US Prosecutors Unable To Persuade Judge That Accused CIA Leaker Must Stay In Jail

A U.S. magistrate judge rejected the government’s request to hold CIA employee Asif Rahman in jail

Asif William Rahman was wearing a green jumpsuit demarcating him as an inmate at the Alexandria Detention Center when he was led into a courtroom by United States Marshals on December 6, 2024. As the U.S. government prepared to argue that Rahman, a CIA employee charged with two counts of violating the Espionage Act, should be held in pretrial detention, his parents, wife, in-laws, aunt, and at least one college friend filled up two rows in the gallery in a show of support.

At the hearing, Rahman’s defense scored an early victory. Throughout the proceedings, Magistrate Judge Ivan Davis was openly skeptical if not outright hostile to prosecutors’ arguments that—despite a “Pretrial Services” report recommending Rahman’s release and ample precedent involving similarly situated defendants—the CIA employee should remain in detention.

Ultimately, Davis not only rejected a government request to hold Rahman in jail but also refused to grant them a stay of his order pending an appeal. But within hours after the hearing ended, the government had filed both an appeal and a motion to stay the magistrate judge’s order with District Judge Patricia Tolliver Giles.

Giles, who will preside over the Espionage Act case against Rahman, quickly granted the motion to stay. On December 11, she is scheduled to hear the government’s arguments about why Rahman should remain behind bars. That date, Rahman will also finally be arraigned.

A Glimpse Into How The U.S. Government Ferrets Out Media Sources

It has been widely reported that Rahman’s arrest stemmed from two documents about potential Israeli strikes on Iran that were published on a Telegram channel called the “Middle East Spectator.” The government’s court filings and statements during Friday’s hearing left little doubt that this is the “national defense information” in question, though prosecutors have opaquely referred to the files as documents about an unspecified ally’s military preparations against an adversary posted on social media.

At this juncture, little is known about Rahman or his potential motives. Rahman has not yet offered an initial plea in the case, but legally speaking he is presumed innocent until proven guilty. It is unknown if any of the government’s unproven allegations against him are true. If they are true—and that’s a big if—what motivated Rahman is also unknown.

The indictment against Rahman is incredibly sparse and provides no insights into what the government believes his motives may be. Plus, at this point, no record of political statements or past whistleblowing through official channels has emerged.

In its filing in support of detaining Rahman, the U.S. government offered a much more substantial picture of what they believe he did and how they ferret out whistleblowers. According to the motion, on October 17 “a social media account” published the two documents to a social media platform, describing them as an “exclusive” coming from a “source” within the intelligence community. Within 19 minutes, a similarly named social media account posted the documents to a second social media platform.

The time of the post and description of its text matches a post by the Middle East Spectator on the social media site formerly known as Twitter. The Middle East Spectator describes itself as “News & Analysis covering the Middle East” and its language about exclusives and sources would further indicate that it views itself as a media publication. A subsequent post on Twitter from the Middle East Spectator said that they had no contact with the source, whom they assumed to be a “whistleblower.”

As the post claimed, the documents were originally posted in a separate Telegram channel and “somehow found their way to our group” after receiving an anonymous direct message that was also received by other journalists and outlets. Initial media reports described the Middle East Spectator as “Iran-affiliated,” but they have rejected that characterization. None of the government’s court filings make that claim nor has Rahman been charged under separate sections of the Espionage Act governing disclosures to foreign government or foreign agents.

Within less than 24 hours, an unnamed U.S. government agency identified the documents as authentic and concluded that they were “ likely accessed through a particular United States Government computer application (USG Application 1) hosted on servers located in the Eastern District of Virginia.” This application allows classified documents to be turned into PDFs. By accessing the document, a unique PDF is created, the user is logged, and the PDF is assigned a unique URL.

Even though the documents were printed and photographed, the government was able to determine “only one user in the entire United States government accessed both Document 1 and Document 2 in the same format they appeared online between the time the documents were published on classified networks and the time the documents were posted on social media and also printed both of those documents.” That person, the government claims, was Rahman.

On November 7, a grand jury in the Eastern District of Virginia indicted Rahman. The indictment was sealed and Rahman was arrested on November 12 by the FBI. The arrest took place in Phnom Penh, Cambodia, where he was stationed with the CIA. Two days later, Rahman was brought to a federal court in the U.S. territory of Guam.

After a quick court appearance, Rahman was ordered to be sent to the Eastern District of Virginia. He has remained in custody since his arrest.

Classified Memories And ‘Pocket Litter’

When in Guam, a Pretrial Services report recommended that Rahman be held pending transfer to Alexandria. It cited the U.S. territory’s proximity to foreign countries as creating a flight risk. However, he is now in the Eastern District of Virginia. And shortly before his detention hearing, Pretrial Services issued a report recommending his release provided certain conditions were met. (The report remains sealed, but the Magistrate Judge talked about its content during the hearing and in his order.)

Under federal law, a limited number of offenses carry a rebuttable presumption that the defendant should be detained pending trial. The Espionage Act is not one of them. For the government to detain an Espionage Act defendant before trial, they must show beyond a preponderance of the evidence that no amount of pretrial conditions will guarantee the defendant’s appearance in court—or clear and convincing evidence that the defendant poses a danger to the community.

Both a preponderance of the evidence and clear and convincing evidence are legal terms of art. A preponderance of the evidence means something is more likely than not; clear and convincing means something is highly probable.

Despite this, the government has been increasingly successful in convincing courts that Espionage Act defendants should be held in pretrial detention. Citing her diary entries and claiming she hated America, federal prosecutors were able to have whistleblower Reality Winner held in pretrial detention. Convicted Vault 7 leaker Joshua Schulte was not only held in pretrial detention but was subjected to Special Administrative Measures, which severely curtailed his ability to communicate with the outside world.

In the most recent Espionage Act case, federal prosecutors successfully had former Air National Guardsmen Jack Teixeira detained before trial. The government not only cited Teixeira’s violent history and lawful possession of a gun but also maintained that he knew secrets and could continue to release them.

The latter argument was repeated by the government in arguing for Rahman’s detention. The government argued that since he possessed knowledge of classified information in his mind, had broken non-disclosure agreements in the past, and that electronic devices were ubiquitous in our society, Rahman was a danger. He could easily continue to share “national defense information.”

This argument was resoundingly rejected by Magistrate Judge Davis. He repeatedly rebuked the government for making arguments about the characteristics of an Espionage Act offense that would apply to all defendants when Congress clearly did not intend for the Espionage Act to carry a presumption of pretrial detention.

Davis stressed that for the government to hold Rahman they needed to distinguish his case from the myriad of other Espionage Act defendants in the Eastern District of Virginia, who were released pretrial (Winner, Schulte, and Texeria were all tried in other districts). The government argued that Rahman’s alleged disclosure was more harmful than other defendants, as it involved an allied nation state’s entire military instead of a single component of the US government.

The prosecution additionally claimed that Rahman did actual damage by causing an “allied nation state to delay kinetic action,” a thinly veiled reference to Israel’s strike on Iran. All of these arguments fell flat.

Furthermore, the government maintained that Rahman took efforts to “fortify” his devices, an apparent reference to encryption to argue this made him a danger to the community. This backdoor attempt to criminalize encryption, which has occurred in several leak prosecutions, was rejected by the judge, who pointed out that as a spy in a foreign country it made perfect sense for Rahman to encrypt his devices.

The government’s most bizarre arguments concerned “pocket litter” seized from Rahman as part of a search incident to arrest. According to the government, when he was arrested Rahman had a number of small, folded strips of paper in his wallet. One piece of paper was an itemized to-do list.

Prosecutors argued the to-do items—“contingencies,” “run” and “vacation in November”—were evidence of an attempt to flee. The defense pointed out Rahman was a runner, who ran over 15 miles a week. But the government claimed the remaining pages contained alphanumeric strings, implying they were some sort of code or cipher potentially containing classified information. They claimed that one sentence had been deciphered and related to U.S. military capabilities.

Magistrate Judge Davis interrupted the prosecution to tell them that sometimes lawyers can’t convey certain information, but the language they use lets the judge know what is really going on. He gave an example of a lawyer whose client is perjuring himself. The lawyer could not tell the judge his client was committing perjury, but if he informed the judge he had to withdraw from the case as his representation of his client was not consistent with his ethical obligations, the judge would understand exactly what was happening.

In a bizarre exchange, the judge told the prosecutor if they were in a similar situation he would understand their words. The prosecutor then told the judge that they were working to get more information from their government partners that would strengthen their case. A three-day period in which more might be known was mentioned, but it was unclear what was supposed to happen in three days.

The defense told the judge that the government couldn’t keep continuing the case and wait for evidence that may never come. The defense then mentioned that the prior day’s court hearing was called with just an hour’s notice. (All of this is unusual, and it is not precisely clear what has been transpiring outside the open court proceedings.)

Defended By An Experienced National Security Prosecutor

At Rahman’s initial appearance in Guam, he was represented by public defenders. However, as of last week, Rahman is currently represented by Amy Jeffress of the white-shoe law firm Arnold and Porter.

Jeffress is a fascinating choice of attorney. Before entering private practice in criminal defense, she was a federal prosecutor who headed the DC US Attorney Office’s National Security Section, served as Attorney General Eric Holder’s Counselor for National Security and International Matters, and the U.S. legal attaché at the London embassy. She has quite literally sat on the opposite side of the courtroom that she now finds herself and is unusually equipped to combat the government in a national security prosecution.

In addition to being a former national security prosecutor, Jeffress has served as a public advocate for the Foreign Intelligence Surveillance Court. The position was created in 2015 as a post-Snowden disclosure reform to how the secret court authorizes surveillance. In that role, she argued that the FBI’s warrantless searches of NSA-collected foreign intelligence surveillance constituted a Fourth Amendment violation.

Under Davis’s ruling, Rahman would be released to stay at his parent’s home after his parents put up a bond secured by their $2.1 million house and if they agreed to lock up any electronic devices that connected to the internet. Rahman would not be allowed to use any electronic devices with internet access unless they were monitored. The defense accepted these conditions.

Judge Patricia Tolliver Giles, who will be hearing the rest of the case, granted a stay until the government presents its appeal, keeping Rahman in jail. Prosecutors will have a second chance on December 12 to argue that Rahman should remain in detention.

https://thedissenter.org/us-prosecutors-unable-to-persuade-judge-that-accused-cia-leaker-must-stay-in-jail/