- The Washington Times - Wednesday, March 7, 2001

Federal prosecutors will face difficulties in winning a court case against accused spy Robert P. Hanssen, despite strong evidence, legal and intelligence experts said yesterday.

The most serious problem is dealing with the disclosure of some of the U.S. intelligence community's most sensitive secrets should the case go to trial.

Lawyers for Mr. Hanssen, a 27-year FBI special agent, are expected to try to reveal some of the highly classified intelligence programs that prosecutors say were compromised by his activities, which spanned 15 years.

The process is known as "graymail" a derivative of blackmail and involves threats to disclose secrets as a way of forcing the government to back down from prosecution and seek a plea deal.

"Graymail is the No. 1 issue in this case," said Joseph E. di-Genova, a former U.S. attorney who prosecuted Israeli spy Jonathan Jay Pollard. "The whole issue is going to be to what extent is the intelligence community willing to reveal information, even in a sanitized form, to make this case."

"All espionage prosecutions are difficult when you're dealing with classified information," said Kenneth deGraffenreid, who was the White House intelligence director during the Reagan administration. "But my view is that juries don't like spies, and most of the time the government wins."

Another potential problem for prosecutors is the fact that the FBI did not arrest Mr. Hanssen picking up a bundle of cash left for him by the Russians as payment for an earlier drop off of secret documents. The FBI also failed to catch and arrest the Russian intelligence officer who was supposed to pick up the document package Mr. Hanssen left.

Doing so would have made the case stronger, analysts said.

However, the case is strong enough that any ultimate plea deal will come after a conviction.

"The deal will be over sentencing, not over a conviction," Mr. deGraffenreid said. "The issue is whether he gets the death penalty. [Prosecutors] will use that as a hammer to get him to confess."

The Classified Information Procedures Act, passed by Congress in 1980, provides some help to spy prosecutors by allowing evidence to be reviewed in secret during trial.

However, the Hanssen case involves secret intelligence operations and methods involving multiple U.S. spy agencies, including the supersecret National Security Agency, which conducts code-breaking and electronic spying.

U.S. officials said Mr. Hanssen had access to ultrasecret special access programs, known as black programs.

During the 1985 trial of NSA officer Ronald Pelton, who was convicted of spying for Moscow, the National Security Agency at first opposed prosecuting him because of the potential exposure of secrets. The case went ahead with the minimal disclosure of compromised secrets, including an underwater electronic eavesdropping program known as "Ivy Bells."

The lead prosecutor in this case is Assistant U.S. Attorney Randy Bellows. Mr. diGenova described him as one of the government's most experienced espionage prosecutors.

Mr. Hanssen's lawyer, Plato Cacheris, is also a veteran, having defended CIA turncoat Aldrich Ames. Ames pleaded guilty in a deal that allowed his wife to be given a lighter sentence. He is serving a life prison term.

Mr. Caheris told reporters on Monday that he currently is not negotiating any deal with prosecutors on the Hanssen case. Mr. Hanssen would plead not guilty to the spy charges "at the appropriate time," he said.

Mark Hulkower, a former assistant U.S. attorney who prosecuted Ames, said linking Mr. Hanssen to evidence of spying also might be difficult. "They have to establish that the documents came from the KGB and that they are tied to Hanssen," Mr. Hulkower said. "They have to authenticate the evidence. This is far from an open-and-shut case."


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