award-winning investigative journalist, author and senior writer at The Intercept, a publication of First Look Media. He has just published a major report titled "Destroyed by the Espionage Act: Stephen Kim Spoke to a Reporter. Now He’s in Jail. This is His Story."
A new report by The Intercept tells the story of the Obama administration’s prosecution of former North Korea expert Stephen Kim for violating the Espionage Act. Kim is one of nine such cases under the Obama administration — twice as many as all previous presidents combined. The former State Department contractor was accused of discussing classified documents on North Korea with Fox News reporter James Rosen. Last year, he was sentenced to 13 months in prison. But Kim always maintained his innocence. During the year before he went to prison, he shared his story with The Intercept. Journalist Peter Maass of The Intercept details the prosecution of Kim in a new article out today, "Destroyed by the Espionage Act: Stephen Kim Spoke to a Reporter. Now He’s in Jail. This is His Story." We speak to Maass about Kim’s case and broadcast an excerpt of "The Surrender," a documentary that accompanies The Intercept’s report.
AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman. Over the past several years, Democracy Now! has closely looked at the government’s crackdown on whistleblowers, from Army Private Chelsea Manning to former National Security Agency contractor Ed Snowden to CIA analyst John Kiriakou. Well, today we bring you the story of another whistleblower, one whose case has received far less attention, the jailed former State Department analyst Stephen Kim. He’s currently serving a 13-month sentence at the Federal Bureau of Prisons in Cumberland, Maryland, for violating the Espionage Act by leaking classified documents on North Korea to Fox News reporter James Rosen.
Journalist Peter Maass of The Intercept details the prosecution of Kim in a new article that’s just out today headlined "Destroyed by the Espionage Act: Stephen Kim Spoke to a Reporter. Now He’s in Jail. This is His Story." In a few minutes we’ll be joined by Peter Maass. But first, this is an excerpt from The Surrender, a new short film that accompanies the report on The Intercept's website. It's directed by Stephen Maing and produced by Peter Maass and Laura Poitras, director of Citizenfour, the Oscar-nominated film about Ed Snowden. This clip begins with Stephen Kim.
STEPHEN KIM: In June 2009, I had a new life ahead of me. I had recently gotten married, and I was about to go work for the secretary of state on foreign policy and national security. I had no inkling that the dark clouds would suddenly be appearing.
NARRATION: In the spring of 2009, State Department analyst Stephen Kim was introduced to Fox reporter James Rosen. The meeting was arranged by the State Department’s Bureau of Public Affairs.
STEPHEN KIM: I remember meeting him right outside the State Department. You know, it’s just like when you first meet. We talked about many things—Pakistan, the Iranian Revolution, the nuclear fuel cycle. He didn’t know about South Korea, let alone North Korea. So I had to explain like the basics.
STEPHEN KIM EMAIL: To: James Rosen. I am new to this. Do you have any good suggestions on things you might be interested in doing? [Stephen Kim]
JAMES ROSEN EMAIL: To: Stephen Kim. I’d love to see some internal State Department analyses about the state of [North Korea’s] nuclear program. [James Rosen]
JAMES ROSEN: As a reporter, I will always honor the confidentiality of my dealings with all of my sources.
BILL O’REILLY: Yeah, sure.
JAMES ROSEN: That’s it.
BILL O’REILLY: And if you don’t do that, you’re no longer a reporter. And you’re one of the best.
NARRATION: After several meetings, James Rosen published an article about North Korea that referenced parts of a classified government report.
LIZ WAHL: Well, starting off this hour, another name has been added to the list of people charged under the Espionage Act.
MICHAEL ISIKOFF: Stephen Kim was one of the U.S. government’s top experts on North Korea. He’s now facing trial and 15 years in prison for allegedly leaking classified information to a Fox News reporter, a charge Kim adamantly denies.
NORAH O’DONNELL: Fox News reporter James Rosen reporting back in 2009 that North Korea would respond to sanctions with more nuclear tests.
JON STEWART: That’s it? That’s the leak they needed to quash? North Korea answers everything with more nuclear—what? That’s—they a nuclear test-based economy!
STEPHEN KIM: I did not consider the conversation to be so memorable or so blazened in my mind that it was because of that conversation that these things are happening.
ERIC BOLLING: We’re now learning the Obama Justice Department invoked the Espionage Act, one of the most serious wartime laws in America, to justify its investigation.
ABBE D. LOWELL: The Espionage Act is this 100-year-old statute. It was passed as a result of World War I to address spying, but it is the principal tool the government uses to go after both real spying and for somebody like Stephen Kim, who’s accused of having a conversation with a member of the media.
AMY GOODMAN: That’s the attorney Abbe Lowell.
REPORTER: This administration in the last four years has prosecuted twice as many leakers as every previous administration combined. How does that reflect balance?
PRESS SECRETARY JAY CARNEY: The president firmly believes in the need to defend the First Amendment and the need in—you know, for reporters to be able to do their jobs.
NARRATION: The Fox reporter James Rosen was named in court documents as a co-conspirator in violation of the Espionage Act. But he was not indicted.
MICHAEL ISIKOFF: Court records obtained by NBC News show that in their efforts to convict Stephen Kim, prosecutors obtained phone and cellphone records of Fox News journalists.
NORAH O’DONNELL: The FBI naming Fox News chief Washington correspondent James Rosen a criminal co-conspirator in the leak.
NARRATION: James Rosen declined to be interviewed.
ABBE D. LOWELL: One of the disconnects about this case is that here he is somebody who’s been accused of a national security offense, and I can assure you that Stephen always thought, in all of his work, that his job was to help make the United States stronger.
STEPHEN KIM EMAIL: Call me idealistic or radical but I refuse to play this game that deeply undermines our national security.
STEPHEN KIM EMAIL: James, I was thinking that perhaps it would be good for you to write a longer piece on why the Intelligence Community got so many things wrong about North Korea. Just a thought–... Stephen.
JAMES ROSEN EMAIL: Dear Stephen, The only way to do this is to EXPOSE the policy, or what the North is up to, and the only way to do that authoritatively is with EVIDENCE. Yours faithfully, James.
ABBE D. LOWELL: When a reporter is dealing with somebody who could be exposed for what the reporter is doing, it comes with a degree of responsibility. But this was information out there in the world in nonclassified sources that you could google and learn without it being classified.
NARRATION: In February 2014, after fighting charges for four years and depleting his life savings, Stephen Kim accepts a plea deal.
STEPHEN KIM: Probably the toughest decision that I’ve had to make in my life was to plead guilty. It went against every fiber of my being to give up the fight.
YURI LUSTENBERGER-KIM: As the family spokesperson, I would like to make a short statement. The government’s prosecution, which started in 2010, has taken a horrific toll on my brother and our entire family. His life has been in limbo for the past four years. There will be difficult months and years ahead, but we look forward to Stephen returning to our embrace soon.
NARRATION: On April 2, 2014, Stephen Kim is sentenced to 13 months in prison. He must report to prison when notified by the government.
STEPHEN KIM: The culture in Washington is pretty cutthroat, pretty ruthless. And maybe it’s because of my academic background, I thought that my intelligence assessments would pierce through the politics. I guess I’m naïve. I was about to go to the policy planning staff, working under Hillary Clinton. Basically, the style and thrust of my analysis has always been, the way we analyze a country like North Korea, that everybody says is unknowable, needs a reassessment. And to me, that all came down to how the United States understands how another nation thinks. And we can’t view that through our lens. There’s a term for it. It’s called mirror imaging. "Well, I would do it this way, so therefore they must do it that way." I think that’s—that’s not very helpful. And if abused, that can be actually quite dangerous.
AMY GOODMAN: Jailed State Department whistleblower Stephen Kim in an excerpt of the film The Surrender, which was produced by The Intercept. You can go to their website to see the full video; it accompanies a major new report by Peter Maass of The Intercept. His report is called "Destroyed by the Espionage Act: Stephen Kim Spoke to a Reporter. Now He’s in Jail. This is His Story." You’ll hear that story when we come back with Peter Maass. Stay with us.
AMY GOODMAN: As we continue looking at the case of jailed State Department whistleblower Stephen Kim, we’re joined by Peter Maass, a senior writer at The Intercept. His new article just out today is titled "Destroyed by the Espionage Act: Stephen Kim Spoke to a Reporter. Now He’s in Jail. This is His Story."
Peter Maass, welcome back to Democracy Now! You’ve been on this story for a while now. You actually accompanied Stephen Kim on his journey to jail, where he sits right now. But let’s go back, and you tell us the whole story. What happened to Stephen Kim? Who was he? How did he end up at the State Department?
PETER MAASS: Well, Stephen Kim was a expert on North Korea. He worked at the Lawrence Livermore National Laboratory, which is where the nuclear weapons in the American arsenal are designed and where they’re analyzed. So he was privy, when he was there, to some of the kind of deepest, most sensitive secrets of all. And then he became an official at the State Department working as an expert on weapons of mass destruction, in particularly North Korea. And in 2009, he was introduced to James Rosen of Fox News by John Herzberg, who is an official, actually, a press official, at the State Department. And they were introduced in order to talk. And they talked about all kinds of things—Pakistan, North Korea, etc.
AMY GOODMAN: Now, this is extremely important. Kim didn’t reach out to Rosen. It was the State Department press person who got Kim in touch with Rosen, is that right?
PETER MAASS: Exactly. And this is one of the—it’s not an irony. It’s one of the kind of tragedies of this case, is that Stephen Kim ended up being prosecuted by the FBI and the Department of Justice for talking to a reporter whom Kim had been introduced to by another arm of the government—that is, the State Department’s press office. So—
AMY GOODMAN: And talk about where that first meeting took place. What did Herzberg set up?
PETER MAASS: What Herzberg set up was this kind of, you know, very ordinary, by Washington standards, meeting, first meeting between a journalist and a State Department official. It took place outside of the State Department. Again, this is arranged by a State Department official. Because Herzberg, as, you know, a kind of savvy press official does, knew that it wouldn’t be so good for this first meeting to take place in Kim’s office—it was in a very sensitive area, everybody would have to put away their classified documents, etc.—not so good to have them meet in the cafeteria—whatever other journalists and other people would see, etc.—so Herzberg arranged for them to go outside of the State Department and meet in a park right outside of the State Department.
AMY GOODMAN: Meet in a park?
PETER MAASS: Meet in a park right outside the State Department, which is what they did. And they—
AMY GOODMAN: And Herzberg was with them?
PETER MAASS: And Herzberg was with them, and Herzberg introduced them. "Stephen Kim, this is James Rosen. James Rosen, this is Stephen Kim. I think you guys have a lot to talk about." First meeting, 10 minutes, they just exchanged pleasantries, etc. Another—and again, "irony" isn’t quite the right word with this, but later on, when Stephen Kim had this one conversation with James Rosen that is the subject of the Espionage Act prosecution, they left the State Department and talked outside of the State Department, and the FBI portrayed this fact, that they left the department in order to talk, as something very suspicious, that they were doing something that they weren’t supposed to do, even though that precise act of leaving the State Department to talk is what they had done the very first time when they were introduced by a State Department official.
AMY GOODMAN: In fact, Stephen Kim was not used to speaking to reporters. He was asking the State Department for guidance on why he should be doing this.
PETER MAASS: Stephen Kim was very—had very little experience dealing with reporters, basically had not talked to any American reporters, had talked to some Japanese reporters that had been sent—brought into his office somewhat recently before this. He was interested, he told me, in talking to a reporter and asked for suggestions from Herzberg, and Herzberg suggested James Rosen. Kind of unusual for a State Department official, press official, to kind of first go, perhaps, to Fox News, which isn’t loved in the State Department, which isn’t loved in the Obama administration. But the bureau where Stephen Kim worked, which was in charge of basically seeing that—making sure that arms control agreements were complied with, was kind of a redoubt of hardliners. And Herzberg himself, actually, had donated to the Bush-Cheney campaign, etc., so he had some sympathies and had a friendship with Rosen. And so, the decision was made Rosen would be the person that Kim would be introduced to. And that decision was made by Herzberg.
AMY GOODMAN: And so, take it from there. What happened next?
PETER MAASS: That was in the spring of 2009, and they continued talking on their own, without Herzberg or anybody around. And then, on June 11, 2009, Rosen calls Stephen Kim, calls him a number of times. And then they leave the State Department building once in the morning, and they go out and talk, and then they come back in. And then Stephen Kim looks at—back at his office, at a classified—a new classified government report on North Korea. And then they go back outside again, Kim and Rosen, having arranged to do so. And they talk for—maybe it was 15 minutes, something like that. Kim goes back into the office.
Three hours later approximately, Rosen publishes a story on the Fox News website that says, according to a new classified report, North Korea—U.S. government report, North Korea is planning, in response to the United Nations sanctions, to detonate another nuclear weapon, etc., etc. And that report, the classified report that Rosen’s story was based on, and Rosen’s story itself, is the subject of the Espionage Act prosecution, because the government contended that this was classified information, harmful to national security, and Stephen Kim leaked it to James Rosen.
The curious thing about this whole prosecution is, A, no document ever changed hands. The government never accused him of actually providing a document. It was just a discussion about a document. And then one of the things that I found out in the course of reporting this story, going through, for example, this very kind of lengthy court docket that a lot of people hadn’t looked at, is that the FBI interviewed government officials about what happened and about the report, and one of these government officials told the FBI, "This classified report that they talked about, it’s a nothing burger." That was the phrase that was used, a "nothing burger." This is what an official told—
AMY GOODMAN: A nothing burger.
PETER MAASS: And another official said, about the Rosen story, about this nothing burger of a classified report, said that the report, Rosen’s report, was nothing extraordinary. So, the government even had people that it interviewed inside of the government who were saying, "Look, this report wasn’t a big deal." Now, of course, there were people in the government who thought it was a big deal.
The biggest problem for Kim, though, I think—and this kind of came out in the course of the reporting—was that his timing was terrible, because he talked to Rosen at a time when the Obama administration had pretty much had it with leaks and had decided, unlike previous administrations—and all administrations, they don’t like leaks, unauthorized leaks. Official leaks, that’s fine, they help the administration, it’s for PR purposes. Unofficial ones that they don’t control, they hate. The Obama administration, in contrast to the ones that preceded it, decided to use the Espionage Act to prosecute people who leaked, who talked without authorization to reporters. And Stephen Kim happened to be a person who talked to a reporter without authorization about a subject that the government did not find very flattering.
AMY GOODMAN: Well, he had original authorization.
PETER MAASS: Well, he had original authorization to talk with Rosen, exactly. There wasn’t explicit authorization for him to go out and talk to Rosen about this particular report. So that was kind of a slight distinction there. But his timing was terrible, because that story, the Rosen story, came out just at the moment when the Obama administration, when Dennis Blair, as head of national intelligence, was looking it over and saying, "We’ve got to stop this. We have to prosecute people. We need to," as Blair told The New York Times later on, "hang an admiral, make an example of somebody." And Stephen Kim popped up onto the radar screen right then.
It was very unfortunate for him that Rosen, unfortunately, had not been terribly careful in his contacts with Kim. So, for example, when the government decided, like, "OK, we’re going to investigate this leak," it was very easy for them to figure out where Rosen got it from, because Rosen had used his phone at the State Department—he was a State Department reporter then—to call Stephen Kim several times that day. He had used his cellphone to call Stephen Kim several times that day. They left the building at the same time. They returned at basically the same time. So, for the FBI, you don’t have to be a very good FBI agent to figure out very quickly who James Rosen talked to, who had access to that report. And they zeroed in on Stephen Kim quite immediately. And then they found a series of emails that Rosen had sent to Stephen Kim asking Kim for internal documents from the State Department. Case closed. I mean, not case closed, but that, for the government, was the entire case, basically.
AMY GOODMAN: We’re talking to Peter Maass, an award-winning investigative journalist, author and senior writer at The Intercept, who has just published a major report headlined "Destroyed by the Espionage Act: Stephen Kim Spoke to a Reporter. Now He’s in Jail. This is His Story." So let’s take it from there. Talk about how Stephen Kim was first approached by the FBI, questioned, and what happened next.
PETER MAASS: This is one of the many surprising things. The FBI came to him in his State Department office, and they told him they were there to talk about an investigation. Stephen Kim did not know what the investigation was. And they asked him a lot of questions, and some of the questions were about the story that Rosen had reported. They didn’t tell him that he was the target of the leak investigation. He didn’t know at the time, when he was first talking with the FBI, that he was the target. They did not tell him that. And that was, in some ways, what at least Stephen Kim’s lawyer refers to as kind of a perjury trap—not in those precise words, but basically that—
AMY GOODMAN: And this is Abbe Lowell, who is—
PETER MAASS: This is Abbe Lowell, who’s—
AMY GOODMAN: —a well-known attorney, who even represented President Clinton.
PETER MAASS: President Clinton during his impeachment hearings, exactly. He regards it as something close to a perjury trap, wherein the FBI—and this is something the FBI has done and law enforcement does quite frequently. They go to suspects, interview them very casually, don’t tell the suspects, "You’re actually the target of our investigation," and they get the suspects sometimes to not tell the entire truth, because the suspects don’t know that they’re under investigation, that it’s a big deal, etc. And so, Stephen Kim, when the FBI first came to him, didn’t tell the entire truth. He said, "Well, I’ve only met James Rosen once. I wouldn’t talk to him about, you know, anything else, and I never talked to him again," which was not true. If he had known that he was the target of an investigation, he would have probably lawyered up, and he would probably have been very careful about what he said.
When the FBI came to him the second time, which was about nine months later, then they kind of laid down everything they had. They said, "You’ve broken the Espionage Act. There’s a body of work," is the phrase that they used, according to Stephen Kim. They threatened him with multiple counts of the Espionage Act. And this was in August of 2010 that he was finally indicted under one count of the Espionage Act and one count of lying to the FBI. That was 2010.
He decided to fight against the government, and for four years he fought. And he got Abbe Lowell, who’s a very good, but very expensive, lawyer to take his case on. It cost millions of dollars, only part of which actually Stephen Kim could afford to pay. And it took everything out of him. And this is one of the things that to me was—I guess it’s not surprising, because we’ve seen this happen. But when the U.S. government goes after somebody, and goes after somebody in what the government considers a high-priority case, it has virtually unlimited resources. And the effect that this had on Stephen Kim was to deplete his life savings, deplete his family’s life savings. His marriage broke up. His young son had to move away. He contemplated suicide. And he talked to me about this. You know, when you’re kind of accused of basically—of espionage, which is what the name of the act is, your entire reputation is shot even before you have the first chance to stand up in a court and say, "I’m innocent, and this is why." And he googled how many sleeping pills it would take to kill himself. He thought of jumping in front of a train, not because he was guilty, but because he was innocent and didn’t feel that he would be able to get a fair trial, that he would end up spending many years of his life in jail.
AMY GOODMAN: And so, then explain what happened, how this was, if you could call it, resolved.
PETER MAASS: Well, basically, not long before the trial was scheduled to start, the government made an offer to Stephen Kim’s lawyers, which was that he would have to spend a slightly modest amount of time in jail—and it ended up being 13 months—plead guilty to the Espionage Act violation, but—
AMY GOODMAN: This was after they had said he was threatened with 30 years, then he should serve seven years to a plea agreement—
PETER MAASS: Right.
AMY GOODMAN: —and now it’s down to 13 months.
PETER MAASS: Exactly. And this is—I mean, this is, you know, often a process where the government kind of threatens to throw the book at somebody unless they plead guilty, and it creates an enormous amount of pressure. And Stephen Kim compared himself—or, didn’t compare himself, but said that he really understood, for example, what happened to Aaron Swartz, Aaron Swartz being the brilliant computer programmer who was accused, after having downloaded academic articles from a commercial database, accused of computer crimes that would have landed him in jail, the government was saying, for, I think, more than a decade or something like that. And it was a terrible burden for Aaron Swartz to take, and he ended up taking his own life. Stephen Kim came very close himself to that. The government doesn’t only crack down on leakers and whistleblowers. It cracks down really on—very strongly, on anybody who disseminates data beyond the borders that the government deems appropriate, whether it’s corporate or government data.
And so, for Stephen Kim, it became a kind of—he described it to me as like a brutal calculus: "OK, if I plead guilty and get 13 months in jail, that’s it. I’ll be out, maybe after good behavior, after 11 months. If I take this to trial, if I go to trial, I could end up in jail for 12 years. It will be another million dollars in legal fees that I don’t have the money to pay for. Which is the better route to go?" And he took the route of pleading guilty and taking the 13-month sentence.
AMY GOODMAN: And what happened to James Rosen, the Fox reporter?
PETER MAASS: He is a very well-known Fox reporter still. He’s based in Washington.
AMY GOODMAN: He was under investigation.
PETER MAASS: Yeah, well, James Rosen—and this is one of the aspects of the case that got actually more attention than what happened to Stephen Kim, is what happened to James Rosen, which is, the government, in order to acquire emails, James Rosen’s emails, more than they actually already had, they applied for a search warrant. And in the search warrant, they referred to Rosen as a potential co-conspirator in violating the Espionage Act. They accused him of basically kind of being this minstrel who was trying to operate, aspiring with Stephen Kim collecting data, and maybe unnamed other people collecting data. Rosen came that close to being indicted himself. When this was revealed, that the government, A, called him an unindicted co-conspirator, and, B, got his cellphone records, got his emails, tracked his physical movements, when this was finally revealed—and this came out in 2013—it was a huge controversy in the press, because it was taken, legitimately so, as an attack on the freedom of the press, that you—
AMY GOODMAN: You had James Rosen at Fox and James Risen at The New York Times.
PETER MAASS: Yes, it can get confusing at times.
AMY GOODMAN: Different stories.
PETER MAASS: Different—very different stories and very different journalists, but there was something very similar in both of their cases, which is that the force of the government was brought to bear on journalists in order to connect them to crimes or get them to talk about alleged crimes.
AMY GOODMAN: And meanwhile, Stephen Kim continues to serve this 13 months in jail in Cumberland, Maryland.
PETER MAASS: He is in jail.
AMY GOODMAN: That does it for the show. Peter Maass, award-winning investigative journalist, we’ll link to his piece at The Intercept called "Destroyed by the Espionage Act: Stephen Kim Spoke to a Reporter. Now He’s in Jail. This is His Story."