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Showing Original Post only (View all)Fed Court: Just changed interpretation of Espionage Act to cover leaks that are NOT Harmful To USA [View all]
Court Eases Prosecutors Burden of Proof in Leak Cases
Espionage: Now, with No Damage Envisioned
By: emptywheel Monday July 29, 2013 10:21 am
A recently unsealed decision from Colleen Kollar-Kotelly just changed the interpretation of the Espionage Act for Washington DC to cover leaks that wouldnt even harm the US.
http://blogs.fas.org/secrecy/2013/07/prosecutors-burden/
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 Janes Defence Weekly. He was later pardoned by President Clinton.)
The Court declines to adopt the Morison courts 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 Court declines to adopt the Morison courts 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 APs story reported only that the US had thwarted an UndieBomb plot. They didnt 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 APs sources for leaking information that even the government had suggested, to the AP, wouldnt harm US interests.
- See more at: http://www.emptywheel.net/#sthash.uiSVTkkO.dpuf
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Fed Court: Just changed interpretation of Espionage Act to cover leaks that are NOT Harmful To USA [View all]
kpete
Jul 2013
OP
And people wonder why Whistle Blowers are now seeking political asylum elsewhere.
sabrina 1
Jul 2013
#56
One circuit disagrees with another and you think this means the Republic will
msanthrope
Jul 2013
#21
Wait a second--Stephen Kim is not press. He has no civil right to leak documents
msanthrope
Jul 2013
#65
Different circuits, different rulings. Let's hope there's an appeal and SCOTUS
msanthrope
Jul 2013
#19
As opposed the Rhenquist one? All the more reason make sure the person picking
msanthrope
Jul 2013
#68
What you've described is the reality of "system maintenance" JDPriestly. n/t
bobthedrummer
Jul 2013
#70
The government must be doing a lot of shit they really don't want us to know about.
winter is coming
Jul 2013
#24
And, look at these Rulings-A bit of a mixed bag with her. Wiki isn't always complete
KoKo
Jul 2013
#63
"This needs to be fixed NOW, because it sure won't get better under the next Republican executive."
Vanje
Jul 2013
#84
Since the executive branch uses the threat of prosecution under the Espionage Act to
JDPriestly
Jul 2013
#39
If it weren't for the Snowden case, would we even know about this now?
Waiting For Everyman
Jul 2013
#45
Well, yes. Jonathan Pollard is no less guilty because he gave material to an ally. nt
msanthrope
Jul 2013
#67
Requiring the Government to prove stuff is like UnAmerican and stuff.
kenny blankenship
Jul 2013
#87