The lawyer for Stephen Jin-Woo Kim, a former State Department contractor charged with leaking top-secret information to Fox News, has accused the intelligence community of impeding his defense by slapping the "classified" label on hundreds of irrelevant and harmless documents.
Defense attorney Abbe D. Lowell told a judge in the U.S. District Court in Washington, D.C., Tuesday that, despite national headlines for the past two weeks, he and his team may be the only people who are not able to name the reporter who published the information (James Rosen) or his news outlet (Fox News), "because the government deems that classified."
Moments later, Lowell said it was "impossible" that all of the documents in dispute in the case deserved special protection because, he said, "it includes communication with Mr. Kim and his kid."
The prosecution of Kim for allegedly sharing a report with Fox News about North Korea's plan to conduct nuclear tests, has attracted new attention amid widespread complaints about the Justice Department's aggressive campaign against national security leaks.
Kim's case is still many months away from trial, lawyers said Tuesday, in part because of what the judge called the "glacial" pace of sharing information and in getting it declassified by the intelligence community.
Add another complication: Attorney General Eric Holder personally approved a search warrant for information from Rosen, the Fox reporter, that characterized him as a "co-conspirator." But after a media uproar, the Justice Department said it never had any intention of prosecuting him over the leak.
Lowell told the judge he was inspecting the materials about how the search warrants in the case were reviewed and approved, because there are indications that they might not have been approved properly. If so, Lowell said, he would be making a motion to suppress those materials.
The hearing put prosecutors from the U.S. attorney's office in Washington in something of a bind.
On the one hand, they indicated they are following directives from the intelligence community, which decides when information can be declassified. And on the other hand, they are fighting Lowell, one of the country's most prominent white-collar defense attorneys who in 2009 pressured the Justice Department to drop a separate leaks prosecution against officials at the American Israel Public Affairs Committee.
Assistant U.S. Attorney Michael Harvey said that for the past two years, they've tried to expedite information-sharing with defense lawyers in the case, which involved turning over more than 3,000 pages of files.
Pressed by U.S. District Judge Colleen Kollar-Kotelly, Harvey said, "I cannot say whether" all of the materials are properly classified.
"I understand counsel has to deal with various agencies we're calling the intelligence community," Lowell replied, "but they're not making it easy on any of us."