Linguist charged with pilfering records seeks release
In a motion filed Tuesday (and posted here), lawyers for James Hitselberger dispute the government's claims that he spent four months in Europe as a fugitive after being dismissed from his post as an Arabic translator for a Naval Special Warfare Group in Bahrain. He was let go after authorities found two classified documents in his backpack and others in his quarters.
"The facts demonstrate that Mr. Hitselberger was not a fugitive, cooperated with law enforcement in the investigation of his conduct, left contact information with investigating authorities, and was in contact with his former employer and at least one military official during the months preceding his arrest. He was never told that law enforcement agents required him to return to the United States, and he did not 'flee' from law enforcement," federal defenders A.J. Kramer and Mary Petras wrote.
Kramer and Petras assert that while Hitselberger knew he'd lost his job and was under investigation for a security violation, which can lead to loss of the secret clearance he had, he was unaware until his arrest that he might face criminal charges.
"During this time period, Mr. Hitselberger stayed in contact with his former employer and his family and friends, and on at least two occasions, emailed one of the U.S. Army officials who stopped him leaving the secured facility on April 11th. He regularly checked the email account addresses that he had given the NCIS investigators on April 12th. He expected that if law enforcement officials wanted to contact him, they would do so through the contact information he gave NCIS or through his former employer. No law enforcement official ever tried to contact him through the email addresses he provided and continued to check," the defense lawyers wrote.
Hitselberger's lawyers say he interrupted a trip back to the U.S. because he felt ill and he later decided to travel in Europe for a while.
On Aug. 6, Hitselberger was charged in a criminal complaint with violating the Espionage Act by illegally retaining classified information. However, at the government's request, a federal magistrate sealed the complaint so he likely wouldn't have known of the charges. Court documents indicate the U.S. asked several countries in Europe to extradite Hitselberger but they declined since classified information offenses are considered "political" crimes by many nations. In October, however, Hitselberger traveled to Kuwait, which expelled him to the U.S. after officials canceled his passport.
Bringing criminal charges against an individual over mishandling of a few "secret" or "confidential" classified documents is highly unusual, except in cases where espionage is suspected. Some defendants have gotten sentences of as little as probation in cases where they took hundreds or thousands of classified documents to their home without permission. Hitselberger now faces a statutory maximum of up to 20 years in prison on two Espionage Act felonies, though his punishment would almost certainly be shorter under federal sentencing guidelines.
An odd twist in Hitselberger's case is that some of the classified documents he allegedly took while in Bahrain or on previous assignments in Iraq he apparently sent to university archive open to the public, the Hoover Institution at Stanford University.
Copies of the documents found in Hitselberger's quarters and others found at Stanford are posted here, with the allegedly classified info blacked out by the government.
A curious side note: it could be argued that Hoover may be in violation of at least the letter of the Espionage Act, since the law makes it a crime to "willfully retain a classified document obtained without authorization] and fail to deliver it to the officer or employee of the United States entitled to receive it."
A footnote in the defense brief says Hoover has a policy of not returning classified information to the government, but also has some kind of vault that the government has approved for storing classified documents. (It may have to do with the numerous former senior U.S. officials who write memoirs while based at Hoover.)
"Hoover accepts and receives documents from numerous individuals, including senior government officials. Because Hoover often receives classified documents, a government-sanctioned secured facility has been established within the archives to permit Hoover to store these documents. According
to the statements provided to counsel, Hoover does not return classified documents even when the archives receives them without government authorization," the footnote says.
The government could certainly, if it wished, try to use a search and seizure warrant to take control of the classified documents stored at Stanford. It appears it has not done so. That's also an interesting decision. Seeking to seize such document could trigger a legal battle that might draw the attention of journalists, since one could see parallels to the use of such government powers to seize classified documents from a newsroom or a reporter's home.
Asked whether Hoover indeed has a facility for classified documents and whether U.S. authorities have asked that any of the Hitselberger documents be returned, a Hoover spokesperson sent a terse comment that did not address those two points.
"We have cooperated with the FBI in the matter of the Hitselberger papers. The papers are available to the public in the Hoover Institution Archives reading room, from 8:15 to 4:45, Monday through Friday. In light of the forthcoming court case, we have no further comment," said the spokesperson, who asked not to be named.
Hitselberger's case is arguably the seventh leak-related prosecution brought since President Barack Obama took office, if one considers an alleged effort to place documents in the public domain at a university to be a form of leaking.