United States District Court, District of Columbia
Jay I. Bratt, U.S. Attorney's Office, Washington, DC, for Plaintiff.
RUDOLPH CONTRERAS, District Judge.
When James Hitselberger traveled to Kuwait to collect his personal belongings from a United States military base, he was arrested on two counts of unlawful retention of national defense information, in violation of 18 U.S.C. § 793(e). On October 31, 2012, a magistrate judge ordered him detained without bond pending trial. Mr. Hitselberger has appealed that order of detention under 18 U.S.C. § 3145(b).
James Hitselberger is a 56-year-old linguist. He is fluent in Arabic, Farsi, and Russian. In June 2011, he was hired by Global Linguist Solutions, which assigned him to work for the United States Navy at a base in Bahrain. Mr. Hitselberger regularly worked with classified information. The government alleges that, on two occasions earlier this year, Mr. Hitselberger unlawfully retained national defense information.
Immediately after the second alleged incident, Mr. Hitselberger submitted to two voluntary, non-custodial interviews with agents from the Naval Criminal Investigative Service. After the interviews concluded, the NCIS agents asked Mr. Hitselberger for a mailing address where they could send his personal property after he left the base. He provided a physical address in the upper peninsula of Michigan, a phone number associated with that address, and two email addresses. Mr. Hitselberger asked the agents for contact information in case he needed to reach them, but did not receive it. He was permitted to return to
his room and pack his bag, leaving behind many other personal belongings. He was told that Global Linguist Solutions had arranged for him to return to the United States, where he would be officially terminated because of the security violation. At that point, Mr. Hitselberger had not been charged with any crime, nor had he been informed that he was likely to be charged with a crime.
Mr. Hitselberger took a commercial flight from Bahrain to Frankfurt, Germany. Although he was scheduled to travel from Frankfurt to the United States, he instead checked himself into a Frankfurt hotel. He informed Global Linguist Solutions that he was feeling ill and would not be continuing home at that time.
Over the next six months, Mr. Hitselberger traveled throughout Europe. He used his United States passport and made no attempt to conceal his identity or his location as he traveled. To the contrary: he posted updates to Facebook with photographs and place descriptions, sent postcards to friends, used the email addresses that he had provided to the NCIS investigators (which they monitored) and drew on the bank account that he had held since 1984.
On August 6, 2012, the government filed a criminal complaint against Mr. Hitselberger and received a warrant for his arrest. The complaint and warrant were both sealed; he did not learn of them. Mr. Hitselberger continued to travel in Europe, and to communicate with Global Linguist Solutions about the personal belongings that he had left behind in Bahrain. In September 2012, he was told that he could retrieve his belongings from a United States military base in Kuwait. When he arrived at the Kuwaiti border, he was denied entry and arrested.
II. THE BAIL REFORM ACT OF 1984
" In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception." United States v. Salerno,481 U.S. 739, 755, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). The scope of that exception is defined by the Bail Reform Act of 1984, which permits pretrial detention only when the safety of others or the ...