Former State Department contractor Stephen Kim pleaded guilty on Friday to one count of unauthorized disclosure of national defense information to a Fox News reporter. Following a sentencing hearing in April, he is expected to serve a 13 month term in prison. (WashPost, NYT, Politico).
The plea was an abrupt departure from previous defense strategy. As recently as last month, Mr. Kim’s attorneys had argued that it was “the defense’s theory that the alleged disclosure to Fox News emanated from senior officials at the National Security Council or the White House, and not from a lower level employee like Mr. Kim” (Defendant’s Seventh Motion to Compel, January 17, 2014, page 5).
But in a February 3 Statement of Offense signed by the defendant, Mr. Kim acknowledged that he had “orally disclosed to Reporter A [James Rosen of Fox News] TS//SCI national defense information… specifically about the military capabilities and preparedness of North Korea.”
The two positions are not necessarily contradictory. “Stephen did not reveal any intelligence ‘sources’ or ‘methods’,” said his defense attorney Abbe Lowell in a February 7 statement. “He did not provide any documents or electronic data to anyone. He did not pay for or receive payment for his actions.”
Moreover, Mr. Lowell said, “news reports from the same day demonstrate that Stephen 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 case against Mr. Kim stemmed from a June 11, 2009 Fox News story (“North Korea Intends to Match U.N. Resolution With New Nuclear Test” by James Rosen).
That story stated that “Pyongyang’s next nuclear detonation is but one of four planned actions the Central Intelligence Agency has learned, through sources inside North Korea, that the regime of Kim Jong-Il intends to take….” The brief but startling reference to “sources inside North Korea” appeared to refer to CIA human intelligence sources within the DPRK, potentially placing any such sources at heightened risk.
If that short phrase had not been published, it is doubtful that the Fox News story would have triggered a full-fledged leak investigation, or that Mr. Kim would have been prosecuted as a result.
In other words, because Fox News reported and edited the story in such a questionable way, it deserves a share of the responsibility both for any compromise of U.S. intelligence capabilities that may have occurred, and for Mr. Kim’s unhappy fate. (As noted above, Mr. Kim’s defense denies that he revealed any intelligence sources and methods.)
Unfortunately, this kind of carelessness on the part of media organizations is not all that unusual, even among publications that are not avowedly antagonistic or “adversarial” towards U.S. intelligence.
“News organizations publishing leaked National Security Agency documents have inadvertently disclosed the names of at least six intelligence workers and other government secrets they never intended to give away,” according to the Associated Press (“Media sometimes try, fail to keep NSA’s secrets” by Raphael Satter, AP, February 8).
The 13 month prison sentence that Stephen Kim is expected to receive may be the least of the punishments he will have suffered. Merely to be accused and prosecuted under the Espionage Act can be practically unbearable.
Even before a final judgment has been rendered, his sister wrote, “He endured what would break a normal person, abandoned by his significant other, deserted by his ‘friends’, shunned by his former colleagues, [and] ostracized by society.”
But setting aside questions of fairness, proportionality and selective prosecution, there is a certain dignity in submitting to the judicial process and accepting the consequences of one’s actions.
“Stephen decided to take responsibility for his actions and move forward with his life,” wrote Abbe Lowell.
As we know, not everyone is prepared to do that. But it is not a new predicament.
In ancient Athens, friends of Socrates urged him to flee the country to escape an unjust punishment.
“For men will love you in other places to which you may go, and not in Athens only,” said Crito in Plato’s dialogue of that name. “There are friends of mine in Thessaly, if you like to go to them, who will value and protect you, and no Thessalian will give you any trouble.”
“Nor can I think that you are justified, Socrates, in betraying your own life when you might be saved; this is playing into the hands of your enemies and destroyers,” Crito added.
Upon consideration, however, Socrates refused to become a fugitive under those circumstances. He said he had “chosen the better and nobler part, instead of playing truant and running away, of enduring any punishment which the state inflicts” (Phaedo).
“The Athenians have thought fit to condemn me, and accordingly I have thought it better and more right to remain here and undergo my sentence,” Socrates said.