There is an interesting tidbit of information in this new New York Times article, by Scott Shane, on Dr. Stephen Jin-Woo Kim, who has been charged with Espionage for having a telephone conversation with a reporter.
Stephen Kim was ordered to do the very act that the government is now claiming is Espionage. The State Department ordered him to talk about North Korea with the media. Now the government is charging him with Espionage for talking about North Korea with the media. Compare this with the Drake case: as part of Drake's job, he was told to retain files regarding an OIG investigation. Then he was charged with Espionage for retaining the files that he had just been told to retain.
Kafka.
The New York Times story is very interesting - it is one of the few news reports focusing on Kim's case so far. However, the Times has apparently forgotten the lessons of the Dr. Wen Ho Lee Espionage Act case in 1999. Lee later won a large lawsuit against the government and several newspapers for their gross mistreatment of him. The Times is, now, 12 years later, again giving too much credence to the government and failing to be sufficiently skeptical. For example, the article says that "Kim lied to the FBI". Actually we don't know that. All we know is that the government criminally charged Kim with lying to the FBI. People lambasted President Obama when he said Bradley Manning "broke the law", but here the New York Times has done the same thing to Stephen Kim.
Thomas Drake was criminally charged with lying to the FBI too. Drake got all 4 'lying' charges against him dropped, and the judge wrote that one of the things he was accused of lying about, well, he didn't even do it, and there was no evidence that he did it.
When the government charges someone with 'lying to the FBI', what it can actually mean, sometimes, is that the FBI tricked someone, kept them in a room for several hours, with multiple agents interviewing them, got them confused and tired and scared, and then pounced on a mis-statement or slight discrepancy in wording and then claimed that some tiny mistake was a 'lie'. If you don't believe me, please view the youtube video "Never talk to the police", in which both a Law professor, James Duane, of Regent Law School, and Officer George Bruch, of the Virginia Beach PD, will explain how the system works, and why we have a Fifth Amendment right to remain silent.
Sometimes the government bends the bounds of propriety in their accusations of 'lying', and they use it as a sort of "psychological strategy" against the defendant, working on both the defendant's own emotional state and the media portrayal of the alleged offenses. That is what they did in the Lee case and the Drake case. It maye have happened in the Kim case too. If so, then the New York Times is playing right into the trap. This is not what a reader should expect from the media - the media is supposed to challenge the government's claims, not repeat the government's statements uncritically. Did Kim lie? Maybe. Maybe not. It is not for the New York Times to decide. But I digress.
According to Shane's story, the CIA apparently decided that Kim got his information from a 'TOP SECRET' classified report, thus somehow making the tidbit of information in his telephone conversation also 'TOP SECRET'. However, the concept of "Classified Top Secret" is not the standard used in an Espionage Act case (except for the almost-never-used section 798). As judge T.S. Ellis III pointed out in the resentencing hearing of Larry Franklin in 2009, and as many others have pointed out elsewhere, the relevant standard in the Espionage Act is "national defense information", not "classified information". Furthermore, only the court, i.e. the jury, can decide if something is 'national defense information' or not.
The definition of "national defense information" has evolved over the years, but it basically refers to a much smaller set of information than the term "classified". Congress has, actually, repeatedly refused and/or failed to change the info-secrecy laws, like the Espionage Act, to blanketly criminalize the disclosure of all information in the 'classified' category. Part of the reason is that Congress likes (as does the President) to give out secret information in order to fight it's political battles in the media. This tradition goes back to the founding fathers, before the invention of the concept of 'classified' itself.
The New York times does not mention any of this. The fact that some report is stamped TOP SECRET, and then Kim talked about one tiny piece of information inside of the report, does not, by itself, mean he broke any law, let alone the Espionage Act. Many of the supposedly super-important documents in the Drake case were also supposedly TOP SECRET. When the government dropped all charges against him, it made the importantce of the SECRET claims about his documents a little suspect. Especially considering that one of them was actually de-classified shortly after his indictment, and another had been marked UNCLASSIFIED in big, bold letters.
Like Drake, Dr. Kim has refused to plea bargain. He believes he is innocent. If you look at all the top secret information that continually streams out of Congress and the Whitehouse (the leaks regarding the Bin Ladin raid perhaps being the most egregious in recent memory), the case is questionable. Why did they indict Kim, and not one of the hundreds, if not thousands of other government employees who do the same thing all the time? Kim's defense has pointed out that the highly sensitive information in Bob Woodward's book, "Obama's War", could only have come from the highest levels of the administration. Should those sources be charged under the Espionage Act as well?
With the Kim case, the State Department told him to do what he did. He was following orders. If I were on the jury, how, exactly, would I feel about that? About putting a man in jail for 10 years for doing what he was told to do? How would I feel, considering that in my own job, I have personally experienced having one boss get mad at me for doing what another boss told me to do, and that several other people were doing too? Which party am I going to have sympathy with here, the defense or the prosecution?
There is one detail about Kim's case IMHO that makes it a bit problematic for Kim's defenders, though. From Shane's article:
On June 11, 2009, Mr. Rosen reported that “the Central Intelligence Agency has learned, through sources inside North Korea,” that Pyongyang was likely to respond to a United Nations resolution condemning its nuclear and missile tests with more tests and other measures. The news was no surprise.
I suppose, theoretically, that this information could have alerted the North Koreans that we have sources inside North Korea. But Shane's "no surprise" follower implies that perhaps this was not a huge deal - perhaps they already knew it? Considering all the information the administration revealed about the sources in the Bin Ladin raid, such a disclosure is apparently not unprecedented. In the language of the Espionage Act, the question might come down to this - did Kim have "reason to believe" this information could harm the US or help a foreign nation?
What is going on in this case? Is Dr. Kim a pawn, perhaps like Mr. Drake, in some sort of political fight between the powerful forces of government? In Kim's case, is it the CIA versus the State Department?
References
U.S. Pressing Its Crackdown Against Leaks, Scott Shane, New York Times, Jun 17 2011
The Protection of Classified Information: The Legal Framework, Jennifer K. Elsea ,Legislative Attorney , January 10, 2011 , from Federation of American Scientists (FAS.org)
stephenkim.org, Stephen Kim Legal Defense Trust
Don't talk to the police, youtube, uploaded by user "russr", June 2008. with Professor James Duane, Regent Law, and Officer George Bruch, Virginia Beach PD
Larry Franklin resentencing hearing, Judge T.S. Ellis III, 2009, US District Court, Eastern Virginia / Alexandria, from Federation of American Scientists (FAS.org)
The Espionage Statutes and Publication of Defense Information by Harold Edgar and Benno C. Schmidt, Columbia Law Review, May 1973, from Federation of American Scientists (FAS.org)
US v. Thomas Drake, Selected Case Files, from Federation of American Scientists (FAS.org)
The Trial, Franz Kafka, 1925. from Project Gutenburg
Leaks Through History, John Woestendiek, Baltimore Sun (Oct. 14, 2003), via History News Network (hnn.us)
In Politics, Leaking Stories Is a Fine Art, by Richard T. Cooper and Faye Fiore, Los Angeles Times, April 9, 2006
Building Our Own “Iron Curtain”: The Emergence of Secrecy in American Government Timothy L. Ericson, Society of American Archivists, 2004/2005
Jesselyn Radack's DailyKos blog