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.”