Secrecy News

Stephen Kim Pleads Guilty to Leak Charge

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.

2 thoughts on “Stephen Kim Pleads Guilty to Leak Charge

  1. I disagree with your assessment that Fox was careless. Fox is unsavory, that’s given, and it would have been better if they had not used the hot phrase, but the sources were here not identified by name, so actually nothing was revealed but the obvious (as Obama noted in his NSA speech): the U.S. government has agents in North Korea trying to figure out what its government is doing with respect to its nuclear capability. Surely you’re not saying that the North Korean government does not know this. This additional phrase should not make the difference between Mr. Kim’s guilt and innocence, particularly under circumstances in which the government was obviously toying with the idea of using this case and the Espionage Act to prosecute a journalist, and particularly if the facts of what happened are as Kim’s lawyer described them. He clearly was not engaged in espionage, though one may be certain that the penalties he faced under the were sufficiently frightening to take the plea.

    This case is an example of how malleable and convenient the “sources and methods” phrase is in favor of secrecy. One should not be so ready to accept that justification without a more adequate definition, because of the wide discretion that it gives the government in leak prosecutions, and because it is not necessarily obvious that sources or methods, even if adequately defined, are entitled to protection no matter what they do, or what they are. Recall that Phil Agee, although he later repudiated the technique, went out of his way to expose agents, and to tell other countries how to do that for themselves, because the CIA was unquestionably corruptly intervening the internal affairs of other countries, which are supposedly sovereign states.

    One need not like what Agee did to note that this aspect of the “sources and methods” issue unfortunately has been cowed by the Intelligence Identities Protection Act (or “Agee’s Law”) and a general sycophantic glorification of the intelligence complex, especially after 9/11.

    Nonetheless, the burden of proof here should be on the government claiming a secret’s legitimacy, with specific support, not just general assertions, and judges must stop abdicating their authority with effete baloney that they are unqualified to hold forth on national security secrecy. Otherwise, we’re going nowhere toward a more democratic secrecy system.

    Implicitly, you have also set off Mr. Kim’s actions against those of Edward Snowden, who justifiably has decided that he cannot get a fair trial in the U.S. and so will not return until such time as the real possibility of a fair trial exists. One may admire Mr. Kim’s nobility without excluding that of Snowden. The Crito is a very problematic dialog to invoke to the support the proposition that one should always face the music, or that not facing the music can never ever be noble. In that dialogue, Socrates was openly contemptuous of the Athenians, Athenian democracy, even his own kids, as he and Plato ever were, and he was about to die anyway. He said to Crito, “it would be unseemly” for me to escape. He was more concerned about appearances, and only incidentally, if that, about nobility. Why should anyone respect that?

    This martyr complex, which has come down to us through Plato and Christianity, is long overdue due for a rethinking. If everyone the government accused just gave themselves up to be crucified no matter how corrupt the legal system, there would be no revolution, when revolution is obviously necessary.

  2. I share Ellen Sand’s questioning your admiration for Plato’s arguments in the “Crito.” Plato supported the triumph of the state over conscience. The philosopher, in “The Republic” and other dialogs, defends the totalitarian government of the polis (and hatred of democracy.) The style is typical of his technique of ridiculing his opponents, e.g. Thrasymachus in “The Republic” as foolish for suggesting that power and justice are related, and Crito for his humane objections which are portrayed as dishonorable

    Socrates chose to allow a man to be killed as the state demanded rather than disobey a law he thought wrong. It’s not ennobling that it was his own life. Sand’s is correct and brave.

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