Death Penalty for Hanssen a Possibility, Ashcroft Says

Atty. Gen. John Ashcroft said Tuesday that the government may seek the death penalty against Robert Philip Hanssen, the veteran FBI agent accused of spying for Moscow.

But former prosecutors and other experts said the Justice Department will face major legal hurdles if it tries to apply a 1994 law that provides capital punishment for divulging the identity of a U.S. agent to a foreign country, causing the agent’s death.

The FBI alleges that Hanssen told Moscow in 1985 that two KGB officers at the Soviet Embassy in Washington were secretly working for the United States. Both men, Sergei Motorin and Valery Martynov, subsequently were executed.

Because Hanssen’s alleged betrayal of Motorin and Martynov took place nine years before Congress passed the law setting the death penalty, defense lawyers could argue that capital punishment would violate the ex post facto clause of the Constitution, which prohibits applying criminal laws retroactively.

Prosecutors have until May 21 to weigh such issues and bring a grand jury indictment against Hanssen, who has been held on an interim criminal complaint since his Feb. 18 arrest. The Justice Department was preparing to indict Hanssen in early March but agreed to a 10-week delay to allow his lawyers to interview him and review documents.

Legal experts said discussion of the death penalty may be intended to pressure Hanssen to cooperate with the FBI. In most espionage cases, the government has agreed to a reduced sentence in return for a guilty plea and cooperation in assessing damage from the spying.

E. Lawrence Barcella Jr., a former federal prosecutor, called preliminary talk about the death penalty a means of “posturing and cage rattling for the purpose of public plea negotiations.”

Ashcroft reflected the same considerations Tuesday. “The laws provide for, in some cases, the death penalty, and I would not hesitate to include the death penalty among the options that are to be considered, based on making sure that we pursue the national interest at the highest level.”