Feds' case against alleged NSA hoarder hits turbulence

- Februari 26, 2018

Federal prosecutors have run into an unexpected hitch in their case against a former National Security Agency contractor accused of hoarding classified information at his Maryland home.

A little-noticed order from a federal judge earlier this month has the potential to upend the prosecution of Harold Martin, who was arrested in 2016 after an FBI search turned up a massive trove of sensitive data he allegedly removed during two decades of work for several different intelligence agencies.

Authorities said they seized more than 50 terabytes of electronic information from the computer specialist's Glen Burnie home, along with a massive quantity of paper documents — some of them classified up to the "Top Secret" codeword level.

However, Baltimore-based U.S. District Court Judge Marvin Garbis suggested in his Feb. 16 order that the sheer volume of information may be a problem for prosecutors because their case is based on 20 felony charges that Martin illegally retained individual classified documents without permission.

Garbis asked the prosecution and defense to explain whether the government must prove that Martin knew he had those specific documents in his possession or whether he could be convicted of the claimed Espionage Act violations without such proof.


"Of course, the Government must prove that Martin possessed Document A without authority. ... Assuming the Government will prove that Document A was included within a pile of documents and that Martin knew he possessed the pile, must he have known that the pile includes that specific document?" asked Garbis. "And, what must the Government prove that Martin knew about the contents of Document A, i.e., whether it contained national defense information?"

Experts said the judge's inquiry is sure to be unwelcome by prosecutors, who may have trouble showing Martin knew he had specific documents in his enormous stash.

"It's a fascinating and, for the prosecution, a rather alarming order from the court," said Steven Aftergood, a classified information expert with the Federation of American Scientists. "It is partly a reflection of the notoriously confusing language of the Espionage Act. It may also reflect the court's unfamiliarity with, or skepticism towards, similar cases."

Many cases involving illegal retention of classified information involve specific evidence showing the defendant took the records for a reason or handled them in a way that left little doubt about his familiarity with their contents.

"There has not been a lot of really sophisticated litigation about the awkwardness of treating piles of information as being subject to the Espionage Act because of one piece of that pile," said University of Texas law professor Stephen Vladeck. "It's a rare situation where the defendant has a plausible argument that he grabbed the wrong pile of documents."

Prosecutors responded to the judge on Friday, denying any need to prove Martin knew he had specific documents charged in the indictment or what was in them. They also said such a requirement would create a bizarre incentive to remove lots of classified information rather than a little.


"Requiring proof that the Defendant knew precisely what documents he possessed, or that he knew the precise reason that his retention of those documents was unlawful, would be inconsistent with the statute and case law," prosecutors wrote. "Moreover, such a requirement would cause the absurd result that a defendant could avoid culpability merely by committing a crime of such magnitude that he could claim ignorance of the details. ... The Defendant’s theft and retention of vast quantities of classified documents does not relieve him of culpability for retaining each individual document."

Martin's attorneys, unsurprisingly, disagreed.

"Mere unauthorized possession and retention of a document does not give rise to criminal liability," defense attorneys wrote. "What makes the conduct ... criminal is when the person knows the information in the document contains national defense information and, regardless of that knowledge, chooses to retain it at home."

A hearing on the issue is expected next week.

It's unclear precisely why Garbis, a George H.W. Bush appointee, raised the thorny questions. However, they appears to have arisen as both sides jockeyed over the defense's right to details about the dissemination of the information classified documents found in Martin's home and car.

While prosecutors have made no allegation that Martin passed the information on to anyone, there have been indications that some of the same information may have been disclosed by others, including as part of a set of NSA and CIA hacking tools that wound up being published online by a group calling itself the Shadow Brokers.

Defense attorneys have said Martin had mental health issues and began hoarding documents in an obsessive attempt to prove his competence in the technology-intensive work he was assigned to.


In December, Martin offered to plead guilty to one of the 20 counts in the indictment. There was no plea agreement with prosecutors, but the defense appeared to be gambling that the government would choose to drop the remainder of their case if they had a conviction in hand. Garbis has yet to accept the guilty plea.

Each count of retention of national defense information carries a potential 10 year prison sentence, although sentences are typically shorter in line with federal sentencing guidelines.

The current dispute may increase pressure on the government to agree to a plea deal that could avoid a ruling from Garbis that might complicate future cases.

Such a plea could involve Martin admitting he knew he had a specific classified document in his stash. Another possibility would be for Martin to plead guilty to theft or "conversion" of government property— a charge which doesn't require haggling about whether Martin knew precisely what was in the documents he took.

"Even if Martin is able to get the judge to side with him, he's not out of jeopardy," Vladeck said. "The reality is the Espionage Act is remarkably capacious, and I don't think this going to end well for Mr. Martin."


 

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