Deal May Be Best Bet in Spy Case

Against what prosecutors call “overwhelming” evidence of his wrongdoing, suspected spy Robert Philip Hanssen’s best hope for avoiding a possible death sentence may be to strike a deal and tell all to the government, according to legal and espionage experts.

A plea bargain could prove attractive to prosecutors as well, providing a clean and relatively quick way to avoid a public airing of sensitive national security information surrounding what has become the worst spy scandal in the FBI’s history.

And such a tack, common in spy cases, would allow intelligence officials to plunge more quickly into the laborious task of debriefing Hanssen and figuring out exactly what secrets he may have given the Russians, experts said.

“Espionage cases are often very difficult to try. The paramount reason is that you don’t want to do more damage during the trial than during the commission of the espionage,” said Rep. Adam B. Schiff (D-Burbank), who prosecuted the infamous case of FBI spy Richard W. Miller in Los Angeles a decade ago.

“Whatever information Hanssen may have passed on to the Russians you don’t want transmitted to the rest of the world,” Schiff said in an interview.

Compromise Possible in Hanssen Case

Hanssen, a former FBI counterintelligence agent, stands accused of espionage for allegedly passing secrets to the Russians over a period of 15 years in exchange for $1.4 million in cash and diamonds.

As politicians hold briefings and consider long-term security reforms, Justice Department criminal lawyers are beginning the more immediate task of poring over the voluminous evidence in the case and litigating the charges against Hanssen.

Hanssen intends to plead not guilty. While lawyers on both sides decline to discuss strategy and insist it is still too early to speculate about a plea bargain, they have already shown a willingness to compromise.

Earlier this week, the defense and the prosecution reached an agreement putting off Hanssen’s next court date until May 21. That gives the defense more time to examine the prosecution’s evidence, while agreeing not to fight for Hanssen’s pretrial release.

“The case against him is overwhelming,” federal prosecutors wrote this week. “If convicted, he faces either life in prison or the death penalty.”

After the apprehension of CIA spy Aldrich H. Ames in 1994, Congress toughened espionage penalties to allow the death sentence to be imposed even in peacetime if a suspect had caused the death of U.S. agents or compromised nuclear secrets.

Prosecutors are still considering whether to seek the death penalty against Hanssen, according to officials familiar with the case. The chief argument for doing so would be the FBI’s belief that Hanssen helped the Russians unmask several “moles,” leading to the execution of two double agents working for the United States.

But a lawyer familiar with the defense’s thinking said Hanssen’s lawyers are prepared to attack this claim by arguing that the CIA’s Ames was responsible for the executions of double agents Sergey Motorin and Valeriy Martynov.

Ames disclosed their identities to the Russians in 1985, months before Hanssen allegedly confirmed the names.

Although the death penalty has never been imposed against a spy in the post-Cold War era, observers say it is a prospect that Hanssen and his lawyers must take seriously in light of the intense reaction the spy case has generated in the last two weeks.

“If I were his attorney and the evidence was strong, that’s certainly something I would be concerned about,” said Joel Levine, a Los Angeles lawyer who has defended accused spies and, in the case that inspired the film “The Falcon and the Snowman,” prosecuted them.

Deals Struck in Ames, Other Espionage Cases

Public reaction can be a driving influence.

“Because of the nature of these [espionage] cases, it’s difficult to get jurors who are not biased against your client. After all, you’re talking about treason,” said Fred W. Bennett, who represented John A. Walker Jr., a retired Navy warrant officer who pleaded guilty in 1985 to charges of masterminding a family spy ring that furnished secrets to the Soviet Union.

Walker agreed to plead guilty to espionage charges and to cooperate with prosecutors because he wanted to spare a life sentence for his son, also a Navy spy. Because of his father’s cooperation, Michael Walker got a 25-year sentence, while John Walker received a life term.

The CIA’s Ames also struck a deal in one of the most damaging espionage cases in U.S. history. He agreed to a life term in exchange for leniency for his wife, Rosario, who was a partner in his espionage. In exchange for Ames’ cooperation, she was allowed to serve only a five-year sentence before returning to Latin America to care for their small child.

One convicted spy who did not agree to cooperate with prosecutors was Larry Chin, the first American ever convicted of spying for China. Facing two life sentences after his 1986 conviction, Chin killed himself in prison weeks before he was to be sentenced.

Because of the toughened sentencing imposed against spies after the Ames case, the threat of the death penalty now provides prosecutors with a powerful hammer, but it can also be abused.

In the case of Wen Ho Lee, the computer scientist who was suspected of passing nuclear secrets to the Chinese, one FBI agent asked Lee during a 1999 interrogation: “Do you know who the Rosenbergs are?” referring to the husband-wife Soviet spy team from the 1950s.

“The Rosenbergs are the only people that never cooperated with the federal government in an espionage case,” the agent said. “You know what happened to them? They electrocuted them, Wen Ho.”

Russians Source of Some Hanssen Data?

FBI Director Louis J. Freeh later acknowledged that such intimidation was inappropriate.

The case against Lee largely collapsed, and he agreed to plead guilty last year to a single felony count of mishandling nuclear secrets at Los Alamos National Laboratory and to cooperate with investigators. FBI agents have debriefed Lee at length to determine what happened to the nuclear secrets he downloaded from his computer.

In Hanssen’s case, history and mutual interests point to the strong prospect of a plea bargain, legal and espionage experts said.

“If the primary goal of Hanssen’s lawyers right now is in seeing that he’s not executed, the primary goal of the government should be in seeing that they prepare their case strongly, convict him and get his cooperation,” said John L. Martin, who headed the Justice Department’s espionage investigations unit throughout the spy-crazed 1980s.

Hanssen has some clear leverage going into possible negotiations, experts said.

Federal prosecutors filed a remarkably detailed set of allegations against Hanssen--information that many observers believe must have come at least in part from Russian intelligence sources. If Hanssen seeks to push the case to trial, that could put the U.S. government in the awkward spot of having to divulge how it got that information, Martin said.

The government would also have to consider what secrets it could risk airing in public to prosecute Hanssen. Although there are provisions allowing sensitive information to be heard “in camera,” or in private before a judge, that is not assured.

Said Schiff, the prosecutor in the Miller spy case: “Depending on how the FBI has gathered its evidence against Hanssen, it may be too costly to the FBI to divulge.”

More than anything else, a plea bargain securing Hanssen’s cooperation could provide the FBI with answers to critical questions:

* What exactly did he give the Russians?

* How did he avoid detection?

* What was he doing during a blackout period from 1992 to 1999, when the FBI has found little evidence of communications between him and the Russians?

“The government wants very much to know the extent to which national security was compromised,” Schiff said, “and Hanssen obviously is in a unique position to do that.”