Espionage: Now, with No Damage Envisioned

A recently unsealed decision from Colleen Kollar-Kotelly just changed the interpretation of the Espionage Act for Washington DC to cover leaks that wouldn’t even harm the US.

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.

Imagine how this ruling could empower prosecutors in the AP UndieBomb 2.0 investigation, in which the AP’s story reported only that the US had thwarted an UndieBomb plot. They didn’t report it until after the White House said they had cleared up a sensitive issue relating to the plot (which in practice ended up being the drone death of Fahd al-Quso).

This would make it easier for the government to prosecute AP’s sources for leaking information that even the government had suggested, to the AP, wouldn’t harm US interests.

And of course, all that builds on top of the now routine treatment of leaks to the press as Espionage, something fairly unusual before the Obama Administration.

Frightening.

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6 replies
  1. thatvisionthing says:

    “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…

    Question. Could Judge Colleen McMahon have declined to follow the prior court’s decision when she decided against the ACLU in their Awlaki FOIA suit, even though she wrote in her opinion that, btw, droning Awlaki was illegal four ways?

    https://www.emptywheel.net/2013/02/17/colleen-mcmahon-the-covert-op-that-killed-anwar-al-awlaki-was-illegal/

    Colleen McMahon: I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret.

    […] In other words, McMahon takes a 5-page detour from her work of adjudicating a FOIA dispute and lays out several reasons why the Awlaki killing may not be legal.

    Trying to figure out why a judge can’t do something about a crime in progress, even if she’s seeing it as only connected to the case before her. Her ruling against the ACLU aided and enabled Obama’s past and continuing targeted assasination crimes. You thought she had to do it because a prior court had ruled against a similar FOIA. So is that constraint out of the way now, now that Kollar-Kotelly has shown the way? Could McMahon or the next judge now follow the precedent of not following precedent?

    (Isn’t it against the law to cover up a crime with a law? State secrets doctrine is inherently illegal because there is no protection against its being used that way? Could McMahon have said that? It needs to be said.)

  2. Scott Lazarowitz says:

    Pretty soon the entire WH Press Corps will be in jail merely for reporting the latest news from Washington. Some of it COULD be damaging to poor little bureaucrats’ sensitivities (including these loony-tunes judges).

  3. TarheelDem says:

    Impeachment for violating her oath to protect and defend the Constitution would be in order were it not for a dysfunctional Congress that fundamentally agrees with her.

    Is this another Federalist Society judge? Where is she coming from, besides prosecutorial expediency, with this ruling?

  4. thatvisionthing says:

    I miss Jefferson.

    “The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no God. It neither picks my pocket nor breaks my leg.” ~ Thomas Jefferson

  5. Chris Harries says:

    “Pretty soon the entire WH Press Corps will be in jail merely for reporting the latest news from Washington.”

    That would be terrible.

  6. Chris Herz says:

    The Espionage Act of 1917 was designed to give government the power to suppress Irish Americans, Jewish Americans and German Americans, none of whom had any love for the Entente. It was also used successfully to stamp out the Socialist Party of that day whose candidate had made a respectable showing in Election 1912. It was never used against any real German spies.

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