Judge Tells Prosecutors They Need To Prove Contractor Knew He Had Classified Docs In His 50-Terabyte Stash

Legal Issues

from the go-big-AND-go-home dept

The federal judge presiding over the prosecution of a government contractor who took home 50 terabytes of sensitive national security documents home with him has sent a message. And the message is this: collect it all.

Harold Martin did what surveillance agencies do best. He built himself a haystack of government documents, some of them designated “top secret.” The prosecution is counting on this haystack to put Harold Martin in prison on espionage charges. But the judge has just ordered prosecutors to prove the few “top secret” needles justify a conviction for the entire haystack. Josh Gerstein at Politico has the details.

Baltimore-based U.S. District Court Judge Marvin Garbis suggested in his Feb. 16 order that the sheer volume of information may be a problem for prosecutors because their case is based on 20 felony charges that Martin illegally retained individual classified documents without permission.

Garbis asked the prosecution and defense to explain whether the government must prove that Martin knew he had those specific documents in his possession or whether he could be convicted of the claimed Espionage Act violations without such proof.

Espionage prosecutions are a mess. This mess usually works in the government’s favor. The rules surrounding these prosecutions severely restrict the defenses the accused can raise and the evidence they can submit. The sensitivity of the underlying documents results in plenty of ex parte submissions seen only by the judge and the government. In this case, though, the judge is asking the government to prove Martin knowingly took top secret documents, rather than just ending up with some in his massive collection of government paperwork. If it can’t, Martin might walk away from charges on the premise he had no idea what was in the 50 terabytes in his possession. Here’s law prof Steve Vladeck’s take on the order:

“There has not been a lot of really sophisticated litigation about the awkwardness of treating piles of information as being subject to the Espionage Act because of one piece of that pile,” said University of Texas law professor Stephen Vladeck. “It’s a rare situation where the defendant has a plausible argument that he grabbed the wrong pile of documents.”

Prosecutors aren’t happy with this order. Their response says they have no obligation to prove Martin knew he had sensitive documents in his stash. This is a questionable assertion, considering the accusing party carries the burden of proof in all criminal cases. The government apparently believes it can secure a conviction without this key evidence.

But prosecutors also make a solid point: a requirement like this encourages people exfiltrating government documents to take as many as possible. The more you grab, the harder it is for prosecutors to prove you knowingly possessed classified material.

If this proves to be a sticking point, prosecutors may decide to go after Martin for theft. It probably won’t net them the sentence a 20-count indictment normally would, but probably looks more palatable than accepting Martin’s unsolicited offer to plead guilty to a single count of the charges brought against him.

Hopefully, the judge won’t back down from this demand. The government’s track record with espionage prosecutions is terrible. They’ve severely harmed people who’ve done nothing more than try to be a good employee. Lots of people take work home with them. Only a very small percentage of those do anything more nefarious with government documents than work off the clock.

Filed Under: data, harold martin, hoarding, nsa, secrets, top secret