Military lawyers for the U.S. government argued Tuesday that Jack Teixeira, the Massachusetts Air National Guardsman who recently pleaded guilty to posting highly sensitive intelligence documents online, should face additional, military-specific consequences for his actions. Lawyers for Teixeira argued his compliance in the federal case and the legal notion of double jeopardy should discourage the military from seeking further punishment.
Teixiera, who declined to make a statement in the small military courtroom at Massachusetts’ Hanscom Air Force Base Tuesday, is currently awaiting sentencing for his conviction on six counts of retaining and disseminating national defense information under the Espionage Act.
He could potentially face an additional two counts of obstruction of justice and one count of disobeying a lawful order under the Uniform Code of Military Justice. Tuesday’s hearing was first step in determining whether the military will move forward with court-martialing him.
The charges could carry consequences including additional jail time and a dishonorable discharge. The fate of the case depends on officers overseeing it.
Lawyers for the government used most of the four-hour hearing to present 14 pieces of evidence they said shows Teixeira both disregarded an order from a superior warning him not to access intelligence unrelated to his job, and that he tried to conceal his misconduct by warning his fellow app users not to disclose the contents of their conversations and by disposing of electronics like a computer and a cell phone.
Teixeira’s lawyers did not present evidence or offer witnesses in his defense.
The discipline to obey orders is fundamental to the U.S. military’s ability to do its job, argued Capt. Stephanie Evans, a lawyer for the government, in closing remarks. Teixeira’s “significant misconduct,” she added, represented a departure from how airmen typically behave and should be judged in a military trial.
In response, Maj. Luke Gilhooly, one of Teixeira’s attorneys, pointed to the fact that the young airman waived his rights and cooperated in the federal case and characterized the additional military charges as government officials attempting to “extract their own pound of flesh” from a cooperatively convicted young man.
Gilhooly also asked the judge to consider whether the legal principle of double jeopardy, which prohibits anyone from being prosecuted twice for the same crime, should preclude the Air Force from bringing additional charges — a conclusion that multiple legal experts suggested is unlikely.
“The command[ing officer] is free to charge him with other offenses that he was not charged with in federal district court,” said Gary Barthel, an attorney and founder of the Military Law Center, a firm that specializes in military cases.
Barthel acknowledged that some of the evidence in the two cases would overlap, but ultimately, he said, the military is not pursuing the same charges Teixeira was already prosecuted with in federal court.
“Even though the charges stem from the same conduct, the [military’s] charges are different,” Barthel said.
Military legal experts told GBH News it is unusual for military charges to follow a federal conviction, but Teixeira’s case — one of the most prominent leaking cases in recent memory — carries institutional implications. Additional charges, they suggested, could send a signal to anyone considering similar conduct.
Rachel VanLandingham, a former military lawyer and professor at Los Angeles’ Southwestern Law School, rejected that notion and said the military’s pursuit of separate charges for Teixeira is misguided.
“To me, it’s highly duplicative, it’s a waste of resources, and it really speaks to a greater malaise, a greater dysfunction, and defective nature of military justice,” she said in an interview with GBH News.
While the additional charges do not violate double jeopardy in legal principle, VanLandingham said, they do “severely implicate double jeopardy values and norms.”
Speaking to the idea of discouraging would-be copycats within the ranks, VanLandingham pointed to the up to 16 years of confinement Teixeira could be awarded at sentencing.
“If our young men and women right now in uniform need greater punishment than that to deter them from leaking classified information, we have got a much bigger culture issue to worry about,” she said.
Lt. Col. Michael Raming, the hearing officer, or person assigned as the case’s military judge, appeared virtually. He will now evaluate the evidence and submit to Major General Daniel DeVoe his recommendation on whether Teixeira’s case should move to trial.
“Whatever recommendation I come to is going to be based on information that I have,” Raming said at the close of the hearing.
