Execution Possibility Intensifies Spy Trial
Jury Selection Opens In Landmark Case
By Tom Jackman
Washington Post Staff Writer
Monday, January 13, 2003; Page B01
On the quiet shuttle from the Dulles International Airport terminal to its midfield gates, where there's really no place to run, FBI agents arrested intelligence analyst Brian P. Regan in August 2001 before he boarded a plane to Germany. He faced charges of trying to sell classified documents to Iraq, Libya and China.
The indictment didn't allege any large security leaks, but Sept. 11 came three weeks later, and soon Attorney General John D. Ashcroft said Regan should face the death penalty. With that announcement, Regan became the first espionage defendant in the United States to face execution since Julius and Ethel Rosenberg were convicted more than 50 years ago. Jury selection in his trial begins today.
Regan, a 40-year-old father of four from Bowie and a former Air Force sergeant, has pleaded not guilty to three counts of attempted espionage and one count of gathering national defense information. Much of the pretrial wrangling has focused not on the substance of the case, but on the decision to seek the death penalty when it wasn't sought in seemingly more harmful spy cases, such as those of the FBI's Robert P. Hanssen or the CIA's Harold J. Nicholson, who both leaked damaging information to Moscow for years.
The death penalty was not legally available for espionage cases when CIA officer Aldrich H. Ames was arrested in 1994 for selling information that led to the deaths of several U.S. spies. Congress reinstated it as a result of the Ames case.
Regan's legal team filed a lengthy motion in June seeking to eliminate the death penalty in Regan's case, calling it "completely irrational and arbitrary."
"The damage Regan is alleged to have caused is dramatically less than the harm caused by recent spies" such as Hanssen and Nicholson, Regan's attorneys argued, "and significantly less than that caused by every other person charged with espionage since enactment of the federal death penalty."
Regan's court-appointed attorneys -- Jonathan Shapiro, Nina Ginsberg, James Clark and Joseph McCarthy -- even provided a grid listing the other 10 espionage cases tried in Alexandria where capital punishment was an option, along with a summary of their crimes and their sentences. Each listing begins: "Death not sought."
For Regan: "Death sought."
But assistant U.S. attorneys Patricia Haynes and James Gillis argued that discretion on seeking the death penalty rests solely with the prosecution, and U.S. District Judge Gerald Bruce Lee agreed. Lee also said that asking him to compare Regan with the other spies was "legally meritless. While one may wonder why the Attorney General decided to pursue the death penalty in this case when the penalty was not sought in other seemingly more notorious espionage cases . . . is not suited for judicial review except in limited circumstances."
Until August 2000, Regan worked at the National Reconnaissance Office in Chantilly as an analyst for the Air Force. There, he administered the Intelink Web site accessible only by the intelligence community. After his retirement, he was hired by the defense contractor TRW and resumed work at the reconnaissance office, which monitors spy satellites and other classified work.
Prosecutors allege that Regan gave classified documents to "Country A" in fall 2000 and offered to provide additional information. Between 1999 and 2001, the government claims, Regan also wrote a letter to Saddam Hussein that read, in part, "I am willing to commit [espionage] against the United States by providing your country with highly classified information."
It is unclear whether the letter was received by Iraq, but it demands $13 million. "The information I am offering will [compromise] U.S. intelligence systems worth hundreds of billions of dollars," Regan wrote, according to court documents. "I will also provide you with a list of the actual locations and orbits of all of the U.S. spy satellites. . . . As a bonus I will also provide you with a number of intelligence reports and documents on your adversary, Iran." A similar letter was drafted to Libya's Moammar Gaddafi, the government alleges.
By spring 2001, the FBI was gathering information for its investigation into Regan, court records show. Agents claim they watched him scouring Intelink and taking notes, which they believe included looking at satellite photos of Iraqi and Chinese missile sites and jotting down their geographic coordinates.
Regan's Internet surfing led him not only to classified materials, but to the addresses for the European diplomatic offices of Iraq, Iran, China and Libya. He had those addresses stashed in his shoe and classified documents, encrypted notes and a Global Positioning System device in his bags when he was arrested at Dulles on Aug. 23, 2001.
Although Regan's attorneys argue that a seemingly futile plot doesn't merit the death penalty, U.S. Attorney Paul J. McNulty stood firmly behind the decision.
"The seriousness of the charges against Mr. Regan speak for themselves," McNulty said. "He tried to sell our military's most guarded secrets to Saddam Hussein, putting his own greed ahead of the safety of his former colleagues in uniform."
Today, 200 potential jurors will be summoned to fill out a 16-page questionnaire, which asks for basic personal history and views about the death penalty. Lee will then interview each of the potential jurors individually. Opening statements are scheduled for Jan. 27, with the trial to last about two weeks.