from the FAS Project on Government Secrecy
Volume 2013, Issue No. 69
July 29, 2013

Secrecy News Blog:


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. Her opinion was a departure from a 30-year-old ruling in the case of U.S. v. Morison, which held that the government must show that the leak was potentially damaging to the U.S. or beneficial to an adversary. (In that case, Samuel L. Morison was convicted of unauthorized disclosure of classified intelligence satellite photographs, which he provided to Jane's Defence Weekly. He was later pardoned by President Clinton.)

"The Court declines to adopt the Morison court's construction of information relating to the 'national defense' insofar as it requires the Government to show that disclosure of the information would be potentially damaging to the United States or useful to an enemy of the United States," Judge Kollar-Kotelly wrote in a May 30 opinion. The opinion was redacted and unsealed (in partially illegible form) last week.

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.

The new ruling was a boon to prosecutors and a blow to the defense in the Kim case and perhaps other leak trials to come.

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. They cited a concurring opinion in the Morison case stating that its interpretation of the law was necessary "to avoid converting the Espionage Act into the simple Government Secrets Act which Congress has refused to enact."

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'."

"The Court should decline the government's invitation to reject the leading Espionage Act cases of the past quarter century," the defense urged.

But prosecutors insisted successfully that, contrary to the Morison court and other Fourth Circuit cases, there is no requirement in the statute to show that disclosure could cause harm. "By its terms, Section 793(d) [of the Espionage Act] does not require the United States to prove any harm, whether potential or not...."

In her ruling, Judge Kollar-Kotelly accepted the prosecution view.

"In cases like this which involve the alleged unauthorized disclosure of classified information, the Morison approach invites (if not requires) the jury to second guess the classification of the information," she wrote in the newly disclosed May 30 opinion.

Although a review by the jury of the information's classification might seem like a wholesome and necessary check on overclassification, Judge Kollar-Kotelly said it would lead to an "absurdity" -- "The trial of the individual charged with unauthorized disclosure would be converted into a trial of the classifying party," as she put it, citing an earlier precedent.

Moreover, "the Court was unable to locate a single case outside the Fourth Circuit employing this standard," she wrote. The Morison case was tried in the Fourth Circuit, as was the AIPAC case, the Kiriakou case, and the still-pending Jeffrey Sterling case.

By imposing such a requirement, the Kim prosecutors said, the Fourth Circuit had arguably offered "more protection to defendants than required by [the Supreme Court]."

So for defendants who are accused of leaking classified information, it seems that the Fourth Circuit would be the most advantageous location in which to be tried. Stephen Kim is on trial in the DC Circuit.

Several other rulings (and underlying pleadings) in the Kim case were unsealed last week, and they were discussed in the Washington Post ("Attorney for accused leaker says other U.S. officials may be responsible," July 25) and Legal Times ("In Leak Case, Prosecutors Allowed to Keep Information Secret," July 25).


There have been 71 federal judges who have served on the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review from 1979 until the present. A complete list of the Court's past membership, prepared by the Court's Administrative staff, was obtained by the New York Times. Although this comprehensive listing was not formally secret, neither had it been previously been made publicly available. A copy is posted here:

Under the Foreign Intelligence Surveillance Act, appointments to the Court are made by the Chief Justice of the United States. An analysis of the Court's membership by the New York Times found that during the tenure of Chief Justice John G. Roberts Jr., a higher number of Republican judges had been appointed than in the past -- 10 of the current 11 members, compared to 66% under previous Chief Justices -- as well as a higher number of judges who had once worked for the federal government -- 50% versus 39% in the past. See "Roberts's Picks Reshaping Secret Surveillance Court" by Charlie Savage, New York Times, July 25.

The premise of the story is that Chief Justice Roberts's selection pattern is not merely a statistical curiosity but that it has altered the performance of the court, or "reshaped" it, to favor the executive branch. The Times does not directly embrace this view, but attributes it to "critics," including Sen. Richard Blumenthal (D-CT), who is proposing legislation to change the way the Court's members are appointed.

"Viewing this data, people with responsibility for national security ought to be very concerned about the impression and appearance, if not the reality, of bias -- for favoring the executive branch in its applications for warrants and other action," Senator Blumenthal told the Times.

But the claim that Justice Roberts's appointments have "reshaped" the Court to favor the executive branch in applications for warrants does not withstand a moment's scrutiny. That's because the Court's approval rate has always hovered near 100% -- both before and after the Roberts era. No discernable reshaping has occurred.

In fact, based on the available data, one could perhaps say that the Court has exercised greater scrutiny lately than it once did. In 1979, in the Court's very first year of operation, all applications for surveillance were approved without modification. In 2012, the most recent year, no applications were denied outright, but 40 of them were modified by the Court.

A more substantial concern is that the function of the FISA Court has expanded in the past decade beyond the routine consideration of surveillance applications, and now extends to the secret interpretation of government authorities under the law. This is indeed an area when ideological predispositions could manifest themselves in reshaping the applicable law.

Whether that has actually happened is impossible to ascertain since most of the Court's opinions, including those that the Court itself has deemed "significant legal interpretations," remain classified and unavailable.

But the notion that the behavior of FISA Court judges can be reliably inferred from the political party of the President that appointed them, or from their past service in the executive branch, is cynical and vaguely insulting.

The Times names Judge Reggie B. Walton as one of the current Court members appointed by Justice Roberts who previously served in the executive branch (working "on drug and crime issues for the White House") and who is therefore purportedly more likely to defer to the interests of the executive.

But the suggestion that Judge Walton has been unduly deferential to executive authority is not borne out by his record. Years ago I filed a Freedom of Information Act lawsuit against the National Reconnaissance Office that was heard by Judge Walton. I was seeking agency budget information that the NRO refused to provide, withholding it under an intelligence agency exemption for "operational files." It was a dispute between a multi-billion dollar agency and an individual plaintiff (me) who was not even represented by an attorney. This was a perfect opportunity for a judge to display deference to an executive branch intelligence agency, particularly since there was no conceivable ideological or political incentive for the court to rule in my favor. But instead, Judge Walton denied the NRO's motion to dismiss the case, and he granted my motion to compel disclosure of the requested budget information. It was not the outcome that a cynic would have predicted.

My experience with Judge Walton may be exceptional. Or maybe not. One of the academic studies linked from the Times article to support the proposition that judges appointed by Republicans are more likely to rule in favor of the government actually reported that "even in the most controversial cases, Republican and Democratic appointees agree more than they disagree."

The practical lesson is that to focus on the membership of the FISA Court is probably not the best way to regulate the Court's conduct or to affect its performance. Assuming that there is only a limited amount of political energy available for addressing FISA policy, efforts to reform the Court would more profitably be directed toward declassification of Court decisions, and reconsideration of the statutory framework that the Court operates within.


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

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