The American public and the rest of the world didn’t need to parse the speech to understand what Bush meant. He was laying the groundwork for a preemptive strike against Iraq. On September 12, 2002, he told the United Nations that unless UN resolutions against the Iraqi regime were enforced, the United States would have no choice but to act unilaterally. A month later, the U.S. Congress gave the president authorization to attack Iraq, and the U.S. military began gearing up for war.
As the stage for this inevitable conflict was being set, the imperative to find what Regan might have stolen continued to gain urgency. In the months after Regan’s arrest, the FBI had probed his daily computer logs at the NRO in fine detail to assess the full breadth of classified material he may have taken. Investigators had been able to ascertain, in addition to the grainy picture they had already constructed of his Intelink accesses, when and for how long he had visited the two high-speed copier rooms proximate to his office suite, where employees had to badge in both to collect printouts and to make photocopies. Even by a conservative estimate, the time he’d spent in those rooms over the two years prior to his retirement would have been enough for him to squirrel away thousands of pages of documents—far more than the eight hundred pages he claimed in his offer to the Libyans. To make things worse for the government, agents learned, Regan had served as the keeper of a library of classified training videos at his division. It could be reasonably assumed that he’d copied some of those as well.
Unable to decipher the three cryptic “letters” Regan was carrying in his blue folder at the time of his arrest, the FBI pursued other avenues to determine where he might have hidden the stolen materials. The searches of the woods by the highway in Farmingdale, the area behind the handball courts at Farmingdale High School, and the parks in Bowie had all been unfruitful, but there was no question of giving up. Investigators downloaded the waypoints stored on Regan’s GPS to derive locations that he might have driven to before he was put under constant surveillance. They visited cemeteries, a favored site for dead drops. It didn’t advance the search.
They thought through the steps Regan had to have taken to hide the materials. Before burying documents, the agents reasoned, he would have had to store them somewhere outside the NRO. With four kids running around at home, as well as the paranoia he had exhibited about being surveilled, he would not have kept the documents in his house, at least not for the entire time it took him to execute the conspiracy. A logical place to store them would have been a public storage facility.
Carr and a veteran analyst named Marc Reeser pored over Regan’s credit card statements. Sprinkled among the hundreds of charges, many of which were for restaurants, Carr and Reeser found several car-rental payments showing that Regan frequently rented cars for two or three days at a time. They also noticed that although he was prolific in using his credit cards, putting every single expense on them, there was a pattern of short gaps in his spending when no charges on them would appear for a couple of days. What was he doing on those days?
The investigators went to the car-rental companies to dig deeper. It turned out that Regan had rented cars on a few occasions in addition to the instances reflected on his credit card bills. He’d paid for these other rentals in cash. Their timing coincided with the periods when his credit cards were inactive, suggesting that Regan may have been covering his tracks on these trips.
The trips were usually made over a span of two days. From the odometer readings on the rented vehicles, the agents could see that Regan drove anywhere between 200 and 300 miles, suggesting a destination within approximately 150 miles of where he’d started. Carr and Reeser sat down with a map, put pins down at the starting locations—typically in the Washington, D.C., area—and used a string to draw circles with a radius of 100 to 150 miles around the pins. The towns that fell on these circles were candidate locations where Regan could have gone to store or bury classified materials.
Using cell phone records and other information, Carr and Reeser narrowed down the list of areas to focus on. The likeliest location they came up with lay just southeast of Richmond, along I-64 East, which they knew Regan often took to go to Virginia Beach. Investigators checked out several public storage facilities there, but the effort was in vain. They wouldn’t realize until later how close they had come.
• • •
After the FBI had dug up the things that Anette had buried at Regan’s behest, prosecutors indicated to the defense that the government was considering charging Anette with obstruction of justice. Like the notice to seek the death penalty, declaring the intent of prosecuting Anette was a not-so-subtle hint from the government to Regan that pleading guilty was his best legal option. “I can’t believe they are going to go after the mother of four children,” Regan wrote to Anette when he learned about the possibility. Still, he refused to budge from his stance.
For months, Anette had pleaded with him to reconsider. In one of her letters, she starkly laid out the two choices she felt he had before him: taking a plea deal, which would guarantee that he would return home one day, or rolling the dice and possibly dying in prison. She begged him, for the sake of the family, not to go to trial. It wasn’t that Regan was uncaring about the family: his letters to her and the children, sprinkled with misspellings, often reflected deep concern for their well-being. If there’s a grease fire on the stove, don’t throw water on it; douse it with baking powder, he advised in one. Don’t forget to unplug the Christmas tree lights at night or else the house could burn down, he cautioned. He exhorted the kids to work hard at school, reminding them that he wanted them to grow up to be doctors or engineers or scientists. The kids shared with him what they’d been for Halloween and asked when he was going to be back with them. The youngest child—who had turned three—sent him a drawing of a flower with the words “I love you” scrawled next to it in black marker.
Despite those heartbreaking exchanges, Regan was unyielding to Anette’s entreaties and to his lawyers’ attempts to persuade him. He told Anette that he was convinced he didn’t have long enough to live to make a plea deal worth considering. The nagging ache in his stomach, he believed, was the symptom of an as-yet-undiagnosed illness that would kill him within a decade. In any case, he was innocent, he insisted; he would be able to prove it in court. It was as if nothing, not even his family, mattered more to him than his fantasy image of himself as a man smart enough to outmaneuver the world.
On December 26, 2002, with just over a month to go before Regan’s trial, the defense filed in court a motion asking for the trial to be postponed. It wasn’t that his lawyers wanted more time to prepare. They were worried that Regan wouldn’t get a fair trial because of events unfolding thousands of miles away in the Middle East.
Days earlier, George W. Bush had ordered a deployment of U.S. troops to the Persian Gulf in a buildup expected to culminate in war. Although UN inspectors were on the ground in Iraq looking for weapons of mass destruction, U.S. officials were skeptical that the inspections would be able to uncover WMDs that Saddam Hussein was intent on hiding. The only way to get the Iraqi regime to be transparent, Bush and his advisers believed, was through military force.
The defense argued that by January 27—when the trial was scheduled to begin—the United States was expected to urge the United Nations to authorize an offensive against Iraq, after which U.S. troops deployed in the region would proceed to launch an invasion. “There is every likelihood that American lives will be lost,” the motion read. “This will happen just as the jury is considering Mr. Regan’s innocence or guilt, and deciding if he will live or die.” Under those circumstances, Regan’s lawyers submitted, the jurors would find it difficult not to feel prejudiced against a defendant charged with trying to sell defense secrets to the very nation that the United States was at war with. “We ask that the court consider putting off this trial until the current situation is resolved,” the motion read.
The government wasn’t
amenable to the delay. The trial had originally been scheduled for June 2002, the prosecution pointed out, and had been pushed back to January 2003 only at the request of the defense. And since the United States had been engaged in conflict with Iraq for a decade, the prosecution argued, the imminence of a full-scale war didn’t change the circumstances enough to warrant a postponement.
The defense may have had more luck anywhere other than the Eastern District of Virginia, which had a reputation as one of the fastest federal courts in the country. It was—and continues to be—referred to as a “rocket docket.” The judge, Gerald Bruce Lee, was of the mind that postponing the trial an indefinite period—possibly years—would not be fair to the government or to Regan. He sided with the prosecution.
Before the trial could begin, Judge Lee had to lay down special rules for the hearings to allow the use of classified evidence in the courtroom. They flowed from a law called the Classified Information Procedures Act (CIPA), which was enacted in 1980 to resolve an old dilemma faced by the executive and the judiciary. Over the prior decades, especially through the seventies, the government became increasingly wary of what came to be known as “graymail”—actions taken by a defendant in a criminal case to reveal or threaten to reveal classified information in the course of a trial. Since the government couldn’t know in advance if the defendant would end up disclosing or compelling the disclosure of defense-related secrets in open court, the government was often forced to forgo prosecution for fear of the potential damage to national security. The government also had to shy away from prosecuting crimes relating to national security where the government would have to unveil classified information to secure a conviction. This bind was a serious vulnerability for the government because it offered a sort of default immunity to traitors lurking within the intelligence community.
CIPA was enacted to close the loophole and balance the need for protecting national secrets with the defendant’s right to a fair trial. Under the law, both the defense and the prosecution are required to notify the court in advance if they plan to introduce any classified information, in which case the court must make arrangements to safeguard it.
Those arrangements were in place at the federal courthouse in Alexandria on the morning of January 27, 2003, when U.S. marshals escorted Regan, dressed in an orange jumpsuit, into a high-ceilinged courtroom for the opening of the trial. His parents, Anne and Michael, had driven down from Farmingdale with Regan’s sisters to attend. They were shocked at how much weight he had lost in prison. He gave them a wan smile.
The twelve jurors who would decide his fate—among them a newly naturalized U.S. citizen originally from Poland—took their seats, facing a television monitor on which they could view any classified evidence that was to be presented. The evidence was also visible on separate monitors situated in front of the judge, the witness, the prosecution, and the defense. All of the screens were turned away from the gallery so that nobody else in the courtroom could see the evidence. The jury was also given copies of some classified documents. Judge Lee explained how witnesses for the defense and the prosecution would testify regarding any classified evidence presented, using what’s known as a silent-witness rule.
“Under this rule, the witnesses will answer questions posed by the lawyers referring you to portions of the documents projected on the screen,” he said. “The witness may answer using generic terms like ‘nation’ or ‘country,’ ‘technique’ or ‘location,’ and then identify the specific nation, location or technique at issue by pointing you to a written document projected on your screen. In this way, the witness can answer without revealing classified information in open court.” And with that began the trial of Brian Patrick Regan, the first individual in American history to face the death penalty for attempted espionage.
• • •
The American justice system holds prosecutors to a high standard. It’s not enough that they prove that the defendant committed the alleged crime. They must prove it to the jury “beyond a reasonable doubt.” That phrase, oft heard in American courtrooms, has important implications for the defendant’s approach to winning an acquittal. All the defense needs to be able to do is inject doubt into the minds of jurors about the prosecution’s claims.
That’s what Regan’s lawyers set about doing as the government laid out its evidence against the former Air Force master sergeant, one key element being the encoded geocoordinates of the Iraqi and Chinese missile sites that Regan had on him when he was arrested. The prosecution alleged that Regan intended to share these coordinates with Iraqi and Chinese embassy officials to establish his bona fides and prove that he had access. The sites’ coordinates and the dates they were imaged, prosecutors argued, would have helped Iraq and China know what targets the United States was watching and when, which in turn would have helped the two countries improve their methods of concealing similar sites in the future.
The defense claimed the information wouldn’t have been remotely useful to Iraq, China, or any rival intelligence service. “What Mr. Regan had with him at Dulles Airport on August 23 was worthless,” Jonathan Shapiro, one of his lawyers, said in the defense’s opening argument. “It wasn’t even classified. It had no value to a foreign nation.” Even if Regan had shared those coordinates with Iraq or with China, the defense claimed, no harm would have come to the United States.
At the core of the argument was the question of what the government could legitimately claim as a secret worth protecting. The Department of Defense and other U.S. agencies spend considerable time and effort determining the classification level for various kinds of information collected by the government. The definitions of these different tiers of sensitivity sound simple enough. Information that would cause “serious damage” to national security if made public is labeled “Secret.” The stamp “Top Secret” is used to classify information whose public disclosure would cause “exceptionally grave damage” to national security.
Those pithy definitions, however, mask a byzantine and often subjective process by which classification officials decide what level of secrecy to ascribe to a document. To most outsiders, this labeling can seem like a pointless exercise in bureaucracy, but within the government, those labels guide who within the intelligence community can access a certain piece of information and how the information needs to be handled.
Investigators hadn’t found any documents stamped “Secret” or “Top Secret” among Regan’s possessions, which the defense saw as an opening for casting doubt on the claim that he was planning to transmit secrets to Iraq and China. The two satellite images that Regan had looked at on Intelink on the day of his arrest may have been classified, but the information that he had derived from them didn’t qualify as a secret, his lawyers argued.
To support that contention, the defense brought in Maynard Anderson, a former Pentagon official, as an expert witness. Anderson, whose job included giving the Department of Defense policy advice on keeping classified information secure, testified that the United States’ photography of military sites using spy satellites was well-known to other nations. “And on the basis of that kind of knowledge, in my opinion, it would not be a surprise to an Iraqi official—intelligence official or otherwise—to learn that we were able to identify the location of a mobile missile site at a particular time on a particular day,” he said.
The prosecution sought to dispel any ambiguity the jurors might have felt about the value of the coordinates by laying out precisely what the Iraqis and the Chinese would have gained from the information. A key witness the government relied on for this purpose was Lieutenant General David Deptula, who had served as the principal planner of U.S. Air Force strikes during the First Gulf War and later commanded operations to enforce the northern no-fly zone. During both those stints, he had experienced Iraqi air defense tactics firsthand while flying F-15s over the country.
Iraqi forces were known to lay what the Americans called a SAMbush, which involve
d luring the enemy’s planes into a zone where they could be surprised by surface-to-air missiles fired from launchers concealed somewhere on the terrain. During the First Gulf War, the tactic helped Saddam’s men down a few dozen aircraft belonging to coalition forces. During the enforcement of the no-fly zones a few years later, the Iraqis found SAMbushes increasingly difficult to pull off because of the United States’ ability to use satellite imagery to detect where mobile missile launchers, including SA-3s, were being moved.
If Regan had handed over to the Iraqis the coordinates of one of their missile sites and the date it was imaged, it could have helped them to make their SAMbushes more effective, Deptula told the jury. “The potential exists for them to deceive us by allowing us to think that that missile system is still there when, in fact, just prior to our arrival in the vicinity, they might move the system to a different location, thinking that we would still believe it’s where it was in its original location, thereby surprising us,” he said.
As it happened, the Iraqis had moved that SA-3 to a new site not long after the image Regan reviewed on Intelink had been photographed. The United States located the system in subsequent satellite images and destroyed it in an air strike on August 27, 2001.
The ability of that particular SA-3 to inflict harm on American pilots wouldn’t be the only concern if Regan had shared the coordinates with the Iraqis. It would have helped the adversary in the longer term, Deptula explained. “Just by virtue of the fact that the information was available to the Iraqis that we knew the type of weapon system indicates to them that their practice of concealment and deception of the weapon system was not effective, which would therefore cause them to react in a number of different ways,” he said. “And that’s perhaps recognizing that their concealment techniques are not working and they could take measures to then conceal the systems to a greater degree than they currently have.” The future impact on American pilots could be deadly.
The Spy Who Couldn't Spell Page 18