Hoover Institute

Hoover Institute where the James F. Hitselberger Collection is currently stored

A Navy contract linguist charged with two counts of violating the Espionage Act by unlawfully retaining “national defense information” has been hit with a third charge of violating the law.

James F. Hitselberger was working in Bahrain as a translator. A document collector, as Secrecy News’ Steven Aftergood describes, Hitselberger is a “peripatetic collector of rare documents.” In his living quarters, where a “classified document was allegedly found in April” of 2012, newspapers and numerous books could be found. Some of his “discoveries over the years” have been donated “to the Hoover Institution at Stanford University, which actually maintains a James F. Hitselberger Collection.” The collection includes “political posters and leaflets that he gathered in pre-revolutionary Iran.”

Naval Criminal Investigative Service agents, as the criminal complaint filed against him describes, found classified documents in the Hitselberger collection marked “secret.” They also “found a classified document titled Bahrain Situation Update dated February 13, 2012.”

Similar to prior cases where individuals have been charged with improperly possessing or disclosing classified information, Hitselberger is challenging the constitutionality of the Espionage Act charges.

Hitselberger is specifically charged with violating 793(e) of the Espionage Act and argues in a motion posted by Secrecy News:

The statute seeks to impose a criminal penalty on those who willfully retain documents containing information relating to the national defense. The phrase “relating to the national defense” covers such a massive quantity of information that the statute fails to draw a clear line between criminal and non-criminal conduct. In addition, § 793(e) fails to identify with the requisite specificity what constitutes a culpable state of mind. Finally, § 793(e) states that conduct is criminal if a person retains information that the person has reason to believe could be used to the injury of the United States. This phrase is also unconstitutionally vague.

The judge in Hitselberger’s case has acknowledged that the government concedes Hitselberger “did not disseminate the classified information to a ‘foreign power.’” This means the government is not arguing he tried to “advantage a foreign nation” by holding on to the documents.

The defense motion argues that in US v. Rosen the court concluded, “A standard specific intent jury instruction would be insufficient to save § 793(e)rom unconstitutional vagueness. The court reasoned that specific intent alone – acting with the knowledge that the conduct violated the law and the knowledge that disclosing the information could threaten national security – would nevertheless encompass conduct that the defendant may have undertaken with “some salutary motive.”

Additionally, the court required the government to prove the defendant in the case had disclosed information “with a bad faith purpose to either harm the United States or to aid a foreign government” or else the charge would be overly broad.

What is “national defense information”? Legal scholar Melvin Nimmer has argued, “There are innumerable documents referring to the military or naval establishments, or related activities of national preparedness, which threaten no conceivable security or other government interest that would justify punishing one who ‘communicates’ such documents.”

The motion further argues:

The statutory phrase remains unconstitutionally vague because these limits do not cabin the type of information sufficiently togive a possible defendant fair notice of what information or documents may not be possessed,disclosed, or retained. Even requiring that the document or information be classified fails to provide notice of what the statute covers. The executive branch does not exercise theclassification system with any clarity. The Espionage Statutes, 73 Colum. L. Rev. at 1052. And the limitation fails to address situations “where individuals disclose classified information that should never have been classified in the first place, including information about unlawful government programs and activities.” Vladeck, supra note 2 at 4. Stamps on a document identifying it as classified “are at most circuitous references” to regulations other than the Espionage Act and do not give meaning to the phrases within that Act. [emphasis added]

The motion also objects to the phrase “could injure the United States or aid a foreign nation” because it “creates a sweep of such breadth as to violate the Constitution” and “criminalizes conduct that does not injure the United States yet may provide some advantage to a foreign nation.”

It adds that the phrase is “too general to survive First Amendment scrutiny” because, as Nimmer has said, “Since such a standard would never be acceptable in other speech contexts, there is no reason that it should be more acceptable where the antispeech interest is national security.” Therefore, the defense claims:

There are no guideposts here, only that the defendant has reason to believe that disclosure of the information could injure the United States or aid a foreign nation. These statutory requirements, however, is far too abstract a standard to satisfy this requirement. There is nothing “narrow, objective, or definite” about the phrase or the limits on the type of information that would bring disclosure within the realm of criminal conduct.

Hitselberger’s case is the seventh case the Justice Department has brought under the administration of President Barack Obama where the unauthorized possession or disclosure of classified information or the mishandling of classified information is prosecuted under the Espionage, which is a World War I-era law that was used to silence dissidents after it first passed in 1917.

In Pfc. Bradley Manning’s case, his defense challenged the charge by asking, “What type of injury or advantage is contemplated by Section 793(e)? What magnitude of injury or advantage is required? These questions lead to the ultimate question for vagueness purposes: How is a person supposed to know what conduct is proscribed by the statute when the statute itself leaves so many questions unanswered?” His defense pointed out, “Under the terms of Section 793(e), if a reporter had unauthorized possession of information relating to the national defense and published a story containing that information, having reason to believe that the information in the story could be used to the injury of the United States or to the advantage of any foreign nation, that reporter could be subjected to criminal prosecution.” The judge, however, ruled the Espionage Act charges Manning faces did not need to be dismissed because they were unconstitutionally vague or overbroad. (The government remains committed to taking the Espionage Act charges to trial, even though Manning pled guilty to some charges on February 28.)

The defense for John Kiriakou, the CIA agent who is serving 30 months in prison after he pled guilty to violating the Intelligence Identities Protection Act (IIPA), initially was indicted for violating the Espionage Act and his defense was able to raise questions about the charges because Kiriakou had been a CIA officer. “Is information relating to the identity or activities of CIA officers who served overseas more than 5 years ago national defense information the disclosure of which would harm the United States?” the defense asked.

Thomas Drake, NSA whistleblower, faced Espionage Act charges when he was being prosecuted and his defense contended:

The statute criminalizes core political speech–here, an attempt at an open discussion and exposure of fraud, waste and abuse by a government agency. The statute also improperly proscribes the freedom of the press by criminalizing the retention of documents and information necessary for the press to inform the public about the government’s conduct and to engage in debate about governmental policies. While the government certainly has an interest in protecting national security, Section 793(e) is not narrowly tailored to achieving that legitimate governmental interest.

The government has worked to transform the Espionage Act into a Government Secrets Act. With this case, the Obama administration has pursued more than twice as many leaks cases as all previous presidential administrations combined.

Whether it was proper or permissible for Hitselberger to pass on documents to a public archive or to possess the documents himself, it is prosecutorial overreach to use the Espionage Act against him. There are administrative measures that could just as easily gotten the message across that Hitselberger needed to stop what he was doing. But, like prior cases, Justice Department lawyers want desperately to convict someone of violating the Espionage Act so they can strengthen the government’s ability to crack down on the free flow of information, including information that is over-classified and should be available to the public.

Photo by Wally Gobetz released under Creative Commons License