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Stephen Kim, the Espionage Act & the Country’s ‘Broken’ & ‘Unfair’ System for Prosecuting ‘Leaks’

Former State Department employee Stephen Kim

Former State Department employee Stephen Kim is the second person, who leaked information to a reporter, to plead guilty to violating the Espionage Act. And, on Wednesday, he became the fourth person under President Barack Obama to be sentenced to prison for the “unauthorized disclosure of national defense information”—violating the World War I-era law intended for prosecuting spies.

In June 2009, Kim disclosed information on what the US knew about North Korea’s nuclear program and the threat it posed. He communicated with Fox News reporter James Rosen, who subsequently was labeled in an FBI affidavit as a “co-conspirator” in the leak.

The story was published under the headline, “North Korea Intends to Match UN Resolution With New Nuclear Test.” Rosen indicated he had a “source” that informed him that the CIA knew that Pyongyang had four planned actions to detonate nuclear weapons in missile tests and that the country had plans for a major escalation in North’s uranium-enrichment program.” More significantly, the “source”—Kim—informed Rosen that American intelligence officials had lost track of components for a long-range missile.

No sources or methods for intelligence gathering were revealed in the story. Fox News explicitly noted that such information had been withheld to protect operations by “US spymasters” from being jeopardized. In fact, Rosen drew minimal attention to the part of the disclosed information that could have truly embarrassed intelligence officials.

On June 11, according to government prosecutors, Kim had access to a top secret intelligence report in a classified database, which contained information about US “military capabilities and preparedness of North Korea.” He was not authorized to “deliver, communicate or transmit any national defense information” to Rosen or “any other member of the media.”

He was sentenced to 13 months in prison, and, in the sentencing memorandum from the government, it was plainly stated that the government believed he had no motivation to “expose any government misconduct.” He was not a whistleblower. He did not think he was disclosing “any government waste, fraud, abuse or any other kind of government malfeasance or misfeasance.” Kim “acted with knowledge that this disclosure was both unauthorized and unlawful.”

These kind of statements by the government obscure the reality that Kim never would have had a chance if the case had gone to trial to argue he had exposed information in the public interest.

The Espionage Act permits government prosecutors to apply it as a blunt instrument and exact draconian punishment on any lower-level government employee, who thinks they can become a participant in the culture of leaks pervasive in Washington.

His defense attorney, Abbe Lowell, could not have made a case that involved Kim’s motive. He could not have made a case, which analyzed the actual impact of the leak. He could not have made arguments about whether the disclosed information even had an ability to cause harm.

The judge lowered the burden of proof for prosecutors from having to demonstrate information could possibly have caused damage to the United States to only having to prove it was “national defense information” that was released.

Lowell, in a statement to the press, argued this case “demonstrates that our system for prosecuting ‘leaks’ in this country is broken and terribly unfair.”

“Lower-level employees like Mr. Kim are prosecuted because they are easier targets or often lack the resources or political connections to fight back,” Lowell added. “High-level employees leak classified information to forward their agenda or to make an administration look good with impunity. In fact, in this case, news reports from the same day demonstrate thatStephen was not the only government employee discussing the topic at issue. Stephen may have told the reporter what the reporter already knew from others, but Stephen was the only one charged.”

The Espionage Act was never intended to be used against government employees who talk to reporters. It was never for putting people like Kim in jail for more than a decade. It was for “traitors and spies.” But President Barack Obama’s administration has effectively transformed the Espionage Act into a de facto Official Secrets Act, prosecuting more individuals under the law for leaks than all previous presidents combined.

How the Justice Department had allowed investigators to target the phone and email records of Rosen to obtain evidence was an outrage to numerous people once it became public knowledge. But Lowell pointed out that this played no role in how the Justice Department prosecuted Kim. Improperly collected evidence was not suddenly destroyed and the government did not choose to seek a non-criminal resolution to the case.

In court on April 2, Kim’s attorneys tried to distinguish Kim from former NSA contractor Edward Snowden and former Army intelligence analyst Chelsea Manning, who released documents to WikiLeaks. They claimed Kim had no “political agenda.” [Note: Manning was convicted of multiple violations of the Espionage Act and will be appealing that military conviction, and Snowden is charged with violating the Espionage Act.]

“His illegal conduct consisted solely of talking to a member of the news media with whom others in his office spoke as well,” the lawyers said, according to The Washington Post. “Government officials at every level speak with news reporters on a daily basis in Washington .?.?. [M]any of those conversations include the disclosure of classified information. Yet few, if any, of those officials have paid the price that Mr. Kim has paid for a single conversation with a reporter.”

About a half-dozen prosecutors and a dozen FBI agents pursued Kim. He faced the prospect of a lengthy trial where the government would expend “tremendous resources.” Kim chose to take responsibility for what he did and move on with his life.

The outcome bears a striking similarity to what happened in the case of FBI translator Shamai Leibowitz, who pled guilty to violating the Espionage Act, and was sentenced to 20 months in jail.

The FBI and Justice Department, Leibowitz believes, was hell-bent on prosecuting him for seeking to call attention to illegal acts, which to this day he cannot really talk about publicly. His family and him chose to “avoid a prison term, agree to a lesser punishment” and put the “case to rest without any media attention.”

John Kiriakou is a former CIA officer serving a 30-month jail sentence. He made the mistake of confirming the name of an intelligence agent, who had engaged in renditions, when communicating with a reporter.

He had been outspoken on CIA torture and was convinced the government charged him with violating the Espionage Act and Intelligence Identities Protection Act (IIPA) because of his speech. Ultimately, he pled guilty to committing an IIPA violation because he did not know if he could afford to fight the government nor did he want to be imprisoned for more than ten years while his children were growing up.

Kim described the pretrial litigation he had endured in the past three years as “extremely difficult.” It took a toll on him financially and affected him personally. He said he was “dedicated to rebuilding” his life after his time in prison.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."

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