from the FAS Project on Government Secrecy
Volume 2013, Issue No. 25
March 11, 2013

Secrecy News Blog:


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.


Last year, DC District Judge Richard W. Roberts ordered the U.S. Trade Representative to disclose a classified document to a FOIA requester because, he said, the classification of the document was not properly supported. That ruling in Center for International Environmental Law v. Office of the U.S. Trade Representative was a startling judicial rebuff to executive classification authority of a sort that had not been seen in many years, and the government quickly appealed.

In oral arguments in the DC District Appeals Court last month, government attorneys all but declared that a court has no power to overrule an executive branch classification decision. The transcript of that February 21 hearing has just become available.

Judge Roberts' "substitution of [his] judgment about likely harm to foreign relations [that could ensue from disclosure] fails to give the deference that's due to the Executive in this sensitive area of foreign relations and national security, and is entirely inconsistent with this Court's consistent case law over many decades that emphasizes the need for such deference," argued H. Thomas Byron, III, on behalf of the U.S. Trade Representative.

Circuit Court Judge Brett Kavanaugh asked Mr. Byron whether there were any circumstances in which a court could reject a classification claim.

"When do you think a Court could ever disagree with the Executive's determination in this kind of case?" Judge Kavanaugh asked.

Mr. Byron that if the agency's declarations in support of classification are logical and plausible, then the agency is entitled to judicial deference.

"Isn't that going to cover 100 percent of the cases?" Judge Kavanaugh asked.

"I certainly think, Judge Kavanaugh, that the Executive would not submit a declaration that was not logical or plausible," Mr. Byron replied.

Then he went even further and suggested that the executive branch has exclusive constitutional authority over classification policy.

Judge Kavanaugh was inquiring how the government would respond to an argument made in an amicus brief filed by media organizations contending that Congress had mandated judicial review of classification when it amended the FOIA in 1974 in order to enable Courts to review executive classification judgments. Not only that, but when President Ford vetoed the measure, Congress overrode the veto.

Mr. Byron said, "The question is whether those changes [i.e. the 1974 amendments] altered the constitutionally required deference to the Executive in this area under the Separation of Powers Doctrine," suggesting that the congressional override of President Ford's veto was meaningless and without effect.

"That's interesting," said Judge Kavanaugh. "You don't think Congress could put the courts in the position of second guessing" the executive?

"Well, when it comes to predictive judgments about harm to national security and foreign relations I think that's a very difficult question," Mr. Byron said.

"I agree," Judge Kavanaugh replied.

Cogent arguments to the contrary were made by attorney Martin Wagner on behalf of the Center for International Environmental Law at the hearing and can be found in the transcript.


This week is Sunshine Week, an annual effort sponsored by journalism advocacy and civil society organizations to promote values of open government, freedom of information, and public participation. A rich variety of events are scheduled around the country, most of which are free and many of which will be webcast.

I will be participating in several programs, including these: "Open Government in the Second Term," sponsored by the Center for Effective Government and the Electronic Privacy Information Center on March 12:

The Future of Classification Reform, sponsored by the Brennan Center for Justice on March 14:

Freedom of Information Day at the Newseum on March 15:

Freedom of Information Day at the Washington College of Law Collaboration on Government Secrecy on March 18:

A new report from the Center for Effective Government found reason to praise the Obama Administration's openness in some areas of government but not in national security, which it said has been a "glaring exception" to progress in other domains.

Among numerous recommendations for future progress, the Center report urged the Department of Justice to renounce the use of criminal prosecution for leaks to the media. "Unauthorized disclosures of restricted information to the media should be handled through administrative channels, not criminal prosecution." See "Delivering on Open Government: The Obama Administration's Unfinished Legacy," March 10:


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

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