As a quirky, curious fellow who follows security law and policy, a little publicized case (at least nationally) from the Northern District of Ohio, United States District Court, made me quit watching Netflix for a couple of hours to study further. The essence of U.S. vs. Sirous Asgari involves an Iranian citizen, working in the United States, charged with theft of trade secrets, wire fraud and Visa (as in permission to stay in the country Visa, not what’s in your wallet Visa) fraud. As the wheels of justice sometimes move at the speed of smell, these charges involve alleged acts from as early as 2011 and 2012.

Asgari’s children went to college in the United States and he listed this as a reason to visit. He was a professor of material sciences and engineering at a university in Iran and when he was visiting the U.S. he landed a job performing research at Case Western University on the subject of precise instruments of materials analysis. This research facility, named the Swagelok Center, was the locus of the case. Asgari allegedly sent trade secret information related to his work to the university he worked for in Iran as well as others in the country. He’s also accused of taking metal samples he worked on back to Iran, without Swagelok’s permission. Asgari then marketed the metal treatment process and research he had stolen from the U.S. to Iranian companies and government institutions, according to the indictment.

All of this was in violation, according to prosecutors, of the trade embargo with Iran that was in place at the time (in addition to going against his tourism Visa). Asgari willingly exported, sold, or supplied goods, technology or services to the country while he was in the United States. The defense has asserted the information released by Asgari was open source, readily available and not a trade secret. The research was funded by the U.S. Navy.

Classified Secrets and Criminal Defenses

From a political/legal perspective, this case grew interesting in 2018 when the District Court Judge suppressed most of the evidence in the case based on lack of probable cause in executing the search warrant against Asgari. The District Court opinion suppressing the evidence appeared to set new standards for the law enforcement officer and often seemed to convolute the constitutional issues with the guilt or innocence of the accused. In this case, the decision was appealed by the United States and the Sixth Circuit, meaning all of that bad evidence became good again at Asgari’s trial. The opinion issued by the Circuit Court was scathing towards the District Court and defended the FBI handling of the warrants at every turn using tremendous analysis and precedence to substantiate their position. It was a beautiful example of how fair, impartial, bipartisan justices can come to a unanimous decision to make bad law good, and one that other branches of government should note.

The other thought-provoking part of this case, from a security clearance perspective, is that there was apparently some sensitive or classified material subject to discovery by the defense. Under the Classified Information Procedures Act, courts may allow this evidence to be subject to discovery if it is “useful to counter the government’s case or bolster a defense”. Judge Gwin found the material in question to be relevant to the defense and allowed it to be inspected by counsel and subsequently shared with third parties, but only with prior approval from the court to do so. What makes the ruling even more logical is the defense counsel in the case is a retired Marine colonel with a current TS/SCI clearance. Judge Gwin determined the risk of disclosure to the wrong people by someone with the counsel’s background was minimal.

In this era when the handling of a suspect as a terrorist or a criminal is often compounded by the long list of embargoed and sanctioned countries, the Classified Information Procedures Act is fast becoming routine vernacular in legal circles.

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Joe Jabara, JD, is the Director, of the Hub, For Cyber Education and Awareness, Wichita State University. He also serves as an adjunct faculty at two other universities teaching Intelligence and Cyber Law. Prior to his current job, he served 30 years in the Air Force, Air Force Reserve, and Kansas Air National Guard. His last ten years were spent in command/leadership positions, the bulk of which were at the 184th Intelligence Wing as Vice Commander.