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Guilty Plea In Fox News Leak Case Shows Why Espionage Act Prosecutions Are Inherently Unfair to Sources

By       Message Trevor Timm     Permalink
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Former State Department official Stephen Kim announced today he will plead guilty to leaking classified information to Fox News journalist James Rosen and will serve 13 months in jail.

The case sparked controversy last year when it was revealed the Justice Department named Rosen a "co-conspirator" in court documents for essentially doing his job as a journalist. But a largely ignored ruling in Kim's case may have far broader impact on how sources interact with journalists in the future.

In Espionage Act cases involving sources or whistleblowers, defendants naturally want to explain to a judge or jury that the information they may have given to journalists (and the American public) didn't harm US national security. The bar for this was already too low; in the past, the government didn't have to show actual harm, but at least they had to show the information could potentially  harm national security. The judge in Kim's case ruled the government didn't even need to do that.

As secrecy expert Steven Aftergood reported at the time:

Judge Colleen Kollar-Kotelly ruled that the prosecution in the pending case of former State Department contractor Stephen Kim need not show that the information he allegedly leaked could damage U.S. national security or benefit a foreign power, even potentially.  Her opinion was a departure from a 30-year-old ruling in the case of U.S. v. Morison, which held that the government must show that the leak was potentially damaging to the U.S. or beneficial to an adversary. (emphasis ours)

This means that it doesn't matter if the information leaked by Kim was properly classified, or if it should have been classified at all. Kim could not argue the information he gave to Rosen may have been innocuous. The ruling also gives the government carte blanche power to classify whatever it wants--including waste, abuse, and crimes--and keep it secret under the threat of prosecution of anyone who could potentially reveal it. As the defense argued at the time, this ruling turns the Espionage Act into an Official Secrets Act, which Congress has continually refused to enact over the last century.

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Trevor Timm is a co-founder and the executive director of the Freedom of the Press Foundation. He is a writer, activist, and lawyer who specializes in free speech and government transparency issues. He has contributed to  The (more...)

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