he would be telling the government what it already knows.” Fortunately for Regan, Judge Lee appointed to assist him a quartet of attorneys whose talents and skills harmonize into a top-notch defense team. Ginsberg is widely regarded as one of the smartest stars of the Alexandria defense bar. Her espionage trial experience includes the recent case of Jean Philippe Wispelaere, the Australian intelligence analyst who pleaded guilty to attempted espionage in 2001 and is serving a 15-year sentence. Earlier, she represented former FBI counterintelligence agent Earl Pitts, who spied for Moscow from 1987 to 1992. Joining Ginsberg are Alexandria attorneys James Clark, of Land, Clark, Carroll, Mendelson & Blair; solo practitioner Jonathan Shapiro; and Joseph McCarthy of Delaney, McCarthy & Colton. Joseph Bowman, a former Alexandria criminal defense attorney who is now with the Office of Bar Counsel in D.C., has worked with all three men and says their skills should complement Ginsberg’s national security expertise. “Shapiro is the scholarly, bookish guy, with, ironically, a good courtroom demeanor,” Bowman says. Bowman and Shapiro worked together representing Gregory Murphy, the mentally ill man suspected of murdering 8-year-old Kevin Shifflett in Alexandria. After Murphy famously slugged Shapiro in court, the judge replaced Shapiro with McCarthy. Shapiro worked on the Wispelaere case with Ginsberg and represented former CIA turncoat Nicholson in 1996. McCarthy and Clark will handle the sentencing phase of the case. “They are perfect because they’re compassionate, easy guys,” Bowman says. “They are the two people you want to talk to a jury to convince them not to execute.” In 1998, McCarthy and Clark represented convicted spy James Clark, a former army paralegal who pleaded guilty to conspiracy to commit espionage. Clark also defended former army cryptologist and Moscow spy David Boone, who is now serving a 25-year sentence. Prosecutors in the Alexandria Division of the Eastern District of Virginia have never secured a death sentence. The pressure is on Patricia Haynes, lead prosecutor in the Regan case, to secure that end here. Haynes is one of those prosecutors even defense lawyers say they admire. Described as hard-driving, she is also known for being diligent, conscientious and scrupulous. “She is one of our heavy hitters,” says her boss, U.S. Attorney Paul McNulty. Currently, Haynes is also working on the capital case against alleged kidnapper Jay Lentz. She also prosecuted Wispelaere, so she and Ginsberg have faced off before. In 1998, Haynes won a 25-year prison sentence for Richard Dobson, who pleaded guilty to raping his stepdaughter over an eight-year period. McNulty hired Haynes’ co-counsel, James Gillis, specifically to work on the Regan case last winter. Gillis came with a national security background, having earned his chops in the internal security (spy-catching) section of the Justice Department’s Criminal Division. To ensure that no classified information is revealed, a classification expert from the NRO will sit in the well of the courtroom throughout the trial.

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