James F. Hitselberger, a Navy contract linguist who was charged under the Espionage Act for mishandling classified records, yesterday asked a court to release him from pre-trial detention. His release would pose no hazard, and he is not a flight risk, his public defenders said.
Mr. Hitselberg allegedly removed classified records from a secure facility in Bahrain, and had previously donated classified materials to the Hoover Institution, which maintains a James F. Hitselberger Collection. (See Document Collector Charged Under Espionage Statute, Secrecy News, November 7, 2012.) He is not suspected of transmitting classified information to a foreign power.
According to prosecutors, Mr. Hitselberger is a shadowy figure who might vanish if released from custody. They urged that he be detained until trial.
“For almost eight months, the defendant, James Hitselberger, has lived as a fugitive,” according to a November 29 government memorandum in support of detention. “He speaks multiple foreign languages, has an apparent network of friends and acquaintances overseas, and is adept in adapting to foreign surroundings.”
But in a motion for reconsideration filed yesterday, defense attorneys said that prosecutors had misrepresented the facts.
Mr. Hitselberger “neither fled nor hid from law enforcement officials.” He “never tried to conceal his identity or location.” Although government officials had his contact information, “no government agent ever contacted Mr. Hitselberger or asked him to return to the United States.”
“The facts demonstrate that Mr. Hitselberger was not a fugitive, [and he] cooperated with law enforcement in the investigation of his conduct… He was never told that law enforcement agents required him to return to the United States, and he did not ‘flee’ from law enforcement,” defense attorneys wrote.
Even prosecutors admitted that “Hitselberger has no history of violence. Nor has the government’s investigation revealed that he has tried to pass any of the classified information he has acquired to a foreign power.”
Under the circumstances, defense attorneys asked the court to release Mr. Hitselberger from pre-trial detention into the custody of his family, and under electronic monitoring.
“The evidence does not support a finding that Mr. Hitselberger would be a substantial risk of flight or a danger to the community if released,” they wrote. “Mr. Hitselberger will comply with conditions of release and has neither the passport necessary nor the will to flee.”
The offenses allegedly committed by Mr. Hitselberger are undoubtedly violations of classification policy. But the notion that they rise to the level of multiple felonies is hard to credit, and suggests an excess of zeal among prosecutors.
A status conference in the case will be held on December 13.
See also “Linguist charged with pilfering records seeks release” by Josh Gerstein, Politico, December 5.
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