A federal judge has thrown a wrench in the government’s case against National Security Agency Contractor Harold T. Martin III by questioning how much foreknowledge a federal contractor needs to have for their possession of NSA documents to constitute theft of government information.

On Feb 16, 2018, U.S. District Judge Marvin Garbis ordered a legal hearing to take place before March 6, 2018, at which both the defense and prosecution must define what they think the government must legally prove to convict Martin of theft, as originally reported by Politico.

“Of course, the government must prove that Martin possessed Document A without authority,” Garbis wrote in the order. “However, what must it prove regarding Martin’s knowledge of that possession? Must it prove that Martin knew that he possessed Document A? What must the government prove regarding Martin’s specific knowledge of his possession of Document A? Assuming the government will prove that Document A was included within a pile of documents and that Martin knew he possessed the pile, must he have known that the pile includes that specific document? And, what must the government prove that Martin knew about the contents of Document A, i.e., whether it contained national defense information?”

The case against Martin, who worked as a contractor for Booz Allen Hamilton and had access to government information from 1996 to 2016, hinges on whether he “willfully” retained documents containing national defense information, as established in the statute he is charged with violating. It reads:

“Whoever having unauthorized possession of, access to, or control over any […] information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempt to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it.”

Martin is currently only charged with retaining the information, not with the intent to transmit it to another entity.

The judge’s order required both parties to submit briefs outlining their perspective on the government’s burden of proof by Feb. 23, 2018.

According to the brief submitted by the defense, the government must prove that Martin had the document, that it contained national defense information and that Martin willfully retained it. Namely, this means that the prosecutors would have to prove that Martin knew he had the specific documents containing national defense information and that keeping them was a violation of the law.

The prosecution on the other hand, argued that the government must only prove that Martin “knew in general that his conduct violated the law.”

The prosecution’s brief said that requiring the government to prove that Martin both knew what specific documents he had and that they contained national defense information would enable a defendant to claim innocence so long as the volume of documents was too large to reasonably know all of their contents.

Effectively, under the prosecution’s argument, the government would have to prove that Martin chose to keep documents in a way that he generally knew was unlawful, rather than by mistake or accident.

“If an individual with the Defendant’s training observed in an appropriate authorized storage location a binder or box labeled ‘TOP SECRET,’ and took the binder or box home, such an individual would know that his or her retention of the documents within the binder or box was prohibited — and therefore would act willfully in retaining them — even if the individual did not examine the contents of the binder or box,” the prosecution wrote in its brief.

In January 2018, the case against Martin appeared to be straightforward for the prosecution, as he was scheduled to plead guilty to one of the 20 counts against him of willfully retaining national defense information. The plea has not yet been accepted by the judge.

Under such a plea, Martin would only face the fines and prison time for one count of willful retention, capped at 10 years rather than 20.