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.

    http://www.fas.org/sgp/jud/hitsel/indict-sup.pdf

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." 

    http://www.fas.org/sgp/jud/hitsel/030113-mult.pdf

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."

    http://www.fas.org/sgp/jud/hitsel/bop.pdf

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."

    http://www.fas.org/sgp/jud/hitsel/030113-vague.pdf

Other motions filed by the defense and the prosecution are posted here:

    http://www.fas.org/sgp/jud/hitsel/index.html

Mr. Hitselberger is not accused of espionage, nor is he suspected of
acting on behalf of a foreign power.

WHEN CAN A COURT REJECT AN AGENCY CLASSIFICATION CLAIM?

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.  (See "Court Says Agency Classification Decision Not 'Logical,"
Secrecy News, March 2, 2012.) 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.

    http://www.fas.org/sgp/jud/ciel/oralarg.pdf

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.

SUNSHINE WEEK EVENTS AIM TO PROMOTE OPEN GOVERNMENT

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.

    http://sunshineweek.rcfp.org/events/

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:

    http://epic.org/events/sunshineweek2013.html

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

    http://www.brennancenter.org/events

Freedom of Information Day at the Newseum on March 15:

    http://www.freedomforum.org/e-vite/press/foi-2013/body.html

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

    http://www.wcl.american.edu/lawandgov/cgs/

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:

    http://www.foreffectivegov.org/obama-first-term-transparency-report

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

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_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:    www.fas.org/sgp/index.html
email:  saftergood@fas.org
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