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U.S. can seek death penalty against accused ex-Air Force sergeant

Ruling on constitutionality of statute still to come

Brian Patrick Regan, from an August 2001 court appearance.

ALEXANDRIA, Virginia (CNN) -- A federal judge ruled Thursday that prosecutors can seek the death penalty against Brian Patrick Regan -- accused of attempted espionage -- but did not rule immediately on a claim that the federal death penalty statute is unconstitutional.

Regan, a retired U.S. Air Force sergeant, was arrested in August 2001 for attempted espionage, and conspiracy to transmit classified U.S. national defense information to China, Iraq and Libya.

Attorneys for Regan argued in the pre-trial hearing that the federal death penalty is irrational and arbitrary. They also argued that a U.S. Supreme Court ruling in the case of Timothy Ring rendered the death penalty statute unconstitutional.

In that case, from Arizona, the high court ruled in June that it is unconstitutional for judges rather than juries to hand down the death penalty.

Defense attorney Jonathan Shapiro also argued is it constitutional to execute someone for attempted espionage because -- while there was potential damage -- there was no real damage because the information was never transmitted.

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"There was potential damage but it didn't come to pass," he said. "You can't ignore lack of harm here."

But U.S. Attorney Randy Bellows argued that "attempted espionage is so serious that it does warrant the death penalty."

What Regan was accused of trying to do, he said, had the potential of damaging the population of America. He told the judge, "The punishment is appropriate for this crime."

Regan's attorneys also argued that if the Regan case reaches the death penalty phase, they should be allow to argue against it on the basis that it isn't uniformly sought, citing the government's decision not to see the death penalty against convicted spy Robert Hanssen.

Prosecutors argued that every espionage case is unique.

Judge Gerald Bruce Lee said in a ruling from the bench that prosecutors can seek the death penalty but he added he would rule issue a written ruling later on the issue of whether the federal death penalty statute is unconstitutional.