Prosecutors Rebut Defendant’s Challenge to Espionage Act Statute

Last month, attorneys for Navy linguist James Hitselberger, who was charged under the Espionage Act with unlawful retention of classified documents, filed a motion arguing that the Espionage Act is unconstitutionally vague and unenforceable.  Last week, prosecutors replied and said that’s not so.

“Prosecuting Mr. Hitselberger under this statute violates the fair notice requirements of the Due Process clause because multiple terms contained in [the statute] are so vague that they fail to provide him with notice of what conduct is criminal and what conduct is not,” Hitselberger’s public defenders wrote in their March 1 motion.

Last Friday, prosecutors rebutted the defense motion, which they said was without merit.  “Every court that has considered similar challenges to [the Espionage Act statutes] has rejected them and found the provisions to pass constitutional muster,” they wrote.

The prosecutors cited rulings from past and present prosecutions involving charges under the espionage statutes to bolster their argument  — including those of State Department contractor Stephen Kim, former NSA official Thomas Drake, former CIA officer John Kiriakou, and former naval intelligence analyst Samuel L. Morison.  Like Hitselberger, none of those individuals was accused or suspected of espionage on behalf of a foreign power, but rather of unlawfully retaining or disclosing national defense information.

“Recently, the defendant in Drake made the same faulty argument as Hitselberger makes here,” prosecutors wrote. “The district court rejected the defendant’s claim that the term willfulness is unconstitutionally vague.”

“Although Hitselberger admittedly was not a career intelligence professional, he has more in common with defendants such as Morison, Kiriakou, and Kim than he lets on,” the prosecutors asserted.  It was not meant as a compliment.

Prosecutors filed additional responses to several other pre-trial defense motions to suppress evidence, to require a bill of particulars, to eliminate “multiplicious” charges, and to find sections of the Classified Information Procedures Act unconstitutional.