US judge rules that Espionage Act does not require proof of any harm done

In another potential setback for whistleblowers, a US judge has made a ruling that essentially lowers the requirements for government prosecutors to prove damage to national security committed by alleged leakers.

The case concerns Stephen Jin-Woo Kim, who in 2010 was indicted
on two counts of disclosing national defense secrets to Fox News
reporter James Rosen the year prior. Kim’s information was based
on an intelligence report which was available to a limited number
of government employees. 

Judge Colleen Kollar-Kotelly ruled that the prosecution does not
need to show that the information Kim allegedly leaked could
damage US national security or benefit a foreign power, even
potentially. 

Her ruling went against the 1985 v. Morison case, in which Samuel
L. Morison was convicted of unauthorized disclosure of satellite
imagery to Jane’s Defence Weekly. Kollar-Kotelly said that she
disagreed with the precedent it set, which required prosecution
to prove harm to national security. 

“The Court declines to adopt the Morison court’s construction
of information relating to the ‘national defense’ insofar as it
requires the government to show that disclosure of the
information would be potentially damaging to the United States or
useful to an enemy of the United States,”
Judge
Kollar-Kotelly wrote.

That decision could well modify interpretation of the 1917
Espionage Act for future whistleblower cases. Kim’s legal defense
says that without the need to prove harm done to national
security, the Espionage Act is essentially converted into a
“Government Secrets Act.”

“The requirement that disclosure of the information be
‘potentially damaging’ is ‘implicit in the purpose of the statute
and assures that the government cannot abuse the statute by
penalizing citizens for discussing information the government has
no compelling reason to keep confidential,”
wrote the
defense.

In her ruling, the judge accepts the prosecution’s argument that
interpretation of the Espionage Act does not necessitate that the
government prove its case, contrary to 1985 v. Morison and
subsequent cases since then.

“By its terms, Section 793(d) [of the Espionage Act] does not
require the United States to prove any harm, whether potential or
not…”
wrote the prosecution.

Kim’s story has become one of the most well known instances of an
Obama administration clampdown on government information leaks,
and attracted national attention following disclosure of a
warrant for Rosen’s personal emails and the potential to
prosecute the reporter as a co-conspirator. That warrant came to
light on the heels of evidence showing far wider surveillance of
phone records pertaining to the Associated Press.

Federal prosecutors have argued that Kim’s leak falls under harm
to national defense, while Kim and his defense team have
countered that the information was well known within Washington,
and that the Justice Department is exceeding the spirit and
definition of espionage laws.

Kim allegedly told Rosen in 2009 that North Korea was planning to
test a nuclear warhead – information which then became key for
Rosen’s subsequent article entitled “North Korea Intends to Match
UN Resolution with New Nuclear Test.”

Last week, Kim’s defense attorney, Abbe Lowell, argued that other
national security officials could have communicated with Fox News
reporter James Rosen prior to him publishing his story on North
Korea’s nuclear program.

Court documents from Kim’s trial included details of contacts
made by Fox News to three additional government sources, all who
denied any involvement in the leak to Fox News. The sources
included former deputy national security adviser Denis McDonough,
former counterterrorism adviser John Brennan — who now serves as
CIA director – and former deputy national security adviser for
operations, Mark Lippert – now an assistant secretary of defense.
 

The case brought against Kim is unlikely to go to trial before
early 2014, according to The Washington Post.

Republished from: RT