SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2012, Issue No. 128
December 20, 2012

Secrecy News Blog: http://www.fas.org/blog/secrecy/

DETAINED LINGUIST RELEASED UNDER SUPERVISION

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...."

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.

CONGRESS PERMITS RECLASSIFICATION OF RESTRICTED DATA

Certain nuclear weapons-related information that has been removed from the category of Restricted Data (RD) and designated as Formerly Restricted Data (FRD) can now be restored to the RD category, under a provision approved by Congress in the FY 2013 national defense authorization act.

Until now, the removal of information from the Restricted Data category was irreversible, being prohibited by the Atomic Energy Act. That prohibition is nullified by the new legislation.

The authority to reclassify FRD as RD was requested by the Department of Energy last year.

"There is sensitive nuclear weapons design information embodied in some FRD... that should be subject to the more stringent security protections afforded RD now than current programmatic capabilities of DoD and the Intelligence Community permit," wrote Energy Secretary Steven Chu in an August 4, 2011 letter. (Dept of Energy Wants to Reclassify Some Info as 'Restricted Data', Secrecy News, January 17, 2012.)

From an outside point of view, the reclassification of any such information will be undetectable and should not entail an increase in government secrecy. RD and FRD are equally opaque to the general public.

In fact, the move could potentially have positive repercussions. By removing the most sensitive information from the FRD category, it should become more feasible to treat the remaining FRD as "ordinary" classified information and to declassify it in an orderly fashion-- something which does not happen currently.

Improving declassification procedures for FRD was among the recommendations presented to the White House earlier this month by the Public Interest Declassification Board.

"FRD information concerns the military utilization of nuclear weapons, including storage locations and stockpile information and often dates from the end of World War II through the height of the Cold War," the PIDB explained in its report. "Although often no longer sensitive or current, this type of FRD information is of high interest to researchers yet remains largely unavailable to the public, because there is no process for systematically reviewing it for declassification and release under the terms of the Executive Order for national security information."

Therefore, the PIDB recommended, "The classification status of Formerly Restricted Data (FRD) information should be re-examined. A process should be implemented for the systematic declassification review of historical FRD information."

In a 2010 statement to the PIDB, the Federation of American Scientists suggested that the FRD category be eliminated altogether, arguing that it has become obsolete and unnecessary. But such a step was further than the PIDB was prepared to go.

The Senate voted last week to reauthorize the Public Interest Declassification Board until 2014, and the House followed suit yesterday by a vote of 409-1. Rep. Don Young of Alaska voted against the measure for reasons he did not explain.

OFFSHORING, CHEMICAL WEAPONS, AND MORE FROM CRS

New and updated reports from the Congressional Research Service that Congress has not made available to the public include the following.

Offshoring (or Offshore Outsourcing) and Job Loss Among U.S. Workers, December 17, 2012:

Chemical Weapons: A Summary Report of Characteristics and Effects, December 13, 2012:

Party Leaders in the United States Congress, 1789-2012, December 18, 2012:

U.S. Wind Turbine Manufacturing: Federal Support for an Emerging Industry, December 18, 2012:

Survivor Benefits for Families of Civilian Federal Employees and Retirees, December 18, 2012:

The Federal Communications Commission: Current Structure and Its Role in the Changing Telecommunications Landscape, December 18, 2012:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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