Two Steps Back?

In a new interpretation of the Espionage Act, a federal judge made it easier for prosecutors in leak cases to meet their burden of proof, while reducing protections for accused leakers.

Judge Colleen Kollar-Kotelly ruled that the prosecution in the pending case of former State Department contractor Stephen Kim need not show that the information he allegedly leaked could damage U.S. national security or benefit a foreign power, even potentially.

[...]

The prosecution must still show that the defendant “reasonably believed” that the information “could be used to the injury of the United States or to the advantage of a foreign nation” and that the defendant “willfully” communicated it to an unauthorized person. But it would no longer be necessary for prosecutors to demonstrate that the information itself could potentially damage national security or benefit an adversary.

  Secrecy News

So it doesn’t matter that the information could cause no harm. It’s all about intent. Is that what’s happening here? If so, I don’t see how, as the article begins that is an easier burden of proof. It would actually seem more difficult to me.

The Kim defense had argued that the requirement to show that the leaked information could cause at least potential damage was essential to a proper understanding of the Espionage Act statute. Without it, defense attorneys argued, the Espionage Act would become something like an Official Secrets Act, enabling the government to punish disclosure of anything that was designated classified, even if it was improperly classified.

That part is true, and not good, because now they can nab you for telling anything. I suppose even if it’s harder to prove you intended to harm the US, they can still make ruin your life by bringing charges for anything. But I think they could do that anyway, though.  This administration seems to be very fond of pulling out the Espionage Act to charge or just threaten people who embarrass it.

In a subsequent reply, the defense added that “The requirement that disclosure of the information be ‘potentially damaging’ is ‘implicit in the purpose of the statute and assures that the government cannot abuse the statute by penalizing citizens for discussing information the government has no compelling reason to keep confidential’ .”

As I said, it seems they do that anyway. Assurance or no. Perhaps this is due to one of the complaints that keeps coming up: things are overclassified which leads to people being charged with crimes they shouldn’t be charged with. Now, the judge is saying, you won’t be able to argue that any more.  The Espionage Act can cover anything we say it does. 

This ruling was apparently handed down in May and just now “unsealed.” It’s part of the messy case in which Fox News reporter James Rosen finds himself over political intelligence regarding North Korea leaked to him by someone in the NSC – currently several fingers are pointing and deflecting blame – which Rosen reported and which apparently had no potential national security harm at all.

Another victim in Obama's war on journalists and whistleblowers.