Court Denies Motions to Dismiss Kim Leak Case

08.25.11 | 2 min read | Text by Steven Aftergood

A federal court yesterday rejected (pdf) multiple defense motions to dismiss Espionage Act charges against former State Department contractor Stephen Kim, who is accused of leaking classified information to a Fox News reporter.

Mr. Kim’s defense team had marshalled a series of seemingly ingenious arguments for dismissal.  The use of the Espionage Act to punish “political crimes” such as leaking is prohibited by the Constitution’s Treason Clause, one defense motion said.  Further, the language of the statute appears to prohibit unauthorized disclosure of tangible items, such as documents, not “information” which cannot be surrendered on demand.  Also, the defense argued, the Espionage Act is impermissibly vague and ambiguous with respect to oral disclosures.  Finally, prohibitions against leaks are enforced and prosecuted rarely and unpredictably, rendering those rare cases intrinsically unfair.

None of these arguments gained any traction with the court, though the defense discussion of the Treason Clause was deemed “compelling and eloquent.” Judge Colleen Kollar-Kotelly dismissed all of the defendant’s objections in a memorandum opinion on August 24.

“To the extent that Defendant intends to argue that the information he is charged with leaking was previously disclosed or was not properly classified, he may do so as part of his defense,” Judge Kollar-Kotelly wrote, “but such arguments do not render the statute vague” or otherwise invalid.

The new ruling probably does not come as a big surprise to any of the parties.  The surprise would have been if the court had overturned or reinterpreted the Espionage Act.  Instead, the ruling leaves the existing legal apparatus in place, and clears the path for trial.

The Kim case is one of five Espionage Act prosecutions undertaken by the Obama Administration due to alleged unauthorized disclosures of classified information.  A New York Times editorial today scolded the Administration for what it called the “misguided” use of the Act.

“With no allegation of a motive or intended harm to the US, the government’s use of Stephen as an example to deter the leaking of information is inappropriate,” according to a statement on Mr. Kim’s own web site.

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