When a controversial ruling by U.S. Judge Colleen Kollar-Kotelly became public last week, many whistleblower advocacy groups expressed concern that it would alter the modern interpretation of the 1917 Espionage Act, essentially lowering the bar for government prosecutors who are trying to prove a leak has damaged U.S. national security.
Kollar-Kotelly’s ruling came in the case of Stephen Jin-Woo Kim, a senior analyst at the Office of National Security at Lawrence Livermore National Laboratory who disclosed national defense secrets to Fox News reporter James Rosen. The judge ruled that the prosecution does not need to prove that the information Kim leaked could damage U.S. national security or benefit a foreign power.
Government transparency advocates and whistleblower groups are concerned that under this revised definition of the Espionage Act, a source who gives classified information to a journalist may be charged with treason — even if the information doesn’t harm U.S. interests.
One case that has been closely watched in the past few years was that of Pfc. Bradley Manning, who shared hundreds of thousands of documents with WikiLeaks. The Army private was charged with several crimes, the most serious of which was aiding the enemy under the Espionage Act.
As Mint Press News previously reported, prosecutors said that because the classified military information Manning released was on the Internet and terrorists had access to it, he should be charged with aiding the enemy. The defense argued that Manning released the information in order to spark a discussion about why the U.S. was in Iraq and Afghanistan.
On Tuesday, Manning was found not guilty of aiding the enemy.
Kollar-Kotelly’s ruling goes against a 1985 court decision in which Samuel L. Morison, an intelligence officer, was convicted of unauthorized disclosure of satellite imagery to Jane’s Defence Weekly. The judge said she disagreed with the precedent the ruling set.
“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,” Kollar-Kotelly wrote.
In response, the defense wrote, “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.”
Kim was indicted in 2010 on two counts of disclosing national defense secrets to Rosen and one count of lying to the FBI. The case was part of the Obama administration’s widespread crackdown on government officials who leak information.
Federal prosecutors have long argued that Kim harmed national security by sharing the information, while his defense team has argued that the information was well known around Washington.
In 2009, Kim allegedly told Rosen that North Korea had plans to test a nuclear warhead, which Rosen publicized in a news report. For running the story, prosecutors considered charging Rosen as a co-conspirator.
Kim’s attorney, Abbe Lowell, has argued that Kim should not be held responsible for the leak because other national security officials could have shared the information with Rosen. Court documents provided by the defense show that at least three other government officials contacted Fox News.
Those sources include Denis McDonough, former deputy national security adviser, John Brennan, current CIA director and former counterterrorism adviser, and Mark Lippert, assistant secretary of defense and former deputy national security adviser for operations.
Kim’s case is expected to go to trial in late 2013 or early 2014.