New and updated reports from the Congressional Research Service that Congress has withheld from online public distribution include the following.

Reform of the Foreign Intelligence Surveillance Court (FISC): Selection of Judges, May 5, 2014

Unauthorized Aliens in the United States: Policy Discussion, May 8, 2014

Apprehensions of Unauthorized Migrants along the Southwest Border: Fact Sheet, May 2, 2014

FEMA’s Disaster Relief Fund: Overview and Selected Issues, May 7, 2014

Central America Regional Security Initiative: Background and Policy Issues for Congress, May 6, 2014

Libya: Transition and U.S. Policy, May 8, 2014

Ukraine: Current Issues and U.S. Policy, May 8, 2014

U.S. Special Operations Forces (SOF): Background and Issues for Congress, May 8, 2014

Jordan: Background and U.S. Relations, May 8, 2014

Armed Conflict in Syria: Overview and U.S. Response, May 5, 2014

Federal Holidays: Evolution and Current Practices, May 9, 2014

Status of a Member of the House Who Has Been Indicted for or Convicted of a Felony, May 8, 2014

 

Government officials disclose classified information to the press with some frequency, but only rarely are they prosecuted for it.

Such selective prosecution renders the law unfair, said attorney Abbe Lowell at the April 2 sentencing hearing of his client, Stephen Kim, who pled guilty to an unauthorized disclosure of classified information.

Mr. Kim, a former State Department Korea specialist who could have been sentenced to 10 years in prison and a fine of $250,000, received a 13 month jail sentence. The transcript of the April 2 sentencing hearing is now available here.

The fact that senior officials go unpunished for comparable or greater offenses “doesn’t mean that Mr. Kim didn’t violate the law,” said Mr. Lowell. But “it means that our system is out of balance.”

The “antiquated” Espionage Act that is used to prosecute leaks is “one very blunt tool,” Mr. Lowell said.

Still, “There’s some good that can come from this case,” Mr. Lowell suggested. He noted that it had already led the Department of Justice to revise its policy and practice on investigating or charging members of the news media.

In other leak-related news, the Obama Administration argued that there is no privilege that would excuse New York Times reporter James Risen from testifying in court as to the identity of the source who provided him with classified information. In an April 25 brief, the Administration asked the U.S. Supreme Court to reject Mr. Risen’s petition to review the matter.

Meanwhile, former Navy linguist James Hitselberger, who had been charged under the Espionage Act with unlawful retention of national defense information (18 USC 793e), pleaded guilty on April 25 to a lesser offense of unauthorized retention of classified information (18 USC 1924), which carries a sentence of up to one year in prison. He is to be sentenced on July 17. (More from Josh Gerstein in Politico.)

 

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.

It was announced today that Chief Justice Roberts has appointed Judge James E. Boasberg of the DC District Court to the Foreign Intelligence Surveillance Court for a seven year term beginning in May 2014. He will replace the outgoing Presiding Judge Reggie Walton, whose term expires in May. The Chief Justice also appointed Judge Richard C. Tallman of the Ninth Circuit Court of Appeals to the Foreign Intelligence Surveillance Court of Review.

The current membership of the FISA Courts can be found here.

Background information on the Foreign Intelligence Surveillance Court and potential changes to its operations were discussed in a new report from the Congressional Research Service. See Reform of the Foreign Intelligence Surveillance Courts: Procedural and Operational Changes, January 16, 2014.

Relatedly from CRS, see Introducing a Public Advocate into the Foreign Intelligence Surveillance Act’s Courts: Select Legal Issues, October 25, 2013

Other new and updated CRS reports that Congress has withheld from online public distribution include the following.

The 2014 Sochi Winter Olympics: Security and Human Rights Issues, January 26, 2014

The National Defense Authorization Act for FY2012 and Beyond: Detainee Matters, January 27, 2014

Cuba: U.S. Policy and Issues for the 113th Congress, January 29, 2014

Cuba: U.S. Restrictions on Travel and Remittances, February 4, 2014

Mexico: Background and U.S. Relations, January 30, 2014

Status of Mexican Trucks in the United States: Frequently Asked Questions, January 3, 2014

The Freedom of Information Act (FOIA): Background, Legislation, and Policy Issues, January 23, 2014

For more than three years, author Anthony Shaffer has been challenging the government’s contention that hundreds of passages in his Afghanistan memoir “Operation Dark Heart” are classified and should not be publicly disclosed. Now a judge has ordered the full text of the book to be delivered to her in “complete and unredacted” form.

DC District Judge Rosemary M. Collyer told the Defense Intelligence Agency and its co-defendants DOD and CIA to file under seal “a complete and unredacted copy of the published book, Operation Dark Heart: Spycraft and Special Ops on the Frontline of Afghanistan and the Path to Victory” no later than January 24.

“The 233 passages that remain classified should be unredacted and highlighted in yellow,” she wrote in a January 17 order. “The passages that were initially redacted but subsequently declassified should be highlighted in blue. If the unredacted copy of the book contains both secret and top secret information, Defendant must file a secret and top secret version of the book. That is, one copy should contain all classified information unredacted and highlighted in yellow. The other copy should contain only the secret information unredacted and highlighted and the top secret information redacted.”

The clear implication is that Judge Collyer intends to perform her own assessment of the validity of the government’s classification claims rather than simply rely on the affidavits of government officials attesting to their validity.

Though sensible and straightforward, this is also an unusual step. Most often, courts defer to the presumed expertise of executive branch classification officials, and decline to “second guess” them. This case is now shaping up to be an exception to that rule.

The dispute over “Operation Dark Heart” is complicated by the fact that review copies of the original, uncensored text have circulated in the public domain and portions of the text have been posted online.