Last fall, the Justice Department quietly indicted a seventh non-spy under the Espionage Act of 1917, the arcane law used to prosecute whistleblowers like my clients Thomas Drake and John Kiriakou.
The details of the newest Espionage Act case against James F. Hitselberger are still emerging, but like the six other Espionage Act defendants before him, there is no evidence Hitselberger was a spy. The government accuses Hitselberger of taking home allegedly classified documents while he was working as a Navy contract linguist in Bahrain. He faces Espionage Act charges of improper retention of allegedly classified documents.
Given recent cases like Drake and Kiriakou in which the government has shown a consistent propensity for hyperbole and overreach, there could be much more to this case than the government claims. The retention charges against Hitselberger are the same charges levied against Drake, and in the Drake case none of the information Drake was charged with retaining was actually properly classified, and the Justice Department's case against Drake collapsed in spectacular fashion days before trial.
Federation of American Scientists' Steven Aftergood reports on the government's responses to defense motions, including a motion challenging the Espionage Act on the grounds that it is vague and overbroad.
A constitutional challenge to the Espionage Act is practically required in these cases, especially where the defendant is not a spy. Despite the government's assertions, the statute's constitutionality is not a slam dunk. In the landmark case U.S. v. Rosen, Judge T.S. Ellis grafted an intent requirement onto the Espionage Act to save its constitutionality - the intent to harm the United States or benefit a foreign nation. There is no evidence of such an intent in the Hitselberger case.
The government writes that Hitselberger's arguments were unsuccessful in the Drake case and that Hitselberger has more in common with Kiriakou than he lets on. While it is true that Drake was not successful at the trial court level in challenging the constitutionality of the Espionage Act, he did not need to appeal that ruling because the government dropped all felony charges, including the five Espionage Act counts. The government dropped all the Espionage Act counts against Kiriakou as well, and both Drake and Kiriakou are mortified that their cases would be used as precedent to further expand the Espionage Act to target more non-spies.
There are more suspicious wrinkles in the Hitselberger case. Hitselberger established a collection of documents at the Hoover Institution Archives at Standford University, an indication that at least some of information Hitselberger dealt with he saw as worthy of public attention. We don't know if Hitselberger is a whistleblower, like so many threatened and charged under the Espionage Act before him, but it's important to note that Hitselberger's intent, while certainly relevant to the Espionage Act charges, is not the relevant factor in determining whether or not he is a whistleblower. One becomes a whistleblower by operation of law, by making a disclosure that reasonably evidences waste, fraud, abuse, illegality or a danger to health and public safety.
It remains to be seen if Hitselberger made such disclosures, but nonetheless, the Espionage Act is a problematic, heavy-handed law intended to go after spies, and the Obama administration has a terrible track record of using Espionage Act charges to silence dissenters.