BALTIMORE — 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 Martin 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.”
The prosecution insisted that it should not have to prove that Martin was familiar with all the documents listed in the indictment, or with any of them, for that matter.
“He’s completely on notice … whether or not he cataloged all the documents,” prosecutor David Aaron said. “All we need to show is he knew he had a collection of classified documents.”
Garbis didn’t sound satisfied with those answers.
“That dodges the question of whether the defendant has to know the classification of the document,” the judge said. “You’re comfortable defending a conviction on appeal if the jury is expressly told the government does not have to prove that he knew he possessed Document E?” asked Garbis, referring to one particular count in the indictment.
Aaron said he would be, and he insisted that as long as Martin knew what he was doing was wrong, he had the necessary mindset to be convicted.
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.
Boardman said that another criminal statute made it a misdemeanor to knowingly remove classified information of any kind without permission. High-ranking officials like Sandy Berger, the late Clinton national security adviser, and former CIA Director David Petraeus pleaded guilty under that statute, she noted.
“You don’t want to convict people under the Espionage Act who don’t have an evil purpose,” she said. “There’s a higher degree of culpability for the felony.”
Garbis noted that federal law does impose significant penalties on people who may not have realized the full gravity of their conduct, including in drug cases where a dealer doesn’t know what drugs he actually has or in assault cases where an assailant may not realize she is attacking a federal official.
“You don’t have to know they’re a federal officer,” the judge said. “You just have to know you’re assaulting someone.”
Boardman said those kinds of crimes were not analogous because the Espionage Act targets a very specific type of activity involving a specific class of government documents and information.
“It’s wrong for me to steal, but the prohibited act is not the theft, it’s the retention of national defense information,” she said.
Garbis didn’t make any ruling during the session, nor did he say which way he was leaning. But he seemed highly skeptical about the idea that Martin could be convicted of possessing a document he didn’t know he had.
If the judge rules against the prosecution in the dispute, first reported by POLITICO last month, it will not necessarily be the end of the case. Prosecutors might bring a theft charge or could pursue the misdemeanor charge Boardman cited, or they could seek a plea deal.
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 Harvery 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.
Late last year, Martin offered to plead guilty to one of the 20 counts, but he had no agreement from prosecutors to dismiss the remainder of the case. The plea was never formally accepted by the court.