A federal judge said the case against a Camp Smith military intelligence defense contractor is not espionage and, unless the government has evidence of missing files that he could disclose while out on bail, questioned whether he is a danger to the community.
Benjamin Pierce Bishop, 59, is facing charges that he gave classified national security information to his 27-year-old girlfriend, a Chinese national in the United States on a student visa, and that he kept classified files in his Makakilo home.
A hearing on whether to grant Bishop bail was held Friday before U.S. District Court Magistrate Judge Richard Puglisi, who set another hearing for Monday.
Puglisi said unless the government can present evidence that there are missing files that Bishop could access while out on bail, he could not conclude that Bishop poses a danger to the community. Puglisi said the only evidence that Bishop is a flight risk is the seriousness of the charges.
He gave the government until Monday to present additional information to support its request to have Bishop remain in custody without bail.
Bishop’s attorney Birney Bervar said his client was in love with the 27-year-old woman, who is a student.
"He says he was in love with her, and she led me to believe she was in love with him. It’s not an espionage case; it’s a case about love," Bervar told reporters after a detention hearing for Bishop.
Asked whether there was any proof that Bishop provided classified documents to the girlfriend, Bervar said he had not yet been given access to the evidence in the case. He said the evidence he has seen so far — the criminal complaint and FBI’s affidavit — do not allege the woman was working for the Chinese government or that the information Bishop gave her was passed to the Chinese government.
But the affidavit alleges the woman may have attended an international defense conference in Hawaii, where she initially met Bishop, specifically to target people like him with access to classified information.
Until his arrest Feb. 15, Bishop worked at the U.S. Pacific Command headquarters, which is responsible for the country’s military security in the Pacific.
Federal prosecutor Ken Sorenson told Puglisi that Bishop has demonstrated that he cannot be trusted to abide by the oath he took when he was granted top-secret security clearance and that he has information in his head that he could pass on to others if he is released. Sorenson also said Bishop has a 2003 prostitution arrest.
He said Bishop lied to the FBI about having classified files and firearms in his home.
Sorenson said Bishop walked out of PACOM headquarters with volumes of classified documents. He said the FBI recovered 51 marked classified documents in his home.
Puglisi said he understands the seriousness of the charges. But he said this is not a case of espionage and as such, the burden is not on Bishop to prove that he is not a danger to the community. The burden falls on the government to prove that Bishop is a danger.
"If there’s specific information related to potential for disclosure, I want to hear it," Puglisi said.
The judge brought up the example of Wen Ho Lee, a scientist at the center of a federal probe into nuclear secrets theft at Los Alamos National Laboratory. Lee wound up pleading guilty to a single count of downloading sensitive material after the government’s case collapsed.
Puglisi noted that a judge ordered Lee to be held after finding he was a danger to the community because there were missing tapes that Lee could have disclosed if he were released.
Puglisi said there was no evidence Bishop had a secret thumb drive or hidden files containing classified information that he could leak if he were released before trial.
Bishop is asking for release to a third-party custodian, the Rev. Walter Stevens of the Pacific Health Ministry. The Rev. Walter Brownridge of the Cathedral of St. Andrew was previously considered, but Brownridge said the FBI told him he could be a witness in the case.
Bervar agreed that the case is not one of espionage. He said there is no evidence that Bishop’s girlfriend is a spy for the Chinese government and that she passed on any information to the Chinese or any other foreign government.
He said he spoke to the woman Thursday and said she has not been arrested and remains in the U.S.
Bervar declined to say where the woman is residing. He said the FBI searched her home Feb. 15, seized some items and questioned her. He said the woman remains in contact with the FBI and that she passed a government-administered polygraph test.
Bervar said the firearm the FBI found in Bishop’s home belonged to a roommate and that Bishop did not know it was there.
He said Bishop is in good spirits and is a loyal, patriotic American who believes in the justice system and that it will continue to treat him fairly.
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The Associated Press contributed to this report.
