James Hitselberger is the seventh person to be charged by the Obama Administration with violating the Espionage Act. On October 26 Hitselberger was charged with two counts of unlawful retention of national defense information.
Hitselberger was a translator at a US military base in Bahrain. According to the criminal complaint in the case, in April 2012 Hitselberger printed two classified documents and attempted to take the documents with him. He did not have the authority to print or transfer the documents, according to the complaint. One of those documents was SITREP 104 and Hitselberger’s handling of that document was the basis of the first count charged against him. The other document dealt with gaps in US intelligence on the political situation in Bahrain.
The complaint goes on to say that a search of Hitselberger’s residence found another classified document that had its header and footer removed. That is where the markings showing that the document was classified would have been. The document was SITREP 72 and it is the basis for the second count charged against Hitselberger.
The Hoover Institution has a James F. Hitselberger Collection that began with a donation of primary source documents he had acquired relating to the 1979 Islamic revolution in Iran. The collection contained, according to the criminal complaint, 2 classified documents in an area open to the public and 2 classified documents in an area not open to the public. The complaint includes email exchanges between Hitselberger and the institution regarding the documents.
Afterward, James Hitselberger was fired and investigators expected him to return to the US. Instead, he went from Germany to Sweeden, Malta, Bulgaria, and Albania. A memorandum written by a judge in the case said that this posed a problem for prosecutors.
“Counsel for the government proffered that although the government was aware of Defendant’s whereabouts during that time, the countries would not extradite him because the offense charged was characterized as a “political offense.” When Defendant traveled to Kuwait to retrieve his belongings, the United States government took him into custody.”
In a later memorandum, another judge concluded that Hitselberger’s travel was not in violation of the law.
“To be a fugitive, one must flee from something. The government suggests that Mr. Hitselberger fled “a bad situation.” He clearly knew that an investigation was ongoing, and may well have hoped that it would all just blow over. But he was legally free to travel until the warrant for his arrest was issued, and the government made a calculated decision to keep the existence of that warrant a secret. There is, moreover, no evidence that Mr. Hitselberger understood that extradition treaties would not have covered the offense that he did not know he had been charged with. That he was willing to travel to a United States military base also strongly suggests that he was not attempting to evade American authority.”
Secrecy News explains how Hitselberger was taken into custody.
“When it was learned that he was traveling to Kuwait, the Government of Kuwait agreed to expel him into U.S. custody if he arrived there without a valid passport. So the U.S. suspended his passport, and upon arrival placed him under arrest.”
Hitselberger’s case is ongoing.
POSTSCRIPT: The detailed nature of this post, and of my coverage of Espionage Act cases in general, has been made possible by the primary documents put online by the Federation of American Scientists. The Federation of American Scientists was created in 1945 by many of the scientists who had created the atomic bomb to make sure their creation didn’t end up killing us all.