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Man charged with espionage uses First Amendment defense

February 5, 2011

The Reporters Committee for Freedom of the Press, 3 Feb 2011: A defendant charged with espionage for allegedly leaking “national defense information” to a news reporter has moved to have his case dismissed on First Amendment and other grounds.

Stephen Kim, a former foreign policy analyst for a federal contactor on detail to the U.S. State Department, was charged with espionage last summer. According to the Stephen Kim Legal Defense Trust website, Kim was charged with “illegally disclosing national defense information (classified information) to someone in the media” on Aug. 27, 2010. Reutersreported last year that Kim “was indicted for violating an espionage law barring disclosure of national defense information and lying to the FBI about his contacts with the reporter,” who is unidentified.

Kim filed several motions to dismiss charges against him Tuesday in the U.S. District Court in Washington, D.C. In a press release announcing the dismissal motions, Kim’s attorneys said that the motions “demonstrate that the prosecution of Mr. Kim — and other cases this Administration is bringing under the Espionage Act — raise serious issues about, and are not consistent with, the First Amendment and due process rights we hold so highly in our country.”

One of the arguments Kim’s attorneys made is that the prosecution violates the First Amendment by “prosecuting Mr. Kim for what would include oral conversations with a member of the press, without any proof that Mr. Kim handed over any document, stole any tangible report, or received any compensation or reward. Instead, the government seeks to make illegal mere oral conversations between a government official and a member of the press.”

The defense also seeks, among other things, to dismiss the Espionage Act charge under the due process and the treason clauses of the U.S. Constitution.

The defense argued that the prosecution violates due process because the Espionage Act “fails to provide sufficient constitutional notice to Mr. Kim that it was unlawful for him to verbally communicate information to the news media if that information was contained in or derived from a classified report.”

Separately, Kim’s attorneys also argued that the prosecution under the Espionage Act is an impermissible attempt to prosecute Kim for treason, without providing the constitutional protections afforded under the treason clause of the Constitution. “[T]he government has taken conduct it alleges to have injured the state and squeezed it into a successor statute that punishes treason under a different name, but without providing Mr. Kim with the substantive and procedural guarantees that he is entitled to under the Constitution,” the motion argued.

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