Peter Maass, Destroyed by the Espionage Act. Stephen Kim spoke to a reporter. Now he’s in jail. This is his story. The Intercept, 18 February 2015. “On the morning of June 11, 2009, James Rosen stepped inside the State Department, scanned his building badge and made his way to the Fox News office in the busy press room on the second floor. It was going to be a hectic day. Like other reporters working the phones that morning, Rosen was looking for fresh news about the latest crisis with North Korea.”
Two weeks earlier, North Korea had conducted a nuclear detonation that showed the rest of the world it possessed a functioning bomb. The United Nations was on the verge of a formal condemnation, but no one at the U.N. or inside the U.S. government knew how North Korea’s unpredictable regime would respond and whether things might escalate toward war.
Rosen called Stephen Kim, a State Department expert on rogue nations and weapons of mass destruction. Kim, a U.S. citizen who was born in South Korea, spoke fluent Korean and had worked at one of America’s nuclear-weapons labs. He probably knew more about what was going on in Pyongyang than almost anyone else in the building.
The call, according to metadata collected by the FBI, lasted just half a minute, but soon afterward Kim called Rosen and they talked for nearly a dozen minutes. After that conversation, they left the building at roughly the same time, then spoke once more on the phone after they both returned.
A classified report on North Korea had just begun circulating, and Kim was among the restricted number of officials with clearance to read it. He logged onto a secure computer, called up the report at 11:27 a.m., and phoned Rosen 10 minutes later. A few minutes past noon, he left the building again, and a minute later Rosen followed. The destruction of Kim’s life would center on the question of what the two men discussed during that brief encounter outside the State Department.
Kim returned to the building at 12:26 p.m., but Rosen lingered outside to make calls to colleagues at Fox News — to lines for the network’s Washington bureau chief, as well as a vice president and assignment editor. Back inside, Rosen called the bureau chief’s line again, and then an official at the National Security Council. Around 3:00 in the afternoon, with typos that suggest it was written in haste, Rosen posted a story on the Fox News website under the headline, “North Korea Intends to Match U.N. Resolution With New Nuclear Test.” It said the U.S. government, in its latest intelligence assessment, believed U.N. sanctions would trigger retaliatory actions from North Korea, including another detonation.
As news goes, Rosen’s story wasn’t, in fact, much of a scoop. It merely confirmed the conventional wisdom of the day. According to court documents, one State Department official described the intelligence assessment as “a nothing burger,” while another official said Rosen’s story had disclosed “nothing extraordinary.” But the article had a seismic impact in another way. It occurred just as the Obama administration was intensifying its effort to crack down on leakers and whistleblowers; the FBI soon launched an investigation. Because Rosen used phones that were easy to trace and twice left the building at the same time as Kim, it was simple for the FBI to zero in on whom he talked with that day. Before long, Kim, who had worked as a civil servant since 2000, was being threatened with decades in prison for betraying his country.
Five years later, on April 2, 2014, I sat in a half-empty courtroom in Washington, D.C., and watched as Kim pleaded guilty to one count of violating the Espionage Act. He was the latest victim in an unprecedented crackdown on leaks; so far, the Obama administration has prosecuted more than twice as many leak cases under the Espionage Act as all previous administrations combined. Kim was dressed in a dark suit, white shirt and blue tie. His manner that day revealed nothing, at least on the surface, of how his life had unravelled in the past five years — the broken marriage, the young son who lived far away, the life savings that were now depleted, and the profound struggles with depression and thoughts of suicide….
Around [June 2009], Dennis Blair, the president’s director of national intelligence, reassessed the government’s approach toward leaks. Blair asked the Justice Department for a list of officials who had been prosecuted for leaking. He was surprised by the result — of 153 referrals to the Justice Department in the previous four years, not a single person had been indicted. That scorecard, Blair later toldThe New York Times, “was pretty shocking to all of us.” A decision was made to start going after indictments. “My background is in the Navy, and it is good to hang an admiral once in a while as an example to the others,” Blair told The Times. “We were hoping to get somebody and make people realize that there are consequences to this and it needed to stop.”…
After the search of his McLean home [March 2010], prosecutors offered Kim a quick deal in which he would accept a sentence of about seven years. If he refused, he could face a 30-year sentence at trial. For a defendant facing indictment, the decision to fight is not just moral or legal. It is also largely financial. Private attorneys are expensive, especially if a case is complicated and long, and as with this one, the government is prepared to invest a lot of resources in it. When Kim was indicted, the opposing bench included three prosecutors from the Department of Justice’s National Security Division.
Kim turned to Abbe Lowell, who had recently defended a lobbyist against an Espionage Act charge and who had a string of other high-profile cases. Lowell had argued on behalf of President Clinton during his impeachment hearing in the House of Representatives, and had defended John Edwards in his corruption trial, Gary Condit in the Chandra Levy case, and even Sean Combs in a voting rights case.
Even when sitting in the quiet of his office, Lowell gives the impression of a taut spring that may uncoil at any moment. He understood that Kim’s case could go on for years and that Kim would not be able to pay for it, but he took it on because he believed it involved a decent American fighting an indecent crackdown. It was, he said, a case of “a person who needed a lawyer and an issue that needed a defense.”…
“For many years, we had achieved what seemed like a state of equilibrium, in which a certain type of leaking was understood and tolerated,” said Steven Aftergood, who directs the Project on Government Secrecy at the Federation of American Scientists. “I date the collapse of that equilibrium to WikiLeaks [2010], because it was such a departure in magnitude and consequence from the norm. It triggered a response of unusual severity.”
Kim was among the first victims, and his prosecution revealed that the technologies that enable large-scale leaks are also the government’s most formidable weapon for striking back. With a few clicks by a systems administrator, or a subpoena to a phone company or web firm, the government can figure out who talks to whom and when, who emails whom and what they write, or who enters and leaves a building and when they do it. When there is metadata, there is no need for informers or tape recordings or confessions.
The FBI was able to acquire Kim’s phone records, Rosen’s phone records, their emails, security badge records for the State Department building, even records of the precise moments Kim accessed the North Korea intelligence report on his office computer. The assemblage of electronic data showed when and where and for how long Kim and Rosen talked, though not what they talked about. This attests to the power of metadata — to indict a suspect under the Espionage Act, the government doesn’t need to prove what he said in a particular conversation on a particular day, just that he talked or met or left the building at a particular time. Kim’s lawyer highlighted this in a brief to the court: “The government has not produced any email, text message, or recorded conversation documenting the contents of any communication [on June 11] between Mr. Kim and Mr. Rosen.”…
The calculus on taking a plea often has little to do with guilt or innocence. One consideration is the judge. Kim was not lucky on this — the judge he had drawn, Colleen Kollar-Kotelly, had served for seven years as the head of the secretive Foreign Intelligence Surveillance Court, which in her tenure had rarely denied or limited government requests for surveillance by the NSA….
Lowell’s legal strategy had many prongs, the most important of which was simple: Was it possible that other officials had talked to Rosen about the classified information in the story? He made a series of discovery requests to find out how many officials had access to the report (the number turned out to be at least 168) and whether any of them spoke with Rosen. Just as the FBI had used email and phone records to connect Kim to Rosen, Lowell asked for the phone and email records of the 167 other officials….
“There were a number of other people in the government that were talking that day about this subject matter,” Lowell told me. “The reason (Kim) got picked out of what I call the lineup is because once the leak occurred and the intelligence community decided to say this was a terrible, outrageous thing, and they demanded that somebody be found, it was possible to find Stephen and it wasn’t as easy to find others. The government could have found others, but having already vested their target to be Stephen, they never bothered.”…
Kim had the particular misfortune of being a mid-level official. Senior officials tend to have powerful allies who can push back against the Department of Justice. This doesn’t always protect them — Scooter Libby, who was Vice President Cheney’s chief of staff, was convicted in 2007 of obstructing an investigation into the leak of a CIA agent’s name (though his sentence was later commuted by President Bush). But usually it helps. Top officials who have not been prosecuted for leaking include Leon Panetta, the former CIA director who, according to a report by the Defense Department’s inspector general, leaked the name of the SEAL commando who led the raid that killed Osama bin Laden. Another example is Gen. James Cartwright, who reportedly has been investigated as the source for a Times story on Stuxnet, but has not been charged.
And of course there is David Petraeus, the former CIA director and four-star general who is being investigated for leaking classified information to Paula Broadwell, his former lover and authorized biographer. According to recent press reports, lawyers in the Department of Justice have recommended that Petraeus be indicted, but there’s significant resistance because he is a popular figure with influential friends who have taken his side, including Sens. Dianne Feinstein and John McCain. While Kim sits in prison for talking to a reporter about a single classified document, Petraeus has not been charged for allegedly handing over multiple classified documents.
The Intercept, 18 February 2015. The Surrender, a film directed by Stephen Maing and produced by Laura Poitras and Peter Maass, about how the US Department of Justice used the Espionage Act to shatter Stephen Kim’s life and career. Stephen Kim’s “story raises many questions about the sensitive and important relationship between journalists and their sources. But most fundamentally, it demonstrates the threat to a free press from the government’s continuing crackdown on leakers and whistleblowers.”
Democracy Now!, 18 February 2015, Jailed for Speaking to the Press: How the Obama Admin Ruined Life of State Dept Expert Stephen Kim. “A new report by The Intercept tells the story of the Obama administration’s prosecution of former North Korea expert Stephen Kim for violating the Espionage Act. Kim is one of nine such cases under the Obama administration — twice as many as all previous presidents combined. The former State Department contractor was accused of discussing classified documents on North Korea with Fox News reporter James Rosen. Last year, he was sentenced to 13 months in prison. But Kim always maintained his innocence. During the year before he went to prison, he shared his story with The Intercept. Journalist Peter Maass of The Intercept details the prosecution of Kim in a new article out today, “Destroyed by the Espionage Act: Stephen Kim Spoke to a Reporter. Now He’s in Jail. This is His Story.” We speak to Maass about Kim’s case and broadcast an excerpt of “The Surrender,” a documentary that accompanies The Intercept’s report.”
Peter Maass, After Petraeus Plea Deal, Lawyer Demands Release of Stephen Kim. The//Intercept, 16 March 2015. “The lawyer for imprisoned leaker Stephen Kim has asked the Department of Justice to immediately release him from jail, accusing the government of a “profound double standard” in its treatment of leakers following a comparatively lenient plea deal for former Gen. David Petraeus.”
Update: Peter Maass, Stephen Kim, Ex-State Department Official in Leak Case, Released from Prison. The//Intercept, 12 May 2015. “Stephen Kim, a former State Department official who last year pleaded guilty to leaking classified information about North Korea to a Fox News reporter, was released from prison today after 10 months of confinement.”