IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
[filed March 1, 2001]UNITED STATES OF AMERICA ) ) CRIMINAL NO. 01-185-M v. ) Judge Buchanan ) ROBERT PHILIP HANSSEN, )
On February 20, 2001, the United States moved for detention of the defendant pursuant to 18 U.S.C. Section 3142.1 A detention hearing is set for March 5, 2001 at 2 p.m. We now make a proffer in support of detention.2
GOVERNMENT PROFFER IN SUPPORT OF DETENTION
1 Title 18 U.S. C. §3142(f)( I )(B) provides for a detention hearing where the Government seeks such a hearing in a case that involves "an offense for which the maximum sentence is life imprisonment or death."A. Summary
2 It is well-established that the Government may support its motion for detention by the proffer of evidence. See, e.g., United States v. Gerald Smith, 79 F.3d 1208, 1209-1210 (D.C. Cir. 1996) (and cases cited therein) (noting that every circuit that has considered the question of whether the Government may proceed by proffer at a detention hearing has found that the Government may proceed in this manner.) See, also, United States v. Ferranti, 66 F.3d 540, 542 (2d Cir. 1995).
The Government seeks detention on two grounds, first, that there are no conditions of release "that will reasonably assure the appearance of the person as required," see Title 18 U.S.C. §3142(g) and, second, that there are no conditions of release that will reasonably assure "the safety of any other person and the community," Id. We proffer to this Court, in support of detention, both the Affidavit of February 16, 2001, concerning which United States Magistrate Judge Thomas Rawles Jones, Jr. found probable cause, and the Affidavit of February 21, 2001, concerning which United States Magistrate Judge Alan Kay found probable cause.3
3 The Affidavit of February 16, 2001 is already a part of the record of this proceeding and, therefore, is not attached to this pleading. It is referred to herein as "the Affidavit." The Affidavit of February 21, 2001 was submitted in the District of Columbia in support of search warrants for the defendant's current and former office space. It is attached to this pleading, and is referred to herein as "the Supplemental Affidavit." We note two corrections to the Affidavit. In Paragraph 108, the reference to the "Charlie" drop site should be to the "Doris" drop site. In Paragraph 139, the reference to the date "10/31/01" should read "10/13/01."
The Government respectfully suggests that this Court has rarely been confronted with a more compelling case in support of detention. Hanssen is charged with one of the gravest violations of federal criminal law and, as detailed below, the case against him is overwhelming; if convicted, he faces either life in prison or the death penalty; his perfidy, as alleged in the affidavit, has already resulted in the compromise of extraordinarily sensitive and highly classified information, including the identification of human sources who were subsequently executed. Given his prior access, his expertise as a counterintelligence specialist, and his clear willingness to betray his position of high trust, Hanssen poses a clear and present danger that he will compromise additional information of a sensitive and classified nature.
Moreover, the risk of flight is not fanciful; indeed, it could hardly be less fanciful. He has $800,000 waiting for him in Moscow. He has a Swiss bank account. And he specifically wrote the Russians more than 15 years ago concerning the need for an "escape plan" (because "[n]othing lasts forever"). Recent events did nothing to quell his anxiety; to the contrary, in his final letter to the Russians, deposited in Foxstone Park on February 18, 2001, he wrote: "Something has aroused the sleeping tiger" and warned the Russians that they "should have concerns for the integrity" of the operation. (Supplemental Affidavit at Paragraph 8.) In his briefcase, he carried his current and valid passport and, among other financial documents, a current statement for his Swiss bank account. Virtually up to the moment of his arrest, he was querying the FBI's internal classified computer system for indicators that he was under investigation. It is reasonable to assume that he was not doing this for the purpose of determining when best to surrender.
In short, the release of this defendant under any conditions poses a grave risk of flight and an equally grave danger to the security of our community.
B. Nature of the Pending Charges
There are three key points that must be made about the pending charges:
First, there is the inherent gravity of the crimes charged in the instant complaint.4 The crime of espionage -- particularly given the defendant's high position of trust as a sworn law enforcement officer and an FBI counterintelligence expert -- is as serious, momentous and grievous as any offense that could be lodged against any defendant.
4 The first of the criteria listed in Title 18 U.S.C. §3142(g) is "[t]he nature and circumstances of the offense charged...."Second, there are the substantive allegations in the Affidavit. Hanssen is alleged to have betrayed his country over the course of more than 15 years, an astonishing tenure for a spy. Moreover, the specific compromises alleged in the Affidavit are of the most serious nature, including divulging the identities of human sources who were subsequently imprisoned or executed, compromising dozens of United States classified documents, some of which were classified at the Top Secret/Sensitive Compartmented Intelligence (TS/SCI) level, compromising technical operations of extraordinary importance and value, compromising United States Intelligence Community communications intelligence capabilities and even specific targets, and compromising numerous FBI counterintelligence investigative techniques, sources, methods and operations.
Hanssen was both aggressive and, unfortunately for the United States, productive in his espionage activities. The affidavit alleges that he passed more than 6,000 pages of documentary material to the KGB/SVR, and that he passed 27 letters to the KGB/SVR as well. Moreover, the affidavit alleges that there were essentially no limits as to what Hanssen was willing to do in support of his espionage activities. For example, Hanssen gave up the true identities of three United States Intelligence Community human sources, and a particular highly sensitive and classified information collection technique, for the explicit purpose of protecting his own security. In other words, Hanssen was willing to sacrifice the lives of others in order to protect himself.5 Hanssen also compromised technical operations of extraordinary importance and value to the United States, with no apparent regard to the consequences of his conduct to the national security of the United States.
5 It is worth noting that although we now know that Ames had also compromised these human sources (Motorin, Martynov and Yuzhin), and had done so several months earlier, Hanssen would certainly not have known this in October 1985 when he compromised their identities.Third, it is worth considering what penalty Hanssen might face if convicted at trial. In all espionage prosecutions brought under Title 18 U.S.C. §794, the maximum penalty is life imprisonment (or the death penalty if certain statutory criteria are met). In many cases, however, the actual penalty under the United States Sentencing Guidelines is less than life imprisonment. In the instant case, however, the defendant's compromises of classified information included substantial material classified at the Top Secret level; therefore, if convicted and if the Government did not seek the death penalty, the defendant would certainly face a true life sentence.6
6 The Base Offense Level for espionage involving Top Secret documents is a Level 42, see U.S.S.G. §2M3.1(a)(1), which does not include enhancements for Abuse of Position of Trust, etc.C. Strength of the Government's Case
A principal factor in assessing whether a defendant may be released is "the weight of the evidence against" the defendant. See Title 18 U.S.C. §3142(g)(2). In the instant case, the weight of the evidence is overwhelming.
First, the Affidavit indicates that the Government has possession of detailed and precise information concerning the actual contents of communications from Hanssen -- who was given the codename "B" -- to the KGB/SVR and from the KGB/SVR to Hanssen, including the locations of drop sites, the protocols used in communicating with the KGB/SVR, the payments of money to Hanssen, and the identification of classified information compromised by Hanssen.
Second, the Affidavit indicates that the Government actually has a recording of "B's" communication with one of his KGB contacts, and the voice of "B" has reliably been identified as that of Hanssen.
Third, the Affidavit indicates that the Government has in its possession a plastic bag used by "B" in a drop to the KGB, and has recovered two prints from that bag which have been identified as being those of Robert Hanssen.
Fourth, the Affidavit indicates that the FBI recently recovered from a memory storage card, found in Hanssen's briefcase, five letters to and from the SVR. What could be more compelling proof of Hanssen's direct involvement in espionage?
Fifth, of course, are the events associated with Hanssen's arrest. One can scarcely imagine more incriminating evidence than Hanssen's activities of February 18, 2001: his marking of a known signal site at Foxstone Park; his depositing at the "Ellis" drop site of a package containing classified documents; and his final note to the Russians indicating that he now suspected he was under investigation and that it was "time to seclude myself from active service," but that he "will be in contact next year, same time same place." See Supplemental Affidavit at Paragraph 8.
Sixth is the array of incriminating evidence recovered by the FBI in its various post-arrest searches. The review of such evidence is still underway but it is clear that evidence has been recovered from these searches which corroborates Hanssen's incriminating correspondence with the KGB/SVR. For example, thumb tacks and chalk were recovered from the Ford Taurus. Each of these items was a designated means of communication with the SVR. For another example, the FBI recovered from Hanssen's residence a Diplomatic license plate (Item #199 on the search warrant return) whose license number is identical to one provided by "B" to the KGB in September 1987 as part of a proposal for a new drop protocol. See Affidavit at Paragraph 73. In addition, the FBI recovered from Hanssen's briefcase at his residence statements concerning Hanssen's bank account at Credit Suisse, in Zurich, Switzerland (Items #84 and #167 on the search warrant return). Of course, possession of a Swiss bank account, by itself, would mean little. In this case, however, it was certainly not by itself. It must be viewed in the context of this espionage conspiracy. Thus, the Affidavit indicates that in August 1987, the KGB rejected "B's" suggestion of an account in Switzerland. See Affidavit at Paragraph 106. The Affidavit also indicates that on or before June 2000, "Ramon" -- a name Hanssen used in communicating with the KGB/SVR -- specifically addressed the issue of "Swiss money laudering [sic].'" "Ramon" noted: "[Y]ou and I both know it is possible but not simple." See Affidavit at Paragraph 131. Similarly, in a letter from the SVR to "Ramon" on or before July 2000, the Russians indicated that it considered it "very risky to transfer money in Zurich because now it is impossible to hide its origin...." See Affidavit at Paragraph 132. "Ramon" responded that "It certainly could be done" if the transfers of funds were "insulated by laundering on both the in and out sides...." See Affidavit at Paragraph 133. Clearly, Hanssen's Swiss bank account was anything but innocent, regardless of its current balance.
These are only some examples of the strength of the Government's case against Hanssen. There is much more: the reference in Hanssen's Palm III to "2/18" and the "Ellis" drop site; the many statements and disclosures made by "B" to the KGB/SVR that are, by themselves, identifying of Hanssen (e.g., the choice of the particular "old friend" who "B" proposed to the KGB for recruitment); and so on.
D. Danger to the United States
Hanssen is a 25 year veteran of the FBI who spent almost his entire career until his termination7 in the field of counterintelligence. As the Affidavit indicates, in the course of his career Hanssen was privy to a broad range of information concerning intelligence and counterintelligence activities involving FBI resources. For a number of years he was assigned to the Soviet Analytical Unit, which supported FBI foreign counterintelligence operations and investigations involving Soviet intelligence services. At the time of his arrest, Hanssen possessed a Top Secret security clearance and, in the days up to his arrest, continued to have access to classified information through the FBI's internal computer system.
7 Hanssen was fired late last week.Given this background, it is clear that Hanssen poses a continuing and serious danger to the national security of the United States. If Hanssen were to flee the United States, he would not only be in a position to compromise additional classified information but he would have the freedom to do so with abandon. For more than 15 years, Hanssen compromised classified information to the KGB/SVR despite the substantial difficulties in doing so. Hanssen's commitment to betraying the United States was so complete that he was obviously willing and eager to employ all the arcana of espionage trade craft -- the dead drops, the signal sites, the accommodation addresses, the encrypted disks, the code names, and soon-in order to accomplish his mission. If Hanssen were to be released, and fled this country, he would not need to operate under any such constraints and could be debriefed at leisure and at length.
Moreover, even if one were to assume that Hanssen gave the Russians his "best" information, there are numerous other countries that would likely be keenly interested in acquiring the same classified information which Hanssen is already known to have divulged to the KGB/SVR.
Finally, in assessing the risks to this country, one cannot underestimate the significance of the fact that Hanssen's espionage activity continued up to the moment of his arrest. We are not talking here about a spy who was active in the 1980s and who has been dormant for the past decade. Rather, this is a spy who remained active until he was handcuffed. If released, there is every reason to believe he would flee and, after making good on his escape, would resume making disclosures of classified information -- only this time without the impediment of operating in a clandestine and covert manner.
E. Risk of Flight
Just as the case against Hanssen is overwhelming, so too is the risk of flight. Hanssen has the motive, the expertise and, it is reasonable to assume, the resources to flee.
First, we have a defendant who explicitly raised with the KGB the need for an "escape plan," see Affidavit at Paragraph 59, and was actually provided an emergency communications plan for contact with the KGB in Vienna, Austria, see Affidavit at Paragraph 67.
Second, we have a defendant who was told quite recently that his reserve funds in Moscow had risen to $800,000. See Affidavit at Paragraph 129. In his letter to the Russians, on or before November 2000, "B" asked whether the Russians wanted him "to lecture in your 101 course in my old age?" See Affidavit at Paragraph 133. Many years earlier, he had suggested to the KGB that he might some day be accepted as a "guest lecturer." See Affidavit at Paragraph 59. With $800,000 awaiting him in Moscow, and a potential lifetime in prison awaiting him in the United States -- or worse -- one can only imagine the alacrity with which Hanssen would seek to assume his post as "guest lecturer." (One might note here that Hanssen studied Russian during college. See Affidavit at Paragraph 25.)
Third, a fundamental element of any release order is the defendant's "bond" -- his promise and commitment to appear at all court proceedings. There is abundant reason to believe, however, that Hanssen's bond is worthless. The Affidavit at Paragraphs 41, 42, 43, 45, and 46 recount various formal and written pledges, promises and commitments which Hanssen made to the United States Government and to the FBI -- each of which, by his conduct, he blatantly violated. Indeed, while he signed the FBI Pledge for Law Enforcement Officers in January 1976, which read in part: "I shall always be loyal to my duty, my organization, and my country," see Affidavit at Paragraph 42, it is clear that his one true consistent loyalty was to the KGB and SVR. Thus, Hanssen wrote the SVR on or before November 17, 2000: "Giving up on me is a mistake. I have proven inveterately loyal and willing to take grave risks which even could cause my death...." See Affidavit at Paragraph 133.
Fourth, a Court must have particular concern as to flight risk when it is faced with a defendant with this degree of expertise in spy tradecraft. Hanssen is alleged to have spied for the KGB/SVR for more than 15 years. His unfortunate longevity as a spy is largely attributable to his sophisticated knowledge of FBI counterintelligence and law enforcement techniques. He still has that knowledge, of course, and would therefore pose a far greater danger of successfully fleeing law enforcement authorities than would the average defendant.8
8 Nor can one ignore the obvious fact that Hanssen is a trained law enforcement officer with expertise in the use of multiple weapons. Indeed, the FBI seized from his home at least eleven weapons, and substantial ammunition. See search warrant return at Items #20, #21, #22, #23, #24, #25, #26, #27, #31, #32, and #39.Finally, there is the $600,000 in cash and diamonds which the defendant is alleged to have received. Prior to the defendant's arrest, the Government was unable to conduct a thorough financial investigation as to the disposition of these funds for fear of alerting the defendant. That investigation is now underway. We do know that Hanssen knew, as far back as 1985, that "Nothing lasts forever." See Affidavit at Paragraph 59. We also know he continued to receive very substantial sums of money from the Russians in recent years. See Affidavit at Paragraph 129. Given his intense concern with security -- which is a constant theme throughout his communications with the KGB/SVR -- it is reasonable to assume he may have put aside some portion of these funds to facilitate an escape if, and when, capture appeared imminent.9
9 It is also worth noting that the defendant is financially sophisticated. He received an MBA degree in Accounting and Information Systems in 1971 and became a Certified Public Accountant in 1973.In short, this is a defendant who has, in every way that counts, made it clear that, if released, he will flee.
Robert Philip Hanssen poses a grave risk of flight and an equally grave danger to this country, and no conditions of release will reasonably assure either his appearances in court or the safety of our country. Therefore, the Government respectfully requests that Hanssen be detained.
HELEN F. FAHEY
UNITED STATES ATTORNEY
Randy I. Bellows
Justin W. Williams
Gordon D. Kromberg
Assistant United States Attorneys
Laura A. Ingersoll
Senior Trial Attorney
Internal Security Section
United States Department of Justice