SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2011, Issue No. 81
August 25, 2011

Secrecy News Blog: http://www.fas.org/blog/secrecy/

COURT DENIES MOTIONS TO DISMISS KIM LEAK CASE

A federal court yesterday rejected multiple defense motions to dismiss Espionage Act charges against former State Department contractor Stephen Kim, who is accused of leaking classified information to a Fox News reporter.

Mr. Kim's defense team had marshalled a series of seemingly ingenious arguments for dismissal. The use of the Espionage Act to punish "political crimes" such as leaking is prohibited by the Constitution's Treason Clause, one defense motion said. Further, the language of the statute appears to prohibit unauthorized disclosure of tangible items, such as documents, not "information" which cannot be surrendered on demand. Also, the defense argued, the Espionage Act is impermissibly vague and ambiguous with respect to oral disclosures. Finally, prohibitions against leaks are enforced and prosecuted rarely and unpredictably, rendering those rare cases intrinsically unfair.

None of these arguments gained any traction with the court, though the defense discussion of the Treason Clause was deemed "compelling and eloquent." Judge Colleen Kollar-Kotelly dismissed all of the defendant's objections in a memorandum opinion on August 24.

"To the extent that Defendant intends to argue that the information he is charged with leaking was previously disclosed or was not properly classified, he may do so as part of his defense," Judge Kollar-Kotelly wrote, "but such arguments do not render the statute vague" or otherwise invalid.

The new ruling probably does not come as a big surprise to any of the parties. The surprise would have been if the court had overturned or reinterpreted the Espionage Act. Instead, the ruling leaves the existing legal apparatus in place, and clears the path for trial.

The Kim case is one of five Espionage Act prosecutions undertaken by the Obama Administration due to alleged unauthorized disclosures of classified information. A New York Times editorial today scolded the Administration for what it called the "misguided" use of the Act.

"With no allegation of a motive or intended harm to the US, the government's use of Stephen as an example to deter the leaking of information is inappropriate," according to a statement on Mr. Kim's own web site.

A CORRECTION ON NUCLEAR SECRECY

On August 22 ("Some New Wrinkles in Nuclear Weapons Secrecy"), Secrecy News mistakenly wrote that the SILEX uranium enrichment process is "a unique case in which information that was privately generated was nevertheless classified by the government. As far as could be determined, the decision to classify this non-governmental information under the Atomic Energy Act is the first and only time that such authority has been exercised." That was inaccurate.

Dr. Andrew Weston-Dawkes, the director of the Department of Energy Office of Classification, said that offhand he was aware of at least one other such case of classification of privately-generated information. It involved "an AVLIS-like technology," he said, referring to "atomic vapor laser isotope separation."

Bryan Siebert, the former director of the DOE Office of Classification, said his recollection was that some of the laser fusion technology developed by the private company KMS Fusion in the early 1970s was also considered to be classified, "a long time before SILEX." An account of the KMS Fusion case -- which, he said, is "inaccurate in many ways" -- is available from Wikipedia here:

Beyond that, said Dr. Weston-Dawkes, "there's a long history of us going out to people [in the private sector] saying 'you're doing stuff' [that needs to be reviewed for classification]."

He pointed to a 1972 public notice issued by the Atomic Energy Commission. It instructed "any person" working on isotope separation techniques to notify the Commission whenever a separation process has been demonstrated "so the Commission can give him appropriate classification and reporting guidance."

There are many other instances in which individual authors have tangled with Department of Energy classification officials concerning the publication of information that DOE believed to be classified, such as Howard Morland's article on the H-Bomb that was the subject of The Progressive case in 1979. But those disputes involved previously generated and previously classified information, not qualitatively new inventions or developments.

NRO HAS "MOST AGGRESSIVE" LAUNCH RECORD IN 25 YEARS

The National Reconnaissance Office (NRO), which builds, launches and operates the nation's intelligence satellites, has been unusually active over the past year.

"We are nearly through the most aggressive launch campaign in over 25 years," said Betty J. Sapp, the NRO Principal Deputy Director, at a March 15, 2011 hearing of the House Armed Services Committee. The record of that hearing was published last month.

"We have successfully launched five satellites into orbit in the last six months, with one more launch planned next month," she said in March. "These successful launches have been a very important and visible reminder of the space reconnaissance mission NRO started 50 years ago, and continues with such great success today."

The full record of the March 15 hearing provides an unclassified overview of national security space programs. See "Budget Request for National Security Space Activities," House Armed Services Committee.

Among other interesting points raised at the hearing, Gen. William L. Shelton of Air Force Space Command discussed the Air Force's reliance on NOAA's aging Advanced Composition Explorer (ACE) satellite to detect disruptive solar activity.

"Located at a stationary point approximately 1 million miles between the Earth and the Sun, it gives us 30-90 minutes warning before the detected solar disturbance reaches the Earth and our space assets," Gen. Shelton said in response to a question for the record. "This enables us to implement measures to protect our space systems and services."

This year's 50th anniversary of the NRO (established in 1961) will be accompanied by some new declassification activity. "Almost all" of the historical intelligence imagery from the KH-9 satellite (1971-1986) will be declassified within a few months, said Douglas G. Richards of the Joint Staff at an August 23 forum sponsored by the National Declassification Center.

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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