• • •
The smoking gun the prosecution presented to the jury was the letters found on Regan’s laptop. To establish criminal intent, the government couldn’t have asked for a starker and more unambiguous exhibit than the portion of the letter that read: “I am willing to commit espionage against the United States by providing your country with highly classified information.” It was a line that the jury heard numerous times over the course of the trial, including when Carr read out the letter, word for word, in his testimony.
The defense’s tack was to question the validity of the letters as evidence. Why had it taken the FBI so long to find them? Regan’s lawyers asked. After all, investigators had seized the Gateway on the same evening that Regan was arrested; the bureau’s digital forensics experts had searched the hard drive right away. “Nothing was found for six months when suddenly this letter materialized,” Jonathan Shapiro pointed out in the defense’s opening argument. He didn’t allege any impropriety explicitly, but the implication of those remarks couldn’t have been lost on the jury. At worst, the government had planted the letters on the computer. At best, agents had mishandled the laptop’s hard drive, which meant that the evidence produced from it wasn’t trustworthy.
The prosecution had anticipated this line of questioning and had spent months preparing for it. Shortly after the letters had been discovered, the FBI sought the help of Mark Walker, an engineer at Microsoft, to figure out when Regan had created those documents and how they ended up in the Gateway’s slack space. As one of the architects of Microsoft Word, Walker was not just well qualified to assist with this analysis. He had had a specific role in developing Word’s autosave feature, which was how the evidence was captured by the hard drive despite Regan’s efforts to cover his tracks.
The FBI arranged for a security clearance for Walker, so that he could review a copy of the hard drive, first sitting in a Sensitive Compartmented Information Facility in Seattle, an agent looking over his shoulder, and later at the Washington Field Office with Carr and other investigators. It wasn’t hard to deduce that Regan had used a floppy disk while working to type the plaintext and encoded versions of the letters addressed to the different countries. Because of the autosave feature of Word, designed to prevent users from losing their work in the event of a crash, the data was periodically saved into the temporary directory of the computer’s hard disk. As a result, multiple versions of the letter—in various stages of editing and completion—were stored in the slack space. Regan deleted these temporary files, but the data remained. At one point, Regan even reformatted his hard disk, perhaps hoping to destroy any residual data, but that didn’t help either.
From the different versions and other associated data on the hard disk, Walker and the investigators were also able to deduce that Regan had copied and pasted different portions of his letter numerous times, making minor changes to the text to customize the letter for specific countries. With each copy-and-paste operation, he left a digital trail. Walker wrote a program to extract the time stamps from the headers of the different documents, which showed that Regan had begun drafting the letter in April 2000 and continued working on it for several months, all the way until November. The timeline matched what Carr’s team had pieced together from other facts. In Regan’s letter, he had helpfully converted for his potential buyers his asking price of $13 million into a figure of 2.24 billion Swiss francs, which worked out to an exchange rate that investigators determined had occurred only twice in recent history: once in 1989 and a second time in April 2000. And the FBI already knew that Regan had mailed his three packages to the Libyan embassy sometime in mid-November 2000, consistent with the computer evidence indicating when he’d made his last changes to the letter.
In the courtroom, of course, the prosecution had to rely on the computer evidence; it wasn’t prepared to discuss what had been mailed. Walker took the stand and described how the Gateway had saved the different document versions. Some had been saved under the login name “Government User,” some under “Valued Gateway customer” and yet others under “Eric33,” which matched an e-mail address Regan used: [email protected]. There wasn’t any doubt that he had authored the letter.
The defense didn’t have any technical grounds to challenge Walker’s analysis. Instead, Ginsberg sought to convince the jury that none of the letters, barring an incomplete version that Regan had spent little time on, had ever been printed. She asked Walker pointedly if another, more complete version of the letter—entered as evidence—was printed.
“It’s possible that it was printed,” Walker said. If the document had been loaded onto a floppy disk and printed from a computer other than the Gateway, he explained, there wouldn’t be a record of it on the Gateway’s hard drive. “The lack of a print date doesn’t necessarily mean it wasn’t printed, whereas the existence of a print date generally indicates that it was printed.”
“So, basically, you are saying almost anything is possible?” Ginsberg asked.
“No, it’s just that the implication only works one way,” Walker answered. “The existence of the date means it’s printed. The nonexistence of a date doesn’t indicate either way.”
• • •
Aside from trying to refute the government’s evidence, Regan’s defense embraced a theme that was decidedly unflattering to him. Their contention was that Regan was too naïve—stupid, even—to really be a spy. Throughout the trial, his lawyers painted him as an eccentric, absentminded character who lacked the intellectual wherewithal to pull off an espionage plot against the mighty U.S. government. At the most, he was acting out a spy fantasy.
After having questioned the validity of the letter found on the Gateway, the defense made fun of it, noting how silly it sounded in tone and content. No honest-to-goodness traitor intending to profit from his country’s secrets would have written such a letter, his lawyers argued. “He wants to be anonymous and he says, ‘Since I do not want to be caught and you should not want me to be caught, I’ll remain anonymous,’” Ginsberg told the jury. “Does a person who is really intending to convince a foreign country that he’s a spy say, ‘If I’m caught, no other agent will attempt to work for you or for your country for fear of being compromised’?”
The asking price of $13 million was just as ridiculous, she claimed, considering that no spy in American history had made even close to that amount. The complicated instructions in the letter for how the transfer of secrets was to take place, without compromising Regan’s anonymity, only underscored his naïveté, Ginsberg said, noting that “the kind of minute detail in this letter is so childlike and so improbable that no serious foreign power would ever believe that this was someone they would risk dealing with.” On top of it all were those numerous spelling errors that according to the defense were indicative of thoughtless amateurishness rather than of cunning conspiracy.
Ginsberg also downplayed the materials seized from Regan at the airport. That the government’s top cryptanalysts—including NSA mathematicians and Dan Olson—had failed to make sense of the handwritten sheets he was carrying in the manila folder, she argued, suggested that their contents weren’t any kind of code at all but gibberish. The Tupperware containers, the glue, the plastic shovel, and the GPS device—all these things in his suitcase that the government had alleged were intended for executing a dead drop—were in the defense’s interpretation nothing more than evidence of Regan’s idiosyncratic ways.
To dispel the notion of Regan as a harmless pretender, the prosecution laid out evidence of his meticulous planning. This wasn’t some dumb guy with an impulsive, half-baked idea; this was somebody who had considered every step he needed to take to bring his plot to fruition. Whatever flaws existed in the plan, and whatever errors he’d made along the way—such as leaving his Internet browser open at the Crofton library, thus allowing agents to see that he’d been looking for embassy addresses—didn’t take anything away from the treasonous natur
e of his conspiracy.
Nor was there any doubt, the prosecution argued, of how committed he was to his scheme, evidenced by all the effort he’d expended in preparation. He had mined Intelink with increasing regularity for months prior to his retirement, which showed that he never thought of turning back. While the defense claimed that he needed to surf Intelink regularly to do his job, the search terms he had used—like “Top Secret Libya” and “Top Secret Iraq”—indicated a more nefarious intent. Carr likened it to a teenager searching the Internet for XXX porn. Later, he had spent weeks drafting his offer letter to different intelligence services, and then spent more than a hundred hours encoding the text, as reflected by the time stamps found on the Gateway.
That wasn’t all. In August 2000, as he neared retirement, he had written to a man named John Clark, a privacy consultant in California, requesting information on how to open an offshore account. He was evidently making plans for how to protect the money he was going to make from his treason. In this letter, which he’d written under the name of Louis Goliwas—an individual who used to live at Regan’s address in Bowie years earlier—Regan mentioned that he’d learned of Clark from J. J. Luna. Agents discovered that J. J. Luna was a privacy consultant and that Regan had come across Clark’s name in a book authored by Luna, How to Be Invisible.
When Carr read the book, he found advice in it on how to hide things “in a way that not even Janet Reno nor the ATF” could track down. Specifically, Luna suggests burying the object in a “state-owned desert wilderness” a certain distance away from a landmark there, such as “a distinctive rock,” and taking a picture of the landmark, along with a GPS recording of its latitude and longitude. Carr and his fellow investigators speculated that Regan might have followed those instructions in stashing the stolen secrets, though that hadn’t helped the FBI find them.
The prosecution coupled Luna’s instructions with some of the cryptic notes found in Regan’s van—including the one with the words “Turkey-block” and “dirt-log” that also contained apparent geocoordinates—to make the point that Regan had likely buried the “800 pages of classified information” that he had talked about in the letters drafted to Iraq and Libya. On the Gateway, investigators had also found Regan’s notes to himself on what, according to the prosecution, were cautionary measures for secreting documents taken from the NRO. “Moving into house to see if anyone is following you. Get ultraviolet stamp marked packages to make sure the seals were not open, store in outside building, switch to van when moving packages. This will throw off any transmitters on my car,” the notes read.
These words weren’t the aimless self-talk of someone engaging in fantasy, Gillis said in his closing arguments for the prosecution. And there was no reason to think that Regan would not have been taken seriously by countries like Iraq and Libya. “My God, can you imagine what Saddam Hussein would have done with the information that he was offering and with the information that he had access to?” Gillis asked the jury. He emphasized that Regan was fully cognizant of the harm his actions would cause to the United States. Despite what the defense “may want you to think,” he said, “the defendant is not stupid.”
• • •
On February 20, 2003, after several days of deliberation, the jury convicted Regan on two counts of attempted espionage—for Iraq and for China—and one count of gathering national defense information to aid foreign governments. He was acquitted of the charge of attempting to spy for Libya—an irony, given how the FBI’s investigation began. Thankfully for Regan and his family, the jury decided against the death penalty on the grounds that he hadn’t offered the Iraqis documents directly related to nuclear weapons, military satellites, communications intelligence, or war plans, which under the espionage statutes meant his offense wasn’t a capital crime. Sentencing was scheduled for May.
After he was convicted, Regan was put into solitary confinement, which meant having to spend more than twenty-three hours a day locked up inside his cell, with no contact whatsoever with other inmates. His only way of passing the time was by reading books borrowed from the jail library. As was customary, the guards would let him out for half an hour to go take a shower, at a time of day that was convenient to them. Regan already knew that he was likely to get a life sentence. The prospect of serving that term under solitary confinement—which prosecutors had hinted could be necessary to prevent him from divulging secrets to fellow inmates—terrified him.
Meanwhile, the threat of Anette’s being prosecuted loomed in the background. During the run-up to his trial, Regan hadn’t focused much attention on the possibility that she, too, could end up in prison, but now the thought of it was inescapable. Who would take care of the kids if that happened? Through his lawyers, he reached out to the government to indicate that he was finally willing to cooperate. Not long before, he’d attempted to blackmail the government; now he was having to contend with the government’s own strong-arm tactics.
In the days that followed, the prosecution drew up a sentencing agreement with Regan’s lawyers. According to the terms, the government would not pursue any charges against Anette for obstruction of justice. Although Regan’s retirement benefits would automatically be forfeited, the government would arrange for Anette to receive a part of his military pension. In exchange, Regan would accept a sentence of life in prison, but he would not be kept in solitary confinement. And most important—from the government’s point of view—he would help the government recover the classified materials he had hidden.
On the morning of March 20, just hours after the United States began bombing targets in Baghdad to begin the war against Iraq, U.S. marshals escorted Regan into Judge Lee’s courtroom in Alexandria to be sentenced. After reviewing the agreement, the judge looked at Regan, who stood before him wearing a green prison jumpsuit.
“Mr. Regan, are you sure you’re willing to take life in prison?”
“Yes, Your Honor.” According to the agreement, he was giving up the right to appeal his conviction or his sentence going forward. He said he was agreeing to the deal to “protect my wife and children from any more pain and suffering.”
Judge Lee reminded him that a life sentence in the federal system meant no possibility of being granted parole. Regan would never again be a free man.
“I feel a life sentence is excessive in my case,” Regan said. “I never harmed anyone. I’m entering into this to protect my family.”
If he was expecting any sympathy from the judge, there was none forthcoming.
“You betrayed your country’s trust,” Judge Lee said. “There’s no doubt that your attempted espionage put our nation’s intelligence gathering at risk. You have joined the list of infamous spies.”
With that, he approved the sentence. For Carr and other FBI agents present in the room, it was a moment of triumph after what had been an arduous two and a half years. Justice had been done. But the task of finding the secrets Regan had stolen still lay ahead.
CHAPTER 9
THE SEARCH FOR BURIED SECRETS
The morning after the sentencing, Steve Carr signed Regan out of a holding cell at the federal courthouse in Alexandria and escorted him into a conference room. Seated around a table there were about a dozen people, including the prosecuting and defense attorneys, as well as representatives from the CIA, the NSA, and the NRO. Carr took off Regan’s handcuffs and asked him to sit down. It was the first time that he’d had a chance to speak to Regan since arresting him eighteen months earlier.
The conversation today was going to be a lot different. To make sure that it got off to a good start, Bob Rice, the NRO counterintelligence agent, had brought along a bottle of Mountain Dew, Regan’s favorite drink, which sat on the table in front of Regan, along with some snacks. Regan settled into his chair and looked around the room, his face devoid of expression.
“How are you feeling about your situation?” Carr asked, sitting at the head of the table.
/> “It stinks that I’ll be in jail for the rest of my life,” Regan replied.
Carr got down to business. “Brian, we want to hear your story,” he said.
Speaking in a flat monotone, Regan described how he’d taken materials out of the NRO and buried them. For Carr, hearing Regan’s account of his crime was the equivalent of a scientist finally getting the requisite field data to empirically validate a well-developed theory. Confirming what Carr and Reeser had inferred in the course of the investigation, Regan admitted to having moved the stolen secrets out of the NRO first to his house, and then to a public storage facility. He also admitted that he’d mailed his espionage offer packages to both Iraq and Iran in addition to Libya.
Although there were a million questions that Carr wanted to ask to fill in the details of Regan’s plot, he had to stay focused on the task of recovering the secrets. “How do we go about finding the stuff?” he asked.
After eighteen months of attempting to mislead investigators, blackmail the government, and fabricate a defense, Regan had no reason left to be secretive. He revealed that he had buried nineteen packages: twelve of them in Pocahontas State Park in Virginia and another seven in Patapsco Valley State Park in Maryland. He had planned on selling only the packages he’d hidden in Virginia, he said. The secrets he’d stashed in Maryland were more sensitive; he claimed he’d never intended to give those away. He’d hidden them with the notion that he might be able to leverage them to negotiate with the government if he ever got caught.
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