Korean-American analyst caught in Obama administration’s dragnet

Posted on : 2013-10-11 12:11 KST Modified on : 2019-10-19 20:29 KST
Current US government making excessive use of Espionage Act and leaving ruined careers in its wake

By Park Hyun, Washington correspondent

“U.S. intelligence officials have warned President [Barack] Obama and other senior American officials that North Korea intends to respond to the looming passage of a U.N. Security Council resolution this week . . . with with another nuclear test. . . . Pyongyang’s next nuclear detonation is but one of four planned actions the Central Intelligence Agency has learned, through sources inside North Korea, that the regime of Kim Jong-Il intends to take. . . .”

This report is from an online article posted on June 11, 2009, by James Rosen, a journalist with the US’s Fox News network, who claimed to have heard the information from an anonymous source. At the time, the UNSC was gearing up to pass a resolution sanctioning North Korea for its long-range rocket launch the previous April and second nuclear test the following month.

The gist of the report was that North Korea planned to take additional actions, possibly including another nuclear test or a launch of its Taepodong-2 missile, and that US intelligence authorities had been tipped off.

The UNSC did finally pass the resolution the next day on June 12. But none of the North Korean “plans” mentioned in the article came to pass, save for a short-range missile launch.

The article could have been written on the basis of false information, but it did change the life of one promising nuclear weapons and security expert.

In September 2009, around three months after the article appeared, FBI agents came knocking at an office in the US State Department belonging to Stephen Jin-Woo Kim. The Korean-American Kim, now 46, was working at the time as a senior intelligence aide in the department’s bureau for verification, compliance, and implementation. Affiliated with the Lawrence Livermore National Laboratory, a state nuclear research center, he was assigned to the State Department in 2008.

US investigators fingered Kim as the source for the article and began investigating him in a dragnet operation that gathered computer, phone, and email records and State Department visit information not just for Kim but for Rosen too.

In August 2010, Kim was indicted for violating the Espionage Act by allegedly leaking confidential national security information. The indictment charged Kim with “knowingly and willfully communicat[ing], deliver[ing] and transmit[ting]” information “the defendant had reason to believe could be used to the injury of the United States and to the advantage of a foreign nation.” If found guilty in court, he faced up to 15 years in prison.

The news came as a bolt from the blue for Kim, someone who prided himself on his commitment to the US’s national interest. He strenuously denied the accusations as the long legal battle got under way. It is still dragging on now, four years after the alleged security violation and three years after the indictment.

Speaking in an interview on Oct. 9 with the Hankyoreh’s Washington correspondent, Kim insisted that he “never did anything that would harm the US’s national interest.”

“I can’t understand why the Justice Department singled me out and indicted me for supposedly committing an illegal act,” he added.

Court records, along with Kim’s own account, raise several questions about the Justice Department’s investigation.

The first point has to do with allegations that the investigation was biased. At the time of Rosen’s article, more than 95 members of the US executive were known to have seen the intelligence in question. Rosen was also learned to have had a phone call with a senior official in the White House National Security Council just a few hours before it was published.

According to court records, a regular White House reporter from Fox News sent an email to then deputy National Security Adviser and current Chief of Staff Denis McDonough asking him to take a call that Rosen would be making, to which McDonough replied in the affirmative. Around 10 minutes after McDonough’s message, Rosen called a number that gave him access to McDonough. A conversation lasting several minutes ensued.

Later, McDonough told investigators he did not recall the conversation in question. According to the investigators, the number also connected with then counter-terrorism adviser (and current CIA chief) John Brennan and deputy National Security Adviser Mark Lippert (current Chief of Staff to Secretary of Defense Chuck Hagel), both of whom said they did not recall any conversation either. Kim’s attorney, Abbe Lowell, asked for their investigation records to be made public, a request the court recently granted.

“It’s turning out that a number of people talked to the media about the information,” Lowell said.

“I think the investigators were in too much of a hurry to focus on Stephen Kim rather than examining other possibilities,” he added.

“One factor may have been that it was easier to track someone like Stephen Kim that it would have been to go after a senior official.”

A second point has to do with the excessiveness of the investigation. Authorities took the unusual step of intercepting and examining a journalist’s phone and email records, characterizing Rosen as a “co-conspirator” in the Espionage Act violation in order to obtain a search warrant. At the time, no one had ever been charged with violating the Espionage Act for reporting confidential national security information in a news article.

After the case, and the Justice Department’s investigation of the Associated Press, became a major news story in the US, Attorney General Eric Holder announced internal guidelines in July preventing the request of a search warrant for ordinary journalistic activities. Under this rule, journalists could not be investigated on warrants issued for another party. If applied, this standard would have invalidated the use of such a warrant to examine Rosen’s telephone and email records.

A third point involves the overzealous application of the Espionage Act. The legislation dates back to 1917, when the US was involved in World War I, and was intended mainly to punish spying. At the same time, it also allowed for punishment of those who leaked confidential national security information to the outside, based on the argument that this compromised the national interest and aided the enemy. Indeed, this, not spying, was the charge leveled against Kim by the Justice Department.

It is common practice in Washington for senior officials to disclose information that is favorable to themselves to the press. Last year, the White House gave film producers access to confidential details about the killing of Osama bin Laden. The killing of Bin Laden is regard by President Barack Obama as a major achievement. Members of the Republican Party criticized the move as having been made to increase Obama’s chances of being reelected, but the Justice Department took no action. Meanwhile, human rights groups argued that if the Espionage Act is designed to punish leaks of confidential national security information to aid an enemy, then a number of senior officials should also be punished.

The irony is that the Obama administration, which was expected to make human rights a greater priority, has been more aggressive than past administrations in applying the Espionage Act to punish leaks. Kim’s is one of seven cases under the Obama administration in which individuals were indicted for violating the law - more than all previous administrations put together. Indeed, the law was virtually a dead letter before making a comeback under Obama. Some critics charge that the president launched the “War on Leaks” to quiet establishment concerns early in his administration that he would be “soft” on national security.

Thomas Drake, a former high-ranking executive at the US National Security Agency (NSA), was charged with leaking secret information in 2010 just like Kim.

An October Bloomberg article quoted Drake as saying, “The message to government workers seeking to expose waste, fraud and abuse is ‘see nothing, say nothing, don’t speak out - otherwise we’ll hammer you.’”

Drake initially faced charges that could have put him in prison for up to 35 years. In 2011, he reached a plea bargain with government prosecutors. In exchange for pleading guilty to having used a computer for private purposes - a misdemeanor count - he was released from custody and received just one year of probation.

While Drake was able to clear his name of most of the charges against him, he was not only left with overwhelming legal fees but also lost his job because of the stigma associated with the Espionage Act.

"I was essentially bankrupted, blacklisted and blackballed,” Drake said.

There is no way of knowing for certain why the Obama administration is relying more and more on the Espionage Act.

What is for certain, though, is the extremely great suffering of the people who are targeted by these investigations.

In the case of Kim, the investigation has left his marriage on the rocks and drove him from his job. Kim had to spend all the money he had saved to cover his ballooning legal bills. His parents even had to sell their house to help pay the legal fees. Now, he is reportedly on the verge of financial ruin.

Even so, Kim says that he will do whatever he can to find justice, no matter how difficult it may be.

 

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