Would-Be Spy Won’t Face Death Penalty

In a setback for the Justice Department, a federal jury Monday spared Brian Patrick Regan the death penalty for trying to sell “vital secrets” to the governments of China and Iraq.

Regan, 40, was convicted Thursday of attempted espionage in the first U.S. spy trial in half a century that could have resulted in an execution.

For that penalty to be imposed, though, jurors had to find that Regan provided specified military secrets to Iraq. On Monday, they determined he did not offer Iraq documents related to nuclear weaponry, military satellites, war plans or other U.S. weapons systems.

If they had found otherwise, the retired Air Force master sergeant could have become the first person convicted in an espionage case to be sent to death since Julius and Ethel Rosenberg were executed in the electric chair in 1953 for passing secrets to the Soviet Union.

Justice Department officials had no comment, and Regan defense lawyer Nina Ginsburg could not be reached for a response to the verdict.

One legal expert said the verdict was a rebuke to a Justice Department that has been trying, under Atty. Gen. John Ashcroft, to secure the death penalty in cases that do not merit such a charge.

“This Justice Department has been pushing the death penalty in almost all espionage and terrorism cases, and, in terms of espionage, Regan represented the weakest case the government has brought,” said Jonathan Turley, a George Washington University law professor.

“His efforts bordered on the comical, like someone learning his trade from bad spy novels,” said Turley, who has represented defendants in several espionage and national security cases in recent years. “This was an extremely clumsy and unhinged individual groping his way toward espionage, a spy wannabe, so this is a credit to the jury that they were able to discern the lines here.”

Regan, a heavily indebted former intelligence analyst, was arrested in August 2001 at Dulles International Airport with coded coordinates of Iraqi and Chinese missile sites and addresses of the Iraqi and Chinese embassies in Switzerland hidden in his right shoe. A married father of four from Bowie, Md., Regan was accused of offering satellite secrets to Iraqi President Saddam Hussein and others for more than $13 million in Swiss currency.

The case was unusual for several reasons.

It was one of the first times in decades in which the government pressed for a trial in an espionage case. Normally averse to any public discussion of national security matters, the government typically enters into a plea agreement.

It was also unusual for the government to seek the death penalty in an espionage case -- particularly one in which the accused wasn’t even charged with actually passing classified information to a hostile government.

In seeking the death penalty, Ashcroft said Regan’s “attempts to sell our national security were a direct violation of his repeated oaths to protect and defend the United States of America, its Constitution and its national security secrets.”

Prosecutors contended that by offering intelligence data to Hussein, Regan created a “grave risk of death” to U.S. military pilots patrolling the “no-fly” zones over Iraq. U.S. Atty. Paul J. McNulty accused Regan of “exceptional planning and premeditation” in plotting his espionage plan, but prosecutors acknowledged they had no admissible proof that Regan ever sold secrets.

During the trial, defense lawyer Ginsburg attempted to portray Regan as a “harebrained” loser who only fantasized about spying and had no intention of selling secrets. The death penalty, she argued in court papers, was “disproportionate to the alleged crime” and “arbitrary and irrational.”

None of the other 11 espionage cases brought by federal prosecutors since 1994 involved the death penalty, even though two suspects -- FBI turncoat Robert P. Hanssen and CIA double agent Aldrich H. Ames -- were believed responsible for the deaths of U.S. agents or informants and the unmasking of countless others.

According to the government, Regan began hatching his plot in January 1999, while he was an intelligence support analyst at the National Reconnaissance Office, an arm of the Defense Department that is responsible for building and operating the nation’s vast array of spy satellites. He worked there initially for the Air Force and then, after his retirement from the military, as a contractor for TRW Inc. from October 2000 until his arrest 10 months later.

Prosecutors said that sometime from 1999 to 2001, Regan wrote to Hussein asking for $13 million in exchange for information about U.S. satellites and other military secrets.

“Thirteen million is a small price to pay to have someone within the heart of the U.S. intelligence agency providing you with vital secrets,” Regan wrote.

The letter was found on his home computer, but prosecutors could not show it had been sent. At the time, Regan had $117,000 in credit-card debts.