Charges Over National Security Secrets Upheld

     WASHINGTON (CN) – It is not duplicative to file a separate charge for every document that represents a national security secret allegedly stolen from a U.S. Navy base in Bahrain, a federal judge ruled.
     James Hitselberger, 56, is fluent in Arabic, Farsi and Russian. Global Linguist Solutions assigned him to the naval base in Bahrain in 2011, but the government said he illegally retained national defense information on two occasions during this placement.
     “The government alleges that on April 11, 2012, two supervisors observed Mr. Hitselberger checking his email in a Restricted Access Area and then printing multiple pages clearly marked as SECRET from a SECRET printer,” U.S. District Judge Rudolph Contreras wrote. “This information contained sensitive troop information and intelligence analysis.”
     The government charged him with three counts of stealing national secrets – one count for each document authorities found – but the linguist filed a motion to compel election between multiplicitous counts, arguing that he cannot be charged multiple times for violating the same law.
     Judge Contreras denied the motion Friday, giving prosecutors the chance to prove that Hitselberger swiped the documents on different days.
     The linguist will face all three counts unless prosecutors are unable to convince a jury that he obtained the documents at different times.
     Section 5 of the Classified Information Procedures Act requires Hitselberger to brief the government and the court on any classified information his defense is likely to disclose during the trial.
     CIPA Section 6 meanwhile could force Hitselberger to explain at a court hearing the use and relevance of previously disclosed classified information.
     Failure to make either showing could lead to the preclusion of such classified information.
     Hitselberger challenged the requirements as unconstitutional, saying they violate his Fifth and Sixth Amendment rights.
     Judge Contreras disagreed Wednesday, calling Hitselberger’s reasoning “flawed.”
     “First, Sections 5 and 6 of CIPA do not require a defendant to specify what he will testify about or even whether he will testify,” the opinion states.
     “In essence, CIPA’s disclosure requirements only govern pre-trial evidentiary disclosures, as opposed to testimonial disclosures. And mere evidentiary disclosures do not violate a defendant’s Fifth Amendment right to remain silent. Moreover, CIPA’s disclosure requirements neither require the defendant to use the disclosed evidence at trial, nor take the stand and testify on his own behalf if he does not wish to do so.”
     Hitselberger has been under house arrest, living with his aunt in Washington area and monitored electronically pending trial.
     Prosecutors failed last year to show that Hitselberger posed a flight risk and should be locked up.
     Apparently naval investigators who initially interviewed Hitselberger about the allegedly stolen documents told him Global Linguist wanted him to return to the United States to be officially fired.
     Instead, Hitselberger traveled through Europe for several months, communicating with friends through is government-monitored email account and updating his Facebook page with sightseeing pictures.
     He did not know that the government had filed a sealed warrant and complaint against him in the meantime. When he tried to retrieve his belongings from a U.S. military base in Kuwait, authorities denied him entry at the border and arrested him.

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