Question (Q): How does the Espionage Act specifically apply to Stephen Kim’s case, and do you believe that such an application in Stephen Kim’s case to be just?
Answer (A): While Stephen was charged under the “Espionage Act,” he is not charged with espionage. He is charged with leaking information. This law is contained in the same part as the espionage or spying laws. Nevertheless, it is a puzzling charge because the prosecutors do not allege that he gave away any documents or divulged any military plans or operations, or named a confidential source, or took any money, or met in secret or did anything that he thought would injure the United States. All he appears to be charged with is talking to a member of the press which is an allowed and protected activity under the U.S. Constitution.
Q: Isn’t there an implicit and explicit premise that the Espionage Act is applied especially when an important national interest is at stake? What does the FBI assert? That Stephen Kim’s actions betrayed the United States and was a spy for which country?
A: That is what is most troubling about this case. The government does not claim that Stephen was a spy for any country. And, it cannot prove that he did anything that harmed the United States. In fact, all Stephen ever did was his job as a foreign policy analyst who worked everyday to help the interests of the United States, especially in understanding the actions of North Korea.
Q: How many people were indicted under the Espionage Act before Stephen Kim’s case in 2010? And of those, what is the number of defendants who have been found to be not guilty?
A: Stephen’s case is unprecedented. There have been only a few cases in 80 years of charges being brought against someone for talking to the media about their work. Daniel Ellsberg was charged under the Espionage Act for stealing the Pentagon Papers on Vietnam and giving them to The New York Times. These charges were later dismissed. The only conviction known is the 1985 Morrison case in which Morrison was found guilty and sentenced to 2 years for sending a Soviet satellite picture to a newspaper where he was a part-time editor, which then was published. On his last day in office, President Clinton pardoned Morrison.
And last year, the United States government dismissed a case (after five years of litigation) that it had brought against several men that worked for the American Israeli Public Affairs Committee — a case very similar to the one brought against Stephen — because it did not believe that it could prove its case in a trial. In recent years, this law has come under increasing scrutiny from the public and the media precisely because its misuse jeopardizes the healthy relationship between the media and government.
Q: What are the some of the biggest flaws and problems in the FBI/U.S. government’s case against Stephen Kim?
A: The entire case is riddled with flaws. The government rushed to judgment without a thorough investigation. Stephen did not pass national defense information to anyone. Stephen did not do anything with an intent to harm the United States. He had absolutely no motive to do anything wrong. Simply put, Stephen did not do anything that violates any laws of the United States. On the contrary, Stephen has cooperated with the government from the very beginning till the actual indictment. He twice voluntarily agreed to speak to the FBI without legal counsel even though it was his constitutional right to do so. He relinquished his U.S. passport voluntarily even though he had every right to refuse. He allowed 6 FBI agents to search his home on a moment’s notice, without hesitation. He allowed them to take all of his computers at home even though he was not obligated to do so. Despite this level and extent of cooperation, the government indicted him.
Q: Some have stated that this indictment would have a chilling effect on the normal interaction between the press and government. Why is that? What are the implications for freedom of press in the U.S.?
A: This case has serious implications for freedom of the press. It is an everyday occurrence in the United States that government officials interact with members of the media in official and unofficial ways. Just look at Bob Woodward’s new book on President Obama and Afghanistan. This kind of interaction is good for our country and a healthy way to ensure that our foreign policy decisions are sound and consistent with the best interests of the United States. If government officials and employees can be prosecuted simply for interacting with a member of the media, then this case will have a chilling effect on the media’s ability to report on public affairs.
Q: What have news events about North Korea and WikiLeaks meant for this
A: North Korea’s past acts of aggression and the implications of leadership changes show how important it is to have people with Stephen’s ability and experience working in foreign policy. His interactions with his colleagues and with the media to make a better foreign policy for the United States should be commended and not indicted.
The WikiLeaks issues show how ill-advised the case against Stephen is. WikiLeaks involved the disclosure of hundreds of thousands of classified documents that seem to have no purpose other than to embarrass the United States. The documents in WikiLeaks appear to have been stolen. Stephen is being charged with having talked (not given documents) to a single reporter on a single day that was part of foreign policy discussions with no allegations of theft or anything else. Seeing what is involved in the WikiLeaks matter demonstrates why a criminal case against Stephen makes no sense.