The defense lawyers involved in a leak prosecution in Washington are challenging the U.S. Justice Department's recent filing of confidential court papers in the case, saying that the government should be required to justify the secrecy.
Prosecutors handling the case against Stephen Jin-Woo Kim, a former State Department contractor who is charged with disclosing classified information to a reporter, recently filed court papers in the chambers of U.S. District Judge Colleen Kollar-Kotelly.
Kim's legal team, led by Chadbourne & Parke partner Abbe Lowell, are now urging Kollar-Kotelly to force prosecutors to explain why the defense lawyers in the case should be kept in the dark after more than two years of litigation.
"The adversary process is the cornerstone of the American system of justice," Lowell said in a court filing Monday. "Courts routinely disfavor ex parte proceedings, permitting them in only the rarest of circumstances."
Kim was indicted in U.S. District Court for the District of Columbia in August 2010 on charges he unlawfully disclosed national defense information to a reporter. Kim was a State Department contractor at the time of the alleged disclosure of classified information in June 2009.
David Kris, the former head of DOJ's national security division, said at the time that the case against Kim "should serve as a warning to anyone who is entrusted with sensitive national security information and would consider compromising it."
Lowell said DOJ lawyers have not provided the defense attorneys the nature of the secret filing to the judge. The defense lawyer noted that DOJ has over the past 22 months produced more than 3,000 pages of classified information to the defense attorneys, who have necessary security clearances to review the material.
"While defense counsel do not know the content of the government's motion, it is hard to imagine that the government can make such a showing in this case, in light of the classified discovery already underway for the past two years," Lowell said.
The prosecutors, including assistant U.S. attorneys G. Michael Harvey and Jonathan Malis, said Kim's trial is not likely to happen until 2013 given the "complexity and sensitivity" of certain issues.