Former State Department analyst Stephen Kim. He’s currently serving a 13-month sentence at the Federal Bureau of Prisons in Cumberland, Maryland, for violating the Espionage Act by leaking classified documents on North Korea to Fox News reporter James Rosen.
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.
Peter Maass talking:
Stephen Kim was a expert on North Korea. He worked at the Lawrence Livermore National Laboratory, which is where the nuclear weapons in the American arsenal are designed and where they’re analyzed. So he was privy, when he was there, to some of the kind of deepest, most sensitive secrets of all. And then he became an official at the State Department working as an expert on weapons of mass destruction, in particularly North Korea. And in 2009, he was introduced to James Rosen of Fox News by John Herzberg, who is an official, actually, a press official, at the State Department. And they were introduced in order to talk. And they talked about all kinds of things—Pakistan, North Korea, etc.
It’s one of the kind of tragedies of this case, is that Stephen Kim ended up being prosecuted by the FBI and the Department of Justice for talking to a reporter whom Kim had been introduced to by another arm of the government—that is, the State Department’s press office.
What Herzberg set up was this kind of, you know, very ordinary, by Washington standards, meeting, first meeting between a journalist and a State Department official. It took place outside of the State Department. Again, this is arranged by a State Department official. Because Herzberg, as, you know, a kind of savvy press official does, knew that it wouldn’t be so good for this first meeting to take place in Kim’s office—it was in a very sensitive area, everybody would have to put away their classified documents, etc.—not so good to have them meet in the cafeteria—whatever other journalists and other people would see, etc.—so Herzberg arranged for them to go outside of the State Department and meet in a park right outside of the State Department.
And Herzberg was with them, and Herzberg introduced them. “Stephen Kim, this is James Rosen. James Rosen, this is Stephen Kim. I think you guys have a lot to talk about.” First meeting, 10 minutes, they just exchanged pleasantries, etc. Another—and again, “irony” isn’t quite the right word with this, but later on, when Stephen Kim had this one conversation with James Rosen that is the subject of the Espionage Act prosecution, they left the State Department and talked outside of the State Department, and the FBI portrayed this fact, that they left the department in order to talk, as something very suspicious, that they were doing something that they weren’t supposed to do, even though that precise act of leaving the State Department to talk is what they had done the very first time when they were introduced by a State Department official.
Stephen Kim was very—had very little experience dealing with reporters, basically had not talked to any American reporters, had talked to some Japanese reporters that had been sent—brought into his office somewhat recently before this. He was interested, he told me, in talking to a reporter and asked for suggestions from Herzberg, and Herzberg suggested James Rosen. Kind of unusual for a State Department official, press official, to kind of first go, perhaps, to Fox News, which isn’t loved in the State Department, which isn’t loved in the Obama administration. But the bureau where Stephen Kim worked, which was in charge of basically seeing that—making sure that arms control agreements were complied with, was kind of a redoubt of hardliners. And Herzberg himself, actually, had donated to the Bush-Cheney campaign, etc., so he had some sympathies and had a friendship with Rosen. And so, the decision was made Rosen would be the person that Kim would be introduced to. And that decision was made by Herzberg.
That was in the spring of 2009, and they continued talking on their own, without Herzberg or anybody around. And then, on June 11, 2009, Rosen calls Stephen Kim, calls him a number of times. And then they leave the State Department building once in the morning, and they go out and talk, and then they come back in. And then Stephen Kim looks at—back at his office, at a classified—a new classified government report on North Korea. And then they go back outside again, Kim and Rosen, having arranged to do so. And they talk for—maybe it was 15 minutes, something like that. Kim goes back into the office.
Three hours later approximately, Rosen publishes a story on the Fox News website that says, according to a new classified report, North Korea—U.S. government report, North Korea is planning, in response to the United Nations sanctions, to detonate another nuclear weapon, etc., etc. And that report, the classified report that Rosen’s story was based on, and Rosen’s story itself, is the subject of the Espionage Act prosecution, because the government contended that this was classified information, harmful to national security, and Stephen Kim leaked it to James Rosen.
The curious thing about this whole prosecution is, A, no document ever changed hands. The government never accused him of actually providing a document. It was just a discussion about a document. And then one of the things that I found out in the course of reporting this story, going through, for example, this very kind of lengthy court docket that a lot of people hadn’t looked at, is that the FBI interviewed government officials about what happened and about the report, and one of these government officials told the FBI, “This classified report that they talked about, it’s a nothing burger.” That was the phrase that was used, a “nothing burger.”
And another official said, about the Rosen story, about this nothing burger of a classified report, said that the report, Rosen’s report, was nothing extraordinary. So, the government even had people that it interviewed inside of the government who were saying, “Look, this report wasn’t a big deal.” Now, of course, there were people in the government who thought it was a big deal.
The biggest problem for Kim, though, I think—and this kind of came out in the course of the reporting—was that his timing was terrible, because he talked to Rosen at a time when the Obama administration had pretty much had it with leaks and had decided, unlike previous administrations—and all administrations, they don’t like leaks, unauthorized leaks. Official leaks, that’s fine, they help the administration, it’s for PR purposes. Unofficial ones that they don’t control, they hate. The Obama administration, in contrast to the ones that preceded it, decided to use the Espionage Act to prosecute people who leaked, who talked without authorization to reporters. And Stephen Kim happened to be a person who talked to a reporter without authorization about a subject that the government did not find very flattering.
he had original authorization to talk with Rosen, exactly. There wasn’t explicit authorization for him to go out and talk to Rosen about this particular report. So that was kind of a slight distinction there. But his timing was terrible, because that story, the Rosen story, came out just at the moment when the Obama administration, when Dennis Blair, as head of national intelligence, was looking it over and saying, “We’ve got to stop this. We have to prosecute people. We need to,” as Blair told The New York Times later on, “hang an admiral, make an example of somebody.” And Stephen Kim popped up onto the radar screen right then.
It was very unfortunate for him that Rosen, unfortunately, had not been terribly careful in his contacts with Kim. So, for example, when the government decided, like, “OK, we’re going to investigate this leak,” it was very easy for them to figure out where Rosen got it from, because Rosen had used his phone at the State Department—he was a State Department reporter then—to call Stephen Kim several times that day. He had used his cellphone to call Stephen Kim several times that day. They left the building at the same time. They returned at basically the same time. So, for the FBI, you don’t have to be a very good FBI agent to figure out very quickly who James Rosen talked to, who had access to that report. And they zeroed in on Stephen Kim quite immediately. And then they found a series of emails that Rosen had sent to Stephen Kim asking Kim for internal documents from the State Department. Case closed. I mean, not case closed, but that, for the government, was the entire case, basically.
The FBI came to him in his State Department office, and they told him they were there to talk about an investigation. Stephen Kim did not know what the investigation was. And they asked him a lot of questions, and some of the questions were about the story that Rosen had reported. They didn’t tell him that he was the target of the leak investigation. He didn’t know at the time, when he was first talking with the FBI, that he was the target. They did not tell him that. And that was, in some ways, what at least Stephen Kim’s lawyer refers to as kind of a perjury trap—not in those precise words.
He regards it as something close to a perjury trap, wherein the FBI—and this is something the FBI has done and law enforcement does quite frequently. They go to suspects, interview them very casually, don’t tell the suspects, “You’re actually the target of our investigation,” and they get the suspects sometimes to not tell the entire truth, because the suspects don’t know that they’re under investigation, that it’s a big deal, etc. And so, Stephen Kim, when the FBI first came to him, didn’t tell the entire truth. He said, “Well, I’ve only met James Rosen once. I wouldn’t talk to him about, you know, anything else, and I never talked to him again,” which was not true. If he had known that he was the target of an investigation, he would have probably lawyered up, and he would probably have been very careful about what he said.
When the FBI came to him the second time, which was about nine months later, then they kind of laid down everything they had. They said, “You’ve broken the Espionage Act. There’s a body of work,” is the phrase that they used, according to Stephen Kim. They threatened him with multiple counts of the Espionage Act. And this was in August of 2010 that he was finally indicted under one count of the Espionage Act and one count of lying to the FBI. That was 2010.
He decided to fight against the government, and for four years he fought. And he got Abbe Lowell, who’s a very good, but very expensive, lawyer to take his case on. It cost millions of dollars, only part of which actually Stephen Kim could afford to pay. And it took everything out of him. And this is one of the things that to me was—I guess it’s not surprising, because we’ve seen this happen. But when the U.S. government goes after somebody, and goes after somebody in what the government considers a high-priority case, it has virtually unlimited resources. And the effect that this had on Stephen Kim was to deplete his life savings, deplete his family’s life savings. His marriage broke up. His young son had to move away. He contemplated suicide. And he talked to me about this. You know, when you’re kind of accused of basically—of espionage, which is what the name of the act is, your entire reputation is shot even before you have the first chance to stand up in a court and say, “I’m innocent, and this is why.” And he googled how many sleeping pills it would take to kill himself. He thought of jumping in front of a train, not because he was guilty, but because he was innocent and didn’t feel that he would be able to get a fair trial, that he would end up spending many years of his life in jail.
not long before the trial was scheduled to start, the government made an offer to Stephen Kim’s lawyers, which was that he would have to spend a slightly modest amount of time in jail—and it ended up being 13 months—plead guilty to the Espionage Act violation. This was after they had said he was threatened with 30 years, then he should serve seven years to a plea agreement and now it’s down to 13 months.
This is, often a process where the government kind of threatens to throw the book at somebody unless they plead guilty, and it creates an enormous amount of pressure. And Stephen Kim compared himself—or, didn’t compare himself, but said that he really understood, for example, what happened to Aaron Swartz, Aaron Swartz being the brilliant computer programmer who was accused, after having downloaded academic articles from a commercial database, accused of computer crimes that would have landed him in jail, the government was saying, for, I think, more than a decade or something like that. And it was a terrible burden for Aaron Swartz to take, and he ended up taking his own life. Stephen Kim came very close himself to that. The government doesn’t only crack down on leakers and whistleblowers. It cracks down really on—very strongly, on anybody who disseminates data beyond the borders that the government deems appropriate, whether it’s corporate or government data.
And so, for Stephen Kim, it became a kind of—he described it to me as like a brutal calculus: “OK, if I plead guilty and get 13 months in jail, that’s it. I’ll be out, maybe after good behavior, after 11 months. If I take this to trial, if I go to trial, I could end up in jail for 12 years. It will be another million dollars in legal fees that I don’t have the money to pay for. Which is the better route to go?” And he took the route of pleading guilty and taking the 13-month sentence.
one of the aspects of the case that got actually more attention than what happened to Stephen Kim, is what happened to James Rosen, which is, the government, in order to acquire emails, James Rosen’s emails, more than they actually already had, they applied for a search warrant. And in the search warrant, they referred to Rosen as a potential co-conspirator in violating the Espionage Act. They accused him of basically kind of being this minstrel who was trying to operate, aspiring with Stephen Kim collecting data, and maybe unnamed other people collecting data. Rosen came that close to being indicted himself. When this was revealed, that the government, A, called him an unindicted co-conspirator, and, B, got his cellphone records, got his emails, tracked his physical movements, when this was finally revealed—and this came out in 2013—it was a huge controversy in the press, because it was taken, legitimately so, as an attack on the freedom of the press.
James Rosen at Fox and James Risen at The New York Times. very different stories and very different journalists, but there was something very similar in both of their cases, which is that the force of the government was brought to bear on journalists in order to connect them to crimes or get them to talk about alleged crimes.
Stephen Kim’s lawyer, Abbe Lowell, who had actually been involved in a previous Espionage Act case, so knew the law and knew how the government operated in regards to these cases quite well, his first kind of goal really was to find out, well, who else might have talked to James Rosen of Fox News, or other people at Fox News, about this same report. And he found out that there were a number of other people who, A, had access to that report and who had been talking to reporters at Fox News. Major Garrett, another reporter from Fox News, had talked with somebody at the National Security Council that day about North Korea. Was somebody else talking to Fox News, who wasn’t being prosecuted because maybe that person was a senior official? That’s possible.
what Abbe Lowell did was, you know, just basically kind of make the point that there’s a selectivity involved in this prosecution. Every day in Washington there are government officials who are talking to reporters about sensitive issues that may be classified. That’s half of what Bob Woodward does every day, is talk to government officials who tell him secrets. Some of them, Bob Woodward writes about. And because those are senior officials who are very powerful and can’t be indicted quite as easily—let’s say your name is David Petraeus—they don’t get indicted. In fact, they get rewarded. Their names show up in the newspaper, they end up on TV, all of that. If you’re a mid-level official and you talk to a government—and you talk to a journalist, and the government doesn’t like it, you have no protection. You don’t have all the networks and all the friends that, let’s say, a general has. And so you’re very vulnerable. And that’s what happened with Stephen Kim. He was vulnerable. He wasn’t powerful. He didn’t have kind of influential people in the corridors of power who would say, like, “Don’t touch this guy.”
David Petraeus, it’s known General Petraeus gave classified information to his girlfriend, who is his biographer. And you have senators who are standing up on the Senate floor, like Senator Feinstein, saying he’s a good guy.
So General David Petraeus has been reported to have been actually recommended for prosecution by the Department of Justice, but there hasn’t been any prosecution yet, for leaking classified documents, plural, actual documents, plural documents, to Paula Broadwell, who was his authorized biographer, as well, at the time, as his lover. And General Petraeus, there has not been a case lodged against him yet. He has not been indicted. He may not, and probably not, be indicted.
There are other instances. For example, Leon Panetta, who was the director of the CIA, actually leaked the name of the team leader of the team that killed Osama bin Laden to the media. General James Cartwright has been reported as being the official who leaked information about Stuxnet, the virus that was targeted against the Iranian nuclear complex, leaked that information to The New York Times. He has not been indicted. And the reason that these people have not been indicted, as far as we know, is basically because they are very powerful, and they have friends in very high places who make sure that the Department of Justice doesn’t go after them.
Stephen Kim waits in jail until he gets out, which will be sometime later this year. And, you know, while other government officials, many other government officials who have leaked far more sensitive things, who have leaked actual documents, numerous documents, are still at their jobs, are still talking on TV, and will become very successful entrepreneurs when they leave government service probably.
— source democracynow.org
Peter Maass, award-winning investigative journalist, author and senior writer at The Intercept, a publication of First Look Media. He has just published a major report titled “Destroyed by the Espionage Act: Stephen Kim Spoke to a Reporter. Now He’s in Jail. This is His Story.”