Last fall, Navy contract linguist James Hitselberger was charged under the Espionage Act with two counts of unlawful retention of national defense information after several classified documents were allegedly found in his possession. (See “Document Collector Charged Under Espionage Statute,” Secrecy News, November 7, 2012.)
Two weeks ago, in a superseding indictment, prosecutors added a third charge of unlawful retention under the Espionage Act, along with three other counts of unauthorized removal of a public record.
Mr. Hitselberger’s public defenders responded with a battery of pre-trial motions, including a new challenge to the constitutionality of the Espionage Act itself.
The defense attorneys said the indictment against Mr. Hitselberger is “multiplicious,” meaning that a single offense has been alleged in multiple, redundant counts. This is an impermissible practice that is considered prejudicial to a defendant. Mulitplicious counts “afford the government an unfair advantage by increasing the likelihood that the jury will convict on at least one count, if only as the result of a compromise verdict.” The defense asked the court to compel prosecutors to choose between Count One and Count Two, “both of which charge the same offense of unlawful retention of national defense information.”
Defense attorneys also moved for a “bill of particulars” to require the government to identify exactly which “national defense information” Mr. Hitselberger is accused of unlawfully retaining in violation of the Espionage Act.
“Even if the documents at issue here are classified and the government proves beyond a reasonable doubt the Mr. Hitselberger retained them, the government must establish that information within these documents constitutes national defense information…. [Yet] much (if not all) of the information contained in the documents is publicly available information…. In order to prepare for trial without needlessly preparing to respond to irrelevant information or guessing at what the government deems relevant, defense counsel must be directed to the portions of the documents that the government claims constitute national defense information.”
But perhaps the most interesting motion filed by the defense, and one which adds a dimension beyond the particular facts of Mr. Hitselberger’s case, asks the court to find the unlawful retention statute of the Espionage Act unconstitutionally vague.
Every leak prosecution has included a defense challenge to the constitutionality of the Espionage Act, almost as a matter of course. The constitutionality of the Act has consistently been upheld, though sometimes with limiting factors imposed by the court. In any event, the Hitselberger motion, filed by public defenders A.J. Kramer and Mary Manning Petras, carefully distinguishes the current matter from previous cases. At several points the motion included striking insights from Melville Nimmer and other legal scholars to bolster its argument. The result is something more than a pro forma gesture.
The Espionage Act prohibition on unlawful retention of national defense information (18 USC 793e) “is a statute of alarming breadth and little definition,” the defense attorneys concluded. “Because the statute is vague, this Court should dismiss Counts One, Two and Three of the indictment.”
Other motions filed by the defense and the prosecution are posted here.
Mr. Hitselberger is not accused of espionage, nor is he suspected of acting on behalf of a foreign power.