The Obama administration, which in its war against investigative journalism has brought more leak cases than all previous administrations going back 40 years combined, persuaded a federal judge in May to make such prosecutions easier by dropping a requirement of proving potential damage to national security.

The prosecution of former analyst Stephen Kim under the Espionage Act is based on charges that he orally disclosed classified defense information to someone in the media, but does not allege that he stole or gave away documents, acted with intent to harm the U.S., received money, or acted in secret. Based on a longstanding precedent decided by the Fourth Circuit Court of Appeals in 1988 called U.S. v. Morison, Kim’s attorneys argued that the government must show that the leak was potentially damaging to the U.S. or beneficial to an adversary. 

The problem for Kim is that he is being prosecuted in federal court in Washington, DC, which is located outside of the Fourth Circuit’s territory, and thus Morison is not binding there.

Judge Colleen Kollar-Kotelly, who served as the presiding judge of the rubber-stamp Foreign Intelligence Surveillance Court from 2002 to 2009, ruled against Kim in an opinion that rejected Morison entirely, partly because she “was unable to locate a single case outside the Fourth Circuit employing this standard.”

“In cases like this which involve the alleged unauthorized disclosure of classified information, the Morison approach invites (if not requires) the jury to second guess the classification of the information,” she wrote, stating her opinion that this would lead to the “absurdity” of the proceedings becoming “a trial of the classifying party.”

Kim is accused of giving Fox News reporter James Rosen secret information—that North Korea was planning to test a nuclear bomb. Although the government must still prove that Kim “reasonably believed” that the information “could be used to the injury of the United States or to the advantage of a foreign nation,” it need not show that the data actually could potentially damage national security or benefit an adversary. That outcome, the defense argued in vain, “convert[s] the Espionage Act into a simple Government Secrets Act which Congress has refused to enact.”

-Matt Bewig

To Learn More:

Court Eases Prosecutors’ Burden of Proof in Leak Cases (by Steven Aftergood, Secrecy News)

Case Summary (Stephen Kim Legal Defense Trust)

Court Opinion (pdf) (redacted and partially unreadable)

Obama Files More Anti-Leaker Cases in 2 Years than all Presidents in Last 40 Years (by Noel Brinkerhoff, AllGov)