By JOSH GERSTEIN
Arguing that the move will prevent further damage to national security, prosecutors are urging a federal judge to approve a 13-month sentence for a former State Department contractor who has admitted leaking the contents of a highly-classified report on North Korea to Fox News.
In a filing Monday, the Justice Department urged U.S. District Judge Colleen Kollar-Kotelly to accept the sentence the prosecution and lawyer for defendant Stephen Kim agreed on prior to his surprise guilty plea last month to a felony charge of disclosing closely-held national security information. Prosecutors also said the FBI and U.S. intelligence agencies "concurred" in the plea deal and proposed 13-month sentence.
"The agreement reflects a fair resolution of the defendant’s criminal culpability especially when balanced against the further harm to the national security that would likely result from a trial," prosecutors wrote in a 13-page memo (posted here).
"The United States must balance the need for prosecution with the damage that further disclosure of classified information at trial might cause. Over eight months ago, the prosecution advised the Court and the defense that proving the government’s case at trial would require the United States to declassify a substantial amount of TOP SECRET//SCI information. While the United States would have done so had the defendant not agreed to plead guilty, the plea agreement affords the United States a substantial benefit in protecting from disclosure that still-classified information," the prosecution team added.
The prosecution filing does not articulate any specific harm to national security that flowed from Kim's leak to James Rosen, who was Fox's State Department correspondent at the time of the episode in 2009. Rosen published a story on Fox's website in June 2009 saying that U.S. intelligence, based on sources in North Korea, expected the secretive Asian country to conduct nuclear tests.
In a separate filing later Monday, Kim's defense team downplayed the seriousness of the leak.
“This is...not a case in which this defendant is being charged or sentenced for willfully disclosing information that would endanger a source or jeopardize this country’s intelligence-gathering capabilities," lead counsel Abbe Lowell and other defense lawyers wrote in their memo (posted here).
"He was not a spy leaking information to a foreign intelligence service. He was not an ideologue leaking information to forward a particular political agenda. He was not a mercenary leaking information for personal gain or financial wealth. Rather, Mr. Kim was a dedicated public servant who had served his nation admirably for over a decade, but who made a mistake on this occasion," the defense attorneys said.
Kim's lawyers also complained that the government uses a double standard when it comes to leaks.
"Government officials at every level speak with news reporters on a daily basis in Washington, DC. As this Court well knows, many of those conversations include the disclosure of classified information – a fact often confirmed in the news articles themselves. Yet few, if any, of those officials have paid the price that Mr. Kim has paid for a single conversation with a reporter. To the contrary, some of these officials have even been promoted to higher positions in the administration," the defense team wrote.
Under the unusual plea agreement announced last month, Kollar-Kotelly must either approve the agreed 13-month sentence or reject it as inappropriate. If she were to reject it, the two sides could negotiate a new plea deal or go to trial or the government could drop the case.
The proposed 13-month sentence for Kim, who worked as a top intelligence adviser at State, is shorter than those imposed following convictions in other recent leak cases. Former CIA officer John Kiriakou got a 30-month sentence after pleading guilty to revealing the identities of other CIA personnel involved in terrorist interrogations.
In 2010, FBI contract linguist Shamai Leibowitz received a 20-month sentence for disclosing secret documents to a blogger. The nature of the information has never been officially disclosed, but it reportedly included communications intercepted from the Israeli Embassy in Washington. (Wikileaks leaker Pvt. Bradley Manning received a 35-year sentence, but that sentence is not yet final and it followed a court martial which used procedures different from the civilian court system.)
While the judge is supposed to consider other sentences in deciding if Kim's sentence is proper, prosecutors in the Kim case said comparisons are "of little utility" because so few people have been convicted of the specific leaking offense to which he pled guilty. The defense argues that the maximum 10-year sentence on the single charge Kim's pled guilty to is of little relevance because the statute was drawn up to convict spies, not people who leak information to journalists.
The charges against Kim drew only modest attention from the press when they were announced in 2010. However, the case drew intense news coverage last year when it was disclosed that prosecutors had obtained Rosen's e-mails by labeling him as potentially criminally culpable in the leak by aiding, abetting or acting as a co-conspirator with Kim.http://www.politico.com/blogs/under-the-radar/2014/03/feds-leakers-plea-spares-secrets-185638.html