Friday, December 5, 2008

A scientist allegedly took home a giraffe’s worth of classified documents. Should he get four years in prison?

Former Boeing aerospace engineer Abraham Lesnik is in some very good company.

On Monday afternoon, the 62-year-old physicist is to go before a federal judge in Los Angeles to be sentenced for taking classified information home without permission. The list of those who have owned up to similar transgressions reads like a who’s who of the top ranks of America’s national security establishment. They include former attorney general Alberto Gonzales, former CIA director John Deutch, and former national security adviser Sandy Berger. Each of those powerful men escaped without jail time for their misdeeds. So why, then, is the Justice Department throwing the book at the lowly Boeing engineer by asking for a whopping four-year prison term?

The request is turning heads in the legal community, where some see it as wildly out of line with more modest punishments imposed on the high-flyers also caught being cavalier with America’s secrets. Some observers say links to Israel could also have heightened suspicions.

“The public knows about this perceived double standard between high level government officials with friends in high places and the nobodies within the contracting world,” a Washington lawyer who represents employees in disputes over security clearances, Mark Zaid, said. “You’d have to believe it’s something Congress would take a look at.”

“It’s pretty surprising,” one of Washington’s leading experts on classified information policy, Steven Aftergood of the Federation of American Scientists, said of the government’s proposed sentence. “There’s no indication of espionage or even of malice on the part of the defendant and, if that’s the case, then it’s a questionable move by the prosecution…I almost hope there’s something bad we don’t know about because otherwise this looks like a real overreach by the government.”

A probation officer assigned to Lesnik’s case seemed to agree. The official recommended a sentence of a year and a day for the scientist. Lesnik’s attorney, Marc Harris, is asking that his client be put on probation. “Our argument has been and is that these cases, historically, have not been criminally prosecuted and when they have they’ve resulted, almost uniformly, in probationary sentences,” he told me.

Lesnik’s case seems to have begun in a most unusual way: when he sued his employer in 2006 for confiscating a company laptop that had personal medical and financial information on it. In seeking a restraining order against Boeing, Lesnik noted that he was about to embark on a two-week family trip abroad. He’d already told the company he was headed to Israel. The laptop dispute led to at least two FBI searches of his Valley Village, Calif. home. FBI agents said hard drives and other storage devices there contained more than 2000 classified documents, including 400 marked “top secret,” though many were duplicates.

The government’s strongest argument against Lesnik is the sheer volume of data he copied. An unusual visual aid prosecutors submitted to Judge Florence Marie Cooper showed that the stack of classified documents Lesnik took home, if printed out, would have stood more than 21 feet high, exceeding the height of a 19-foot “adult giraffe.”

A thorough investigation of Lesnik, including intense surveillance of his home, turned up evidence that the Boeing employee had bank or investment accounts in Israel, Germany and Switzerland, even though his security clearance applications denied he had accounts abroad. (He said the money was from an inheritance.) Air Force analysts found his laptops had viruses and one “was attacked repeatedly from foreign IP addresses.” Ultimately, though, the FBI doesn’t seem to have found much, if anything, to indicate that Lesnik did more than arrogantly ignore the rules. “Although we have no reliable evidence that Lesnik transferred the classified information he possessed, that does not mean his actions did not jeopardize and even damage national security,” prosecutor Daniel Goodman wrote in a brief filed last month. He compared Lesnik’s conduct to that of a drunk driver who didn’t hit anyone or a methamphetamine lab operator whose house never exploded, but could have.

In July, Lesnik pled guilty to one felony count of retaining classified information without permission. He admitted using a USB “thumb drive” to take copies of eleven specific classified documents from Boeing, including a “top secret” memo “pertaining to national defense satellite threat mitigation.” Lesnik told the court he copied the materials so he could work on them at home. The Justice Department has been cagey about what project Lesnik was working on. However, an early filing in the case indicated he was part of a Boeing team working for America’s spy satellite agency, the National Reconnaissance Office.

The crime carries a potential of ten years in prison, but the defense and prosecution remain sharply at odds over an appropriate sentence. Lesnik’s lawyer cited a raft of cases where famous classified information violators skated by with a slap on the wrist, or less:

--Mr. Deutch, a CIA director under President Clinton, was found in 1996 to have electronic copies of 17,000 pages of classified documents, including “top secret” files, on unsecured computers at his homes in Maryland and Massachusetts. Some were on devices used to dial-up to “high-risk” sites on the Internet. He agreed in 2001 to plead guilty to a misdemeanor and pay a $5,000 fine, while receiving no jail time. However, on his last day in office and before the plea deal was filed, Mr. Clinton pardoned Mr. Deutch.

--Mr. Gonzales, an attorney general and White House Counsel under President Bush, took a variety of classified documents to his home without permission and stored other in a safe not authorized for the storage of “top secret/secure compartmented information.” Some of the notes pertained to the National Security Agency’s highly classified warrantless surveillance program. A Justice Department inspector general’s report issued in September 2008 found that the agency’s ex-chief “violated Department security regulations and procedures.” The department declined to file charges against Mr. Gonzales.

--And in a bizarre incident in 2003, Mr. Berger, a former national security adviser to Mr. Clinton, took top secret documents from the National Archives without permission and stashed them under a construction trailer nearby. He smuggled five highly sensitive documents from the archives to his office, tore some of the papers up and threw them away. He initially said the removal was “an honest mistake,” but later admitted taking the document intentionally. He pled guilty in 2005 to one misdemeanor count of unauthorized removal of classified information and was sentenced to two years probation and a $50,000 fine. He was stripped of his clearance for at least three years, prosecutors did not seek a jail term.

In a response filed last week, prosecutors rejected each of those analogies. “Comparisons are dangerous in this area because each case has a multitude of unique factors,” Mr. Goodman wrote. He said the presidential pardon means Mr. Deutch‘s predicament “does not inform any analysis of what charges were appropriate there or what sentence should be imposed in this case.” The prosecutor said Mr. Gonzales’s “mental state” differed from Lesnik’s. The government dismissed the analogy to Mr. Berger’s case by noting that he pled guilty to a misdemeanor, not a felony. However, the language of the two criminal statutes is essentially interchangeable.

Mr. Goodman also argued Lesnik deserves a tough sentence because he obstructed justice by deleting classified files and hiding disk drives in his home and a storage locker after he came under scrutiny. The defense counters that many defendants who pled guilty to strongly suspected of espionage or improper relationships with foreign agents got sentences of about a year or less.

Prosecutors prefer to compare Lesnik’s conduct to that of Kenneth Wayne Ford, a National Security Agency employee who took more than two boxes of classified documents from the office on his last day of work there. Ford claimed he was framed, but a jury convicted him in 2006 of taking classified information and lying to investigators. A judge gave him six years in prison.

Lawyers who track such cases say that Ford’s sentence is a wild aberration and that losing a job or a clearance is the most serious discipline faced by rank-and-file types who ignore or disobey secret information rules. “Every case I’ve ever come across involving negligent handling was dealt with administratively with a suspended clearance,” a Virginia-based attorney specializing in clearance disputes, Sheldon Cohen, said.

Lesnik’s request for leniency invokes his personal story as the child of Holocaust survivors. Shortly after World War II, he was born in an Austrian refugee camp. He came to the U.S. in 1962, studying at Columbia and the University of Chicago, before earning a doctorate in experimental high energy physics at Ohio State. In letters to the judge, family members describe Lesnik as an observant Jew, but one who only became so after one of his sons, now a rabbi, pulled him into it. There are few indications Lesnik had a particular passion for Israel, but the 2006 trip to the Jewish state and the undeclared bank account there probably drew extra scrutiny to the scientist, Mr. Zaid said.

“At times, Israel is one of the worst countries I’d want to see attached to my client. There is for sure an anti-Israel bias in the intelligence community; not anti-Jewish, but anti-Israel, “ the lawyer said. “To some, I think that (connection) infuriates more than cases involving our adversaries.”

Prosecutors argue that Lesnik’s conduct has done concrete harm because the government must now regard all the information he kept at home and on his personal laptop as permanently compromised. But this argument, if accepted, also magnifies the seriousness of what Berger, Gonzales, and Deutch did. Does the government now proceed as if everything those men took to their non-secure homes or offices is hopelessly lost and in enemy hands? If so, the gravity of what they did was widely understated at the time and the minor punishments they received should have triggered public outrage.

Critics say Lesnik’s case raises questions about why computers with top secret materials on them even have working USB slots for a thumb drive. Top secret documents are supposed to be accounted for on a copy by copy basis. So why can someone even do what Lesnik did and take electronic copies of documents en masse without apparent detection? Some also say an overly tough approach could discourage employees from reporting violations or suspicious activity.

“If no damage was done, education and training rather than punishment might be the proper response,” Mr. Aftergood said. “That should not be understood as complacency, rather it's a question of how do you maintain the allegiance of your cleared workforce.”

Lesnik has caught one break in recent months: his case was assigned to Judge Cooper, who has firsthand experience with the meager sentences imposed even in cases where there were strong indications that mishandling of secret information caused a major intelligence breach . The judge handled cases stemming from the scandal surrounding the FBI’s dealings with an informant who was a suspected double agent for China, Katrina Leung. An FBI agent who headed the China Foreign Intelligence Squad, J.J. Smith, admitted that he allowed her to peruse classified reports as he carried on a secret and illicit 20-year sexual relationship with her. Smith pled guilty to a single count of making a false statement about the affair. The government recommended the veteran FBI agent serve two months in prison. Judge Cooper sentenced him to three months home confinement.

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