Secrecy News

Court Eases Prosecutors’ Burden of Proof in Leak Cases

In a new interpretation of the Espionage Act, a federal judge made it easier for prosecutors in leak cases to meet their burden of proof, while reducing protections for accused leakers.

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.  (In that case, Samuel L. Morison was convicted of unauthorized disclosure of classified intelligence satellite photographs, which he provided to Jane’s Defence Weekly. He was later pardoned by President Clinton.)

“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 in a May 30 opinion. The opinion was redacted and unsealed (in partially illegible form) last week.

The prosecution must still show that the defendant “reasonably believed” that the information “could be used to the injury of the United States or to the advantage of a foreign nation” and that the defendant “willfully” communicated it to an unauthorized person.  But it would no longer be necessary for prosecutors to demonstrate that the information itself could potentially damage national security or benefit an adversary.

The new ruling was a boon to prosecutors and a blow to the defense in the Kim case and perhaps other leak trials to come.

The Kim defense had argued that the requirement to show that the leaked information could cause at least potential damage was essential to a proper understanding of the Espionage Act statute.  Without it, defense attorneys argued, the Espionage Act would become something like an Official Secrets Act, enabling the government to punish disclosure of anything that was designated classified, even if it was improperly classified.  They cited a concurring opinion in the Morison case stating that its interpretation of the law was necessary “to avoid converting the Espionage Act into the simple Government Secrets Act which Congress has refused to enact.”

In a subsequent reply, the defense added that “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’ .”

“The Court should decline the government’s invitation to reject the leading Espionage Act cases of the past quarter century,” the defense urged.

But prosecutors insisted successfully that, contrary to the Morison court and other Fourth Circuit cases, there is no requirement in the statute to show that disclosure could cause harm. “By its terms, Section 793(d) [of the Espionage Act] does not require the United States to prove any harm, whether potential or not….”

In her ruling, Judge Kollar-Kotelly accepted the prosecution view.

“In cases like this which involve the alleged unauthorized disclosure of classified information, the Morison approach invites (if not requires) the jury to second guess the classification of the information,” she wrote in the newly disclosed May 30 opinion.

Although a review by the jury of the information’s classification might seem like a wholesome and necessary check on overclassification, Judge Kollar-Kotelly said it would lead to an “absurdity” — “The trial of the individual charged with unauthorized disclosure would be converted into a trial of the classifying party,” as she put it, citing an earlier precedent.

Moreover, “the Court was unable to locate a single case outside the Fourth Circuit employing this standard,” she wrote. The Morison case was tried in the Fourth Circuit, as was the AIPAC case, the Kiriakou case, and the still-pending Jeffrey Sterling case.

By imposing such a requirement, the Kim prosecutors said, the Fourth Circuit had arguably offered “more protection to defendants than required by [the Supreme Court].”

So for defendants who are accused of leaking classified information, it seems that the Fourth Circuit would be the most advantageous location in which to be tried.  Stephen Kim is on trial in the DC Circuit.

Several other rulings (and underlying pleadings) in the Kim case were unsealed last week, and they were discussed in the Washington Post (“Attorney for accused leaker says other U.S. officials may be responsible,” July 25) and Legal Times (“In Leak Case, Prosecutors Allowed to Keep Information Secret,” July 25).

6 thoughts on “Court Eases Prosecutors’ Burden of Proof in Leak Cases

  1. Steve, I have not seen this reported by the national press.

    Judge Colleen Kollar-Kotelly’s ruling is from May 30, and was only unsealed last week. She clearly overstepped her bounds. It should not be constitutional for a court to override in secret the opinion of another court which had been expressed publicly. This makes a mockery of the whole judicial process.

  2. Point of law. The UK Official Secrets Act 1989 includes a substantial harm test – that is, the unauthorised disclosure must have caused damage. The only persons for whom an absolute prohibition on disclosure exists are employees of the Intelligence and Security Services. Seems the UK is ahead of the US on freedom of speech. Never thought I’d live to see the day.

  3. Like most members of the modern legal cartel, Judge K-K has a process fetish. Because a government process exists for classifying information, that process is sacrosanct and may not be short-circuited or second-guessed. A government employee who believes material has been improperly classified, perhaps to hide a crime, malfeasance or mere incompetence, must appeal that via internal government channels because that too is a process in place. Further, that process is assumed to be fair, free from retaliation, and always arrives at a fair and just outcome. Because this is so, disclosure to unauthorized parties is unnecessary and causes grave harm to the government processes in place.

    In short, Judge K-K lives in a complete fantasy world. Unfortunately, we let her. In a sane world, she would be impeached, disbarred, and kept far, far away from any position of responsibility.

  4. Mr. Taylor’s comment is interesting in that he accuses the judge in this case of having a “process fetish.” That is the first time I have ever heard “the rule of law” so described. He goes on to seemingly excuse any government employee who leaks classified material (i.e., violates his/her oath as given when granted clearance) if he or she “believes material has been improperly classified.” This would require the reader to subscribe to the notion that it’s okay for ANY government employee, for any personal reason, to release any classified material, to any audience, at any time, based solely on the employee’s belief that it’s the right thing to do. That is called “falling on one’s sword,” and is done with full knowledge that the penalty may be severe, as well it should be. To do so and expect to escape the consequences is living in a “fantasy world.” Had some idiot divulged my whereabouts or mission because he “believed” it should be public knowledge, I could have been killed many times over, and much valuable work would not have been accomplished – plus Mrs. B would have been really p-o’ed.

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