Stephen Kim Leak Defense Cites Overclassification

“The government routinely overclassifies information,” so the mere fact that something is classified is not sufficient to establish that its unauthorized disclosure is prohibited by law, according to a defense motion (pdf) that was filed last week in the case of former State Department contractor Stephen Kim.  Mr. Kim was accused under the Espionage Act of leaking classified information to a news reporter, reportedly concerning North Korth’s nuclear test program.

“There is no better evidence of this gross overclassification than this very case,” the January 31 defense motion said.  “Even though the news media has reported extensively on this case, including reporting on the name of the ‘foreign country’ it believes is at issue…, the prosecution claims that the name of that ‘foreign country’ is classified.”

“Because the system of classification is an imperfect one, the court cannot simply interpret [the espionage statutes] to provide adequate constitutional notice any time the matter at hand pertains to a government employee alleged to have leaked classified information,” the defense said in its motion to dismiss the charges against Mr. Kim.

Defense attorneys also argued that “leaking is widespread and has become an essential tool that is frequently employed by officials at every level of government.”  Yet prosecutions for leaking are comparatively rare, thereby resulting in “arbitrary and discriminatory enforcement.”  (See related coverage from Josh Gerstein and Marcy Wheeler.)

Perhaps the most interesting and original legal argument presented by the defense is that the use of the Espionage Act to punish unauthorized disclosures of classified information is an improper attempt to expand the definition of treason, whose scope is strictly limited by the Constitution.

The defense explained in a separate January 31 motion (pdf) that the framers of the Constitution, who were themselves “traitors” against the British, deliberately chose to limit the definition of political crimes against the nation to “levying war against [the United States], or… adhering to their Enemies, giving them Aid and Comfort.”  This definition of treason excluded other types of political actions against the government.  In particular, the defense argued, it meant that acts of speech against the government could not be punished as treason.

“Today we typically look to the First Amendment to protect the freedom of speech, but the Framers of the original Constitution expected the Treason Clause to do some heavy lifting on that front, particularly because the First Amendment… was not added to the Constitution until later.”

What is happening now, the defense said, is that “the government has taken conduct it alleges to have injured the state [namely leaking] and squeezed it into a successor statute [the Espionage Act] that punishes treason under a different name, but without providing Mr. Kim with the substantive and procedural guarantees that he is entitled to under the Constitution” in a case of treason, such as a requirement for the government to produce two witnesses to the alleged crime.

Mr. Kim is represented by Abbe D. Lowell and his colleagues at McDermott Will & Emery.  Government responses to the defense motions are due March 2.