Yesterday former Navy contract linguist James Hitselberger, who has been charged under the Espionage Act with mishandling classified records, was ordered released under supervision while awaiting trial.
Mr. Hitselberger is a multi-lingual translator and collector of rare documents, including records that are now housed in a dedicated collection at the Hoover Institution at Stanford University. Unfortunately for him, the government says that his collection activity extends to some documents that are currently classified. (Document Collector Charged Under Espionage Statute, Secrecy News, November 7, 2012).
Prosecutors had opposed his pre-trial release, arguing that he had fled from law enforcement by traveling for months through Europe, and that he posed a flight risk. But Mr. Hitselberger’s public defender argued effectively that could not have “fled” since he had not been charged with anything until recently, that he had traveled openly under his own name, that he remained in contact with his former employer, and that he voluntarily returned to a U.S. Army facility in Kuwait to recover his possessions.
“As far as he knew, Mr. Hitselberger was free to travel–which he did,” Judge Rudolph Contreras summarized in a memorandum opinion issued today. “And as he traveled, he kept in regular contact with many people through many means, openly used his United States passport, and was willing to go to a military base, which no reasonable fugitive would be likely to do.”
Therefore Judge Contreras ruled for the defense and granted his release, albeit under “high intensity supervision” and with “Global Positioning System monitoring” of his whereabouts. Moreover, “he is expressly prohibited… from entering or being in the immediate vicinity of Union Station, any other bus or train station that provides service outside of the Washington metropolitan area, or any airport….” (See related coverage in Politico.)
Mr. Hitselberger has no record of criminal activity, no predisposition to violent behavior, and even prosecutors admit that he was not engaged in espionage on behalf of a foreign power. There is also no indication that even the mildest adverse consequence arose from his alleged conduct. And yet the government has opted to charge him with two felony counts under the Espionage Act, which seems like an extraordinary overreaction given the circumstances.
In a different policy environment, loss of job and loss of clearance — which Mr. Hitselberger has already suffered — would have been deemed a fully satisfactory response to an offense of this type and magnitude.
Thus, speaking at his 1997 CIA confirmation hearing about his response to leaks (at p. 108), George Tenet said “I don’t want to prosecute anybody; I want to fire somebody. That will send the right signal to people.”
But today, the Obama Justice Department seems unwilling to accept anything short of the maximum available punishment for unauthorized disclosures, at least for those who are not senior officials or acting under color of authority.
It’s not only the Administration, however. This week the House and Senate adopted a sense of Congress resolution urging the Department of Justice to “investigate possible violations of Federal law related to unauthorized disclosures of classified information,” adding that “in appropriate cases, individuals responsible for such unauthorized disclosures should be prosecuted to the full extent of the law.”
Further anti-leak legislation is under imminent consideration in the Senate.
Meanwhile, the White House yesterday issued a new National Strategy for Information Sharing and Safeguarding.
“To foster trust and safeguard our information, policies and coordinating bodies must focus on identifying, preventing, and mitigating insider threats and external intrusions, while departments and agencies work to enhance capabilities for data-level controls, automated monitoring, and cross-classification solutions,” the Strategy states.