The Intercept
February 18, 2015
ON THE MORNING of June 11, 2009, James Rosen stepped inside the State Department, scanned his building badge and made his way to the Fox News office in the busy press room on the second floor. It was going to be a hectic day. Like other reporters working the phones that morning, Rosen was looking for fresh news about the latest crisis with North Korea.
Two weeks earlier, North Korea had conducted a nuclear detonation that showed the rest of the world it possessed a functioning bomb. The United Nations was on the verge of a formal condemnation, but no one at the U.N. or inside the U.S. government knew how North Korea’s unpredictable regime would respond and whether things might escalate toward war.
Rosen called Stephen Kim, a State Department expert on rogue nations and weapons of mass destruction. Kim, a U.S. citizen who was born in South Korea, spoke fluent Korean and had worked at one of America’s nuclear-weapons labs. He probably knew more about what was going on in Pyongyang than almost anyone else in the building.
The call, according to metadata collected by the FBI, lasted just half a minute, but soon afterward Kim called Rosen and they talked for nearly a dozen minutes. After that conversation, they left the building at roughly the same time, then spoke once more on the phone after they both returned.
A classified report on North Korea had just begun circulating, and Kim was among the restricted number of officials with clearance to read it. He logged onto a secure computer, called up the report at 11:27 a.m., and phoned Rosen 10 minutes later. A few minutes past noon, he left the building again, and a minute later Rosen followed. The destruction of Kim’s life would center on the question of what the two men discussed during that brief encounter outside the State Department.
Kim returned to the building at 12:26 p.m., but Rosen lingered outside to make calls to colleagues at Fox News — to lines for the network’s Washington bureau chief, as well as a vice president and assignment editor. Back inside, Rosen called the bureau chief’s line again, and then an official at the National Security Council. Around 3:00 in the afternoon, with typos that suggest it was written in haste, Rosen posted a story on the Fox News website under the headline, “North Korea Intends to Match U.N. Resolution With New Nuclear Test.” It said the U.S. government, in its latest intelligence assessment, believed U.N. sanctions would trigger retaliatory actions from North Korea, including another detonation.
As news goes, Rosen’s story wasn’t, in fact, much of a scoop. It merely confirmed the conventional wisdom of the day. According to court documents, one State Department official described the intelligence assessment as “a nothing burger,” while another official said Rosen’s story had disclosed “nothing extraordinary.” But the article had a seismic impact in another way. It occurred just as the Obama administration was intensifying its effort to crack down on leakers and whistleblowers; the FBI soon launched an investigation. Because Rosen used phones that were easy to trace and twice left the building at the same time as Kim, it was simple for the FBI to zero in on whom he talked with that day. Before long, Kim, who had worked as a civil servant since 2000, was being threatened with decades in prison for betraying his country.
Five years later, on April 2, 2014, I sat in a half-empty courtroom in Washington, D.C., and watched as Kim pleaded guilty to one count of violating the Espionage Act. He was the latest victim in an unprecedented crackdown on leaks; so far, the Obama administration has prosecuted more than twice as many leak cases under the Espionage Act as all previous administrations combined. Kim was dressed in a dark suit, white shirt and blue tie. His manner that day revealed nothing, at least on the surface, of how his life had unravelled in the past five years — the broken marriage, the young son who lived far away, the life savings that were now depleted, and the profound struggles with depression and thoughts of suicide.
I first spoke with Kim at the end of 2013. Until the summer of 2014, when we said goodbye at the entrance to a federal prison in Cumberland, Maryland, we met from time to time, mostly at the small apartment where he lived in northern Virginia, until his lease expired and he moved into a spare room in an apartment that belonged to a friend of a friend. He told me as much of his story as he was able to tell, with a caveat set by his lawyer: he could not discuss the details of his decision to accept the plea deal or the specifics of his conversations with Rosen on that June day in 2009.
UNTIL THE FBI knocked on his door in the fall of 2009, a little more than three months after Rosen’s story was published, Kim was a rising star in the intelligence community and a remarkable immigrant success story. After earning a Ph.D. in history from Yale University, he started his career at the Center for Naval Analyses, followed by four years at Lawrence Livermore National Laboratory, which designs and analyzes nuclear weapons. It didn’t take long for him to attract attention. The intelligence community has a lot of experts on nuclear programs and a lot of experts on North Korea, but few who had Kim’s expertise in both. Kim was even summoned to Washington to give a classified briefing to Vice President Dick Cheney and National Security Adviser Stephen Hadley.
He then landed a job at the Pentagon’s Office of Net Assessment, a legendary internal think tank for incubating new ideas about military policy, and in 2008, he was tapped as the senior intelligence adviser in the State Department’s Bureau of Verification, Compliance and Implementation (VCI). His work there was complex: essentially, he needed to know as much as it was possible to know about programs to develop weapons of mass destruction that threatened the United States. His first performance evaluation described him as “an invaluable asset” and praised him for possessing a “unique nexus of expertise.” It concluded by saying he was making “outstanding contributions to the development of U.S. national security policy.” He was slated for promotion to the Policy Planning Staff, which provides advice directly to the secretary of state.
Yet as he rose through the government’s ranks, Kim was troubled by U.S. policy toward North Korea. Though born in Seoul in 1967, long after the Korean War, he had lost a grandfather in the conflict and was acutely aware of the pain North Korea inflicted on his family and on South Korea as a whole. He felt that the moderate policies pursued by both the Bush and Obama administrations — the endless negotiations and sanctions — only served to embolden the North Koreans. In one of his few public talks, in 2006, Kim laid out his hard-line view, saying, “I know I am going to be accused of being a warmonger … but diplomacy, if not backed by the possibility of force, is very, very empty.”
In February 2009, Kim sent a blunt email to a government colleague about his concerns: “I am SERIOUSLY considering resigning from this entire USG business,” he wrote. “I cannot seemingly affect change from within … and so perhaps it is best to do it from the outside. Call me idealistic or radical but I refuse to play this game that deeply undermines our national security. I am confident enough to call these people out as idiots who know nothing about Korea or Asia. If there is an opportunity, I will leave …”
Two months later, he wrote another colleague about his assessments of Stephen Bosworth and Sung Kim, the top State Department officials dealing with North Korea. Both were well known in policy circles and had worked on North Korea for years; Sung Kim was born in Seoul and moved to the U.S. as a teenager. Stephen Kim’s opinion of them was scathing, however. “Wasn’t too impressed,” he wrote. “Knew it already but confirmed beyond certainty after the meeting. They just don’t know North Korea or the North Koreans.”
There is a time-honored way in government for mid-level experts to convey their worries that high-level officials are misguided — they talk to reporters to raise an alarm outside the walls of whichever department they work for. This is why confidential conversations in Washington seem to take place in parks and restaurants and store aisles as much as they do in actual offices. These conversations can serve as a check on the official statements that portray prevailing policies as wise and successful, even when they are not.
Unlike many government officials, Kim had very little experience interacting with journalists. He didn’t know whom to talk to until John Herzberg, who was in charge of public affairs at the VCI, arranged for him to meet Rosen.
Like the Obama administration in general, the State Department is not especially friendly with Fox News. But the VCI was, at the time, something of a miniature fortress of hard-liners within State, and Rosen was popular there. He had been on particularly good terms with Paula DeSutter, a conservative Republican who headed the bureau during the Bush administration. DeSutter talked with Rosen from time to time and even went as his guest to the White House Correspondents’ Dinner.
Rosen also had a good relationship with Herzberg. Public affairs officials tend to keep their views to themselves, but Herzberg had donated to the Bush-Cheney campaign, and had signed a letter of support for John Bolton, the neoconservative who became ambassador to the U.N. during the Bush administration. Over just a few months in 2009, Herzberg and Rosen exchanged more than 100 emails.
Herzberg was one of the State Department’s designated traffic cops for organizing (or quashing) meetings between officials and journalists, so his involvement gave an official blessing to Kim’s relationship with Rosen. This would later make the FBI’s pursuit of Kim seem a bit odd — one arm of the government was prosecuting an official for speaking with a reporter whom another arm had arranged for him to meet. Herzberg had also decided that the introductory meeting with Rosen would take place outside the State Department — the type of encounter that the FBI later portrayed as suspicious.
HERZBERG KNEW THAT Rosen couldn’t casually drop by to say hello to Kim at his office; it was located in a secure area to which outsiders were a noticeable imposition, because secret material had to be stored safely and classified discussions had to cease. And so on a March day, Herzberg and Kim left the State Department and headed toward an adjacent park, where Rosen was waiting for them. They made small talk for the next 10 minutes or so. Rosen has a “wicked sense of humor,” Kim told me, and the tenor of their initial encounter was friendly and non-political. “It’s not like I started describing my ideas on the future of Asia,” he recalled. “We didn’t talk about fissile material.”
After that introduction, Kim and Rosen talked on their own. They discussed a variety of topics, Kim said, including Pakistan and its nuclear program. “He wanted to know about the basics of nuclear weapons design. I said, ‘Don’t ask me, I’m not a physicist.’ But he just wanted the basics, so I told him.”
Rosen, a Watergate aficionado who worked for 17 years on a book about John Mitchell, Nixon’s attorney general (his first draft was 500,000 words long), seemed to enjoy playing the role of stealthy reporter. In an email he sent on May 20, Rosen instructed Kim to use a special code to manage their meetings. The code was simple: one asterisk in a blank email meant they should meet or talk on the phone, two meant they should cancel a scheduled encounter. The problem, of course, was that by explaining the code in an email, Rosen disclosed it to anyone who might obtain the email, as the FBI did.
Rosen’s behavior was often careless. As a Reuters columnist would later write, teenagers practice better tradecraft when deceiving their parents. His antics made the FBI all the more suspicious of his relationship with Kim. In its filings with the court, the prosecution used the asterisk email as evidence that Kim engaged in a secretive relationship with Rosen, though the prosecution did not offer any evidence Kim ever used the code.
When contacting Kim, Rosen mostly used a Gmail address apparently named after Alexander Butterfield, an obscure White House official who was the first to tell Congress about the Nixon-era taping system. He sent emails to a Yahoo account Kim had established under the name Leo Grace. This, too, was a detail prosecutors portrayed as sinister, though it’s not unusual for government officials to use private email accounts, and Kim’s had been created long before, when he was corresponding with a woman whose Zodiac sign was Leo and who had described him as graceful — hence, Leo Grace.
Rosen made no secret of his desire for sensitive information. He ended the May 20 email by saying, “With all this established, and presuming you have read/seen enough about me to know that I am trustworthy … let’s get about our work! What do you want to accomplish together? As I told you when we met, I can always go on television and say: ‘Sources tell Fox News.’ But I am in a much better position to advance the interests of all concerned if I can say: ‘Fox News has obtained …’”
Here, Kim revealed his lack of sophistication in dealing with the media.
“I am new to this,” he replied. “Do you have any good suggestions on things you might be interested in doing?”
Two days later, on May 22, Rosen asked for an array of sensitive information that would likely be classified. His wish list was no different from what many journalists would want from a source, but most would know better than to ask in writing, since soliciting classified information can be illegal and can get sources in trouble even if no information is provided. In the government’s view, Rosen’s email on May 22 constituted “instructions” for Kim to “gather intelligence” and supply it to Fox.
“Thanks Leo,” Rosen began on May 22, using his codename for Kim. “What I am interested in, as you might expect, is breaking news ahead of my competitors. I want to report authoritatively, and ahead of my competitors, on new initiatives or shifts in U.S. policy, events on the ground in North Korea, what intelligence is picking up, etc. As possible examples: I’d love to report that the IC [Intelligence Community] sees activity inside DPRK [Democratic People’s Republic of Korea] suggesting preparations for another nuclear test. I’d love to report on what the hell Bosworth is doing, maybe on the basis of internal memos detailing how the U.S. plans to revive the six-party talks (if that is really our goal) [the six parties he refers to were North Korea, South Korea, the U.S., China, Russia and Japan]. I’d love to see some internal State Department analyses about the state of the DPRK HEU [Highly Enriched Uranium] program, and Kim’s health or his palace intrigues … In short: Let’s break some news, and expose muddle-headed policy when we see it — or force the administration’s hand to go in the right direction, if possible. 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, Alex.”
Rosen’s email helps explain the part of the case that has received the most media attention: in 2013, the court unsealed a prosecution document that described Rosen as a potential “co-conspirator.” The document, an affidavit in support of a search warrant to Google demanding access to Rosen’s Gmail account, revealed that the government had tracked Rosen’s movements on June 11 and had obtained records of his phone calls and some emails. There was widespread condemnation from the media about what seemed to be a profound violation of First Amendment protections for a free press. This came as the Department of Justice was continuing to threaten the New York Times reporter James Risen with a jail sentence if he refused to identify one of his sources (last month, the Justice Department announced it would not prosecute Risen), and it came just a few days after news broke that the government secretly had obtained the records of more than 20 Associated Press phone lines as part of an investigation into the source of an AP terrorism story. The government responded to the outcry by promising that Rosen would not be prosecuted, and that the seizure of reporters’ emails and phone records would be done with greater care in the future.
“I could have been a little more careful looking at the language that was contained in the filing that we made with the court — that he was labeled as a co-conspirator,” Attorney General Eric Holder said.
The government made no suggestion in its key filings that Kim responded to Rosen’s May 22 email — and the Department of Justice refused to answer any queries from The Intercept about the case. These were particularly busy days for Kim — the global crisis was intensifying every day, culminating on May 25 with North Korea conducting an underground nuclear test, just the second in its history. The White House was gravely weighing what could or should be done to punish North Korea and stop its weapons program. The next day, May 26, Rosen frantically tried to contact Kim, placing seven calls in a few hours. Getting no reply, he sent a plaintive email.
“Is the honeymoon over already?” he asked. “Thought we would have much to discuss today.”
As the crisis intensified, Kim’s frustration also heated up. He emailed a State Department colleague to complain about the reaction to a note he had written promoting the value of intelligence gleaned from North Korean defectors. None of the officials who received his note had responded to it. Forwarding it to his colleague, Kim wrote, “I am giving this to you … to underscore my point that 99% of the people don’t care and don’t know … That is why I say it’s not worth it. They [the officials] really don’t know anything.”
Others in the State Department might have been wary of venting to Rosen, whose eagerness and carelessness were a perilous combination. But Kim didn’t sense this. According to phone records, the two men had a 20-minute conversation an hour after Rosen’s pleading email. And when Rosen called on June 11, Kim called back.
AS A PRESIDENTIAL candidate, Barack Obama promised that his administration, in contrast to that of George W. Bush, would be the most transparent in U.S. history. Once in office, however, he veered in the opposite direction. Rosen’s story had the misfortune of being published just as the administration was nearing its breaking point on leaks.
Jeffrey Bader, who was the senior director for East Asian affairs at the National Security Council, recalled that the day Rosen’s story was published, he and other senior officials at the White House discussed it. “I was annoyed, and I remember others were annoyed,” Bader told me. There were two problems: first, that Rosen’s story contained information that was also contained in a classified intelligence report; and second, that the story was published within hours of the report being circulated. “It was regarded as a serious breach,” Bader said.
Around that time, Dennis Blair, the president’s director of national intelligence, reassessed the government’s approach toward leaks. Blair asked the Justice Department for a list of officials who had been prosecuted for leaking. He was surprised by the result — of 153 referrals to the Justice Department in the previous four years, not a single person had been indicted. That scorecard, Blair later told The New York Times, “was pretty shocking to all of us.” A decision was made to start going after indictments. “My background is in the Navy, and it is good to hang an admiral once in a while as an example to the others,” Blair told The Times. “We were hoping to get somebody and make people realize that there are consequences to this and it needed to stop.”
On September 24, two FBI agents were escorted into Kim’s office, three-and-a-half months after his fateful conversations with Rosen. He apparently hadn’t thought those June 11 conversations were problematic — next to the phone on his desk he had put a handwritten note with the numbers for Rosen’s BlackBerry and office phone.
The men sat closely together in Kim’s office. It had no windows and no couch, and was crowded with three computers (for unclassified, secret and top secret material), as well as a refrigerator-sized safe for storage of computer drives and documents.
The agents were friendly, Kim recalled. They asked him to sign a document stating he was aware they were conducting an investigation — though Kim told me that neither the form nor the agents mentioned that he was the target. They asked about his background, about his family, about his colleagues. They asked about the Rosen story, and whether he had met Rosen, but their questions were polite and sprinkled in a conversation about a number of things, none of them adversarial.
“It wasn’t like suddenly they came in and, boom, laid it on me,” Kim said. “They did not say, ‘We are investigating a leak.’ They did not say, ‘We are investigating you.’ … I didn’t know why they were there.”
Kim had fallen into a trap the FBI uses to squeeze information out of unwitting suspects. It is called “non-custodial questioning,” which can involve law enforcement agents visiting suspects at their home or workplace and disguising, through friendly questions, the fact that they are under investigation. The suspects are not read their Miranda rights, warning that anything they say can be used against them in a court of law.
Kim, in particular, was predisposed to trust the agents. He was a conservative, straight-laced government employee, raised in an immigrant family. “To automatically give trust to the police or to government authority is not a conscious thing, it’s almost ingrained in me,” he told me in March, at his lawyer’s office in downtown Washington. It was raining outside, and the grim weather matched his mood. “Maybe you’d call that naïve, but that’s the environment in which I grew up … If a policeman stops me on the street for no reason, my natural instinct is to give them what they want.”
In addition to yielding more testimony than might be offered after a suspect has been read his or her rights, non-custodial interrogations can serve another purpose — they encourage lies. When FBI agents don’t let on that you are a suspect, you may be more inclined to tell a fib. After all, why admit to an indiscretion that the agents don’t seem aware of? The problem is that lying to an FBI agent is a crime — another charge added to an indictment you are not aware is being prepared against you.
According to notes written by one of the FBI agents, Kim said he met Rosen in March, but that he hadn’t met him again and wasn’t a source for the June 11 story. According to the agent’s account, Kim also said, “I wouldn’t pick up a phone and call Rosen or Fox News.”
Of course, the FBI knew Kim had talked with Rosen on June 11 — that’s why they were interviewing him. It is one of the ironies of the case that an expert on one of the most devious regimes in the world was a naïf when it came to recognizing the trap his government was setting for him. Kim had no idea that in the month leading up to the cordial FBI visit, his office had already been searched.
By the time the FBI agents left his office, Kim apparently realized something was afoot. According to a document the FBI submitted to the court, after the meeting Kim logged onto his Yahoo account and called up emails he had exchanged with Rosen. The next day, he told the FBI that his Yahoo account was full and that they should email him at a Gmail account.
If Kim’s intent was to make it less likely that the FBI would learn about his contact with Rosen, it was too late. What took place during the FBI’s announced visit is a source of exasperation for the lawyer Kim eventually hired, Abbe Lowell.
“He was asked questions that were, for all intents and purposes, a setup,” Lowell told me. “The government already knew that Stephen had had a conversation with the media. They already knew that he had had access to the information that they believed to have been classified. They were basically setting him up, to see if they couldn’t get him on another charge.”
Lowell mentioned an old adage about criminal defense lawyers.
“Many of them have a fish that they mount on the wall,” he said. “These lawyers put a plaque under the fish, and in words or effect that plaque will say, ‘If I hadn’t opened my mouth, I wouldn’t be hanging here today.’”
IN THAT SAME month of September 2009, Kim was called into the office of his new boss, Rose Gottemoeller, who had replaced DeSutter after Obama’s election. Kim had spent the morning chasing after some intelligence for her, and he assumed she wanted an update. But the moment he walked into her office and saw that her chief of staff was also there, he knew something was off. As Kim recalled, Gottemoeller didn’t look him in the eye as she told him he was being let go due to a budget shortfall.
Kim recalled that he asked her if he had done something wrong, and she told him no. After a few awkward minutes, Kim left the office. His promotion to the Policy Planning Staff was gone, too. He was still an employee of Livermore — his job at the State Department was technically a second appointment — so he moved to the lab’s satellite office at L’Enfant Plaza while he looked for a new position in Washington.
He didn’t know it, but he was becoming more of a marked man with each passing day. In December 2009, the Justice Department came under new pressure to crack down after a closed-door hearing in which leaks were criticized by members of the Senate Select Committee on Intelligence, chaired by Sen. Dianne Feinstein. As Dennis Blair told The Times, “We had to do 50 push-ups and promise to do better.”
Despite the sustained crisis around North Korea and Kim’s unique expertise, he was turned down everywhere he applied. After a few months, he finally landed a position at the Defense Threat Reduction Agency, a little-known Pentagon think tank. It was not the center of the action, but it was something.
He was living a booby-trapped life, however. Relieved to have found a job, he went to South Korea on vacation with his new wife (at the time, his ex-wife lived in California with their son). When he returned home, he was pulled over by a customs agent at the airport and grilled about his trip.
“I’ve never been called aside for inspection in all my travels,” Kim told me. “The customs officer who pulls me over doesn’t check my bag or my wife’s bag. He asks me all these questions. When did you leave? Why were you there? Did you speak to South Korean officials? What did you talk about? At a certain point, I started getting a little bit upset.”
Two days later, on March 29, 2010, Kim got a call from an FBI agent, who asked to talk again. Kim agreed, but said his new office in L’Enfant Plaza did not have a secure room. The agent told him to meet at the Department of Energy building around the corner.
“They were all friendly,” Kim recalled. “They were like, ‘We just want to ask you some questions, follow up on this and that.’”
They went to the basement of the building, to what’s known as a Sensitive Compartmented Information Facility (SCIF), where classified information can be discussed without fear of eavesdropping. The windowless room where he was questioned had a table and a few chairs.
Shortly after they sat down, Kim said, the smiles disappeared. The agents accused him of leaking classified information to Rosen. It wasn’t just one leak, though; according to Kim, they said he had leaked “a body of work” and had intentionally divulged classified information on multiple occasions.
Kim became visibly agitated as he described the scene of this interrogation. He got restless in his chair. He leaned forward, his voice became louder, and he thumped the table in front of him as he skipped from one part of the interrogation to another.
The agents demanded to search his condo in McLean, Virginia. Kim said they told him that if he refused, they would get a search warrant.
“It was surreal,” Kim told me. “What are you supposed to feel? You don’t feel anything. You’re dumbfounded.”
We had been talking for more than three hours at his lawyer’s office. Outside, the sky was turning dark. Kim paused for a while, struggling to find the right words to describe his shock over the FBI’s accusations.
“Have you ever been hit really hard, like playing sports, or you ran into a pole, or somebody hit you?” he finally asked. “At first you don’t know what hit you. You’re kind of stunned. It doesn’t even hurt in the beginning … When somebody gets shot, unless you have had the experience of being shot, you don’t know that you’ve been shot. It’s not like in the movies. That’s the closest analogy I can come up with. I didn’t know what was happening.”
When the interrogation inside the SCIF was over, Kim left and got into his car. He didn’t want his wife to be around for the search, so he called and asked if she would run some errands. When he arrived home, he noticed a man loitering in the hallway, apparently a federal agent; his home was already staked out. The agents who had interrogated him soon arrived, along with four more men in casual clothes. They scoured his home for several hours, confiscating computers, opening books to see if anything was hidden inside, going through drawers and kitchen cupboards. According to Kim, the agents repeatedly challenged him with the same question: “Where is the document? You stole a document. It’s in your possession.” One of the agents, apparently frustrated that they weren’t discovering anything, used a phrase that Kim interpreted as a racial slur, referring to him and other Asian-Americans as “you people.” (The government denied this exchange took place.)
Kim’s wife showed up in the middle of the search.
“She doesn’t know what’s going on and she’s offering them drinks,” Kim recalled, shaking his head. “This is how stupid we were.”
Even at this stage, with the FBI turning over his house, Kim didn’t comprehend the full scope of what he was facing. He asked the FBI agents whether he needed a lawyer, and when they said they could not provide advice on that, he let them continue. It wasn’t until a few days later, in another secure room, that he finally understood the calamity that was upon him. Along with a lawyer he belatedly contacted, he met a team of prosecutors from the U.S. Attorney’s Office who told him that the government planned to charge him with multiple counts of violating the Espionage Act. He faced decades in prison.
IN THE 1970s, when Kim was bullied at grammar school for being a skinny Asian kid named Jin-Woo who knew only a few words of English, the same person always came to his rescue — his older sister, Yuri. She would run down the hallways of their Bronx school, shouting at the boys ganging up on her brother and beating them off if necessary. Unschooled in the language or culture of their newly adopted country, Stephen and Yuri were inseparable. They read the same books that Yuri brought home from the library, they skipped together to McDonald’s when they had spending money, they passed summer days at the pool in their apartment complex.
Both children excelled academically. Stephen earned a spot at Fordham Prep, an elite private school, and Yuri attended Bronx Science, one of the most competitive public schools in the city. Yuri went on to earn a law degree from Georgetown University and became a corporate lawyer. Stephen got his undergraduate degree from Georgetown and a master’s degree from Harvard before heading to Yale for his Ph.D.
Yuri is more openly emotional than her brother. When we spoke last April at Stephen’s apartment about the early days of the case, she clasped her hands on her chest and occasionally closed her eyes, as though reliving the ordeal. She spoke quietly and intensely. She was at her job in Zurich, where she lived with her husband and two children, when she heard her brother was in trouble.
“My brother tried to explain, saying, ‘The government came to me and said I did something. I’m meeting with Ruth, the only lawyer I know in town … But I don’t know what’s going on. They want to send me to jail for 30 years. They said I did something back in 2009. And the FBI guys were here last weekend.’ ”
“Are you a spy?” she asked her brother. “What did you do? What’s happening?”
She immediately booked a flight to Washington, then she went on a Googling binge, searching “Espionage Act,” “Valerie Plame,” “Judith Miller” — anything that might be related to Stephen’s predicament. Before she got on the plane, she had read every case study she could find on espionage.
Kim had noticed that men in unmarked cars had been trailing him to work and parking outside his building at night. (He didn’t know at the time that the government had a code name for him — Lemon Shark.) He warned Yuri that she would likely be followed once she landed at Dulles.
“That was my first taste of, ‘Oh, my God, whatever is happening, it’s involving the U.S. government,’ the most powerful, most tenacious, most resourceful government,” Yuri said. “And if they’re after my brother, then this is really, really bad news.”
Kim, who’d been sitting silently next to Yuri as she recounted those early days, finally spoke up. “I didn’t have the wherewithal to Google anything,” he said. “Everything was just a blur … I compare it to losing all five senses at the same time. You don’t see anything, you don’t smell anything, you don’t hear anything. Nothing. That’s the only way I can describe it.”
Yuri said Stephen was a shell of a man in those early days after he’d been accused. Before dinner one night, she found him sobbing, crying out that his life was destroyed. She worried that her brother might harm himself. At one point, she tried to make light of it as they stood on the terrace of his 19th-floor condo.
“It’s going to be a really painful fall,” she told him. “Call me before you do it. I’ll talk you out of it.”
“It’s got to hurt when you land,” he replied.
After devoting more than a decade of his life to preventing North Korea from building a nuclear arsenal, he was now accused of helping Pyongyang. How could he live with the stain of what his government accused him of doing? Espionage. What could he say to his young son? To his elderly parents?
“Every single day, I thought about killing myself,” Kim said.
He went online to find out how many sleeping pills or Tylenol he would need to swallow to end his life. He considered jumping in front of a train, because that would be quick. He made plans for letting people know he had committed suicide, deciding that he would send a note to a friend and explain that it should be opened on a certain day; inside he would place his house and car keys.
“It’s a ruthless calculus — you don’t think like a normal person,” Kim told me. “I’m not proud of it, but I’m not ashamed of it, either. Why should I be? Have you gone through what I have? If not, then don’t judge, don’t cast a stone.”
Looking back, Kim felt a kind of dark kinship with Aaron Swartz, the brilliant computer programmer who committed suicide after prosecutors threatened a lengthy prison term for his unauthorized downloads of papers from an academic database. The Justice Department doesn’t just react harshly to unauthorized releases of government data. These priorities are controversial, of course, because young computer hackers and dissenting government officials have received much harsher treatment than corrupt bankers or tax-evading corporations.
Kim talked for a while about Swartz, and about the particular psychic strain that has to be endured when you feel the government’s fist brought down on you. “I know exactly what happened to him,” Kim said. “They threw the kitchen sink at the boy.” He talked about his own struggle: “The only thing I had to think about was how to survive day to day. What do I have to do every single day to be sane.”
We were sitting in the living room of his rented apartment in northern Virginia. “I do believe that nothing meaningful is really ever learned in the absence of suffering,” he said. “But, boy, to gain that meaning — ”
Kim is well-versed in theology, and he mentioned the intellectual history of suffering and the idea that a person can become purified through struggle and pain. “But for the person going through the suffering, it doesn’t seem that pure,” he added.
AFTER THE SEARCH of his McLean home, prosecutors offered Kim a quick deal in which he would accept a sentence of about seven years. If he refused, he could face a 30-year sentence at trial. For a defendant facing indictment, the decision to fight is not just moral or legal. It is also largely financial. Private attorneys are expensive, especially if a case is complicated and long, and as with this one, the government is prepared to invest a lot of resources in it. When Kim was indicted, the opposing bench included three prosecutors from the Department of Justice’s National Security Division.
Kim turned to Abbe Lowell, who had recently defended a lobbyist against an Espionage Act charge and who had a string of other high-profile cases. Lowell had argued on behalf of President Clinton during his impeachment hearing in the House of Representatives, and had defended John Edwards in his corruption trial, Gary Condit in the Chandra Levy case, and even Sean Combs in a voting rights case.
Even when sitting in the quiet of his office, Lowell gives the impression of a taut spring that may uncoil at any moment. He understood that Kim’s case could go on for years and that Kim would not be able to pay for it, but he took it on because he believed it involved a decent American fighting an indecent crackdown. It was, he said, a case of “a person who needed a lawyer and an issue that needed a defense.”
But the legal bills would be substantial. Kim depleted his bank accounts. His parents sold their retirement house in South Korea. Yuri drained her savings. Every time the government refused to provide classified material that might exonerate Kim, the matter had to be argued before the judge. Brief after brief had to be filed. The case would cost millions before it concluded.
Stephen and Yuri set up a defense fund and solicited contributions from friends and supporters. They sold personal belongings — furniture, watches, jewelry. Not even a year into it, they were running out of money. Lowell agreed that once the funds were gone, further costs would be covered by his firm, Chadbourne & Parke. In the end, the firm absorbed more than $1 million in unpaid legal fees.
“I told Abbe, ‘This is everything we’ve got,’” Yuri said. “So I want your moral promise that you will defend my brother to the fullest of your abilities … You’re part of our lives. My brother holds onto your legs for his life, and so do I.”
When Kim’s parents visited Washington and met Lowell, Kim’s mother broke into tears, clasping the lawyer’s hands in supplication.
“Please save my son,” she pleaded.
ON APRIL 5, 2010, WikiLeaks released a cockpit video taken from an American helicopter gunship in Iraq that showed the killing of at least 12 people. The video had been provided to the whistleblowing group by an Army private, Bradley Manning (who later switched gender and became Chelsea Manning), and was part of a trove of Pentagon and State Department files that WikiLeaks would publish about the Iraq and Afghan wars.
The Obama administration, facing what it feared might become a hemorrhage of secrets by anyone with access to a government database — not an unfounded fear, as the 2013 purloining of National Security Agency documents by Edward Snowden would later demonstrate — moved swiftly against leakers in its path. Manning was charged under the Espionage Act; a grand jury was convened to consider charges against WikiLeaks founder Julian Assange; and Snowden, too, of course, would later be charged under the law. The administration instituted an aggressive “Insider Threat Program” to find leakers before they leaked. And it decreed last March that members of the intelligence community needed authorization to talk with reporters even if their conversations were not about sensitive matters. If an intelligence official bumps into a reporter at the gym, it apparently must be reported to her superiors.
“For many years, we had achieved what seemed like a state of equilibrium, in which a certain type of leaking was understood and tolerated,” said Steven Aftergood, who directs the Project on Government Secrecy at the Federation of American Scientists. “I date the collapse of that equilibrium to WikiLeaks, because it was such a departure in magnitude and consequence from the norm. It triggered a response of unusual severity.”
Kim was among the first victims, and his prosecution revealed that the technologies that enable large-scale leaks are also the government’s most formidable weapon for striking back. With a few clicks by a systems administrator, or a subpoena to a phone company or web firm, the government can figure out who talks to whom and when, who emails whom and what they write, or who enters and leaves a building and when they do it. When there is metadata, there is no need for informers or tape recordings or confessions.
The FBI was able to acquire Kim’s phone records, Rosen’s phone records, their emails, security badge records for the State Department building, even records of the precise moments Kim accessed the North Korea intelligence report on his office computer. The assemblage of electronic data showed when and where and for how long Kim and Rosen talked, though not what they talked about. This attests to the power of metadata — to indict a suspect under the Espionage Act, the government doesn’t need to prove what he said in a particular conversation on a particular day, just that he talked or met or left the building at a particular time. Kim’s lawyer highlighted this in a brief to the court: “The government has not produced any email, text message, or recorded conversation documenting the contents of any communication [on June 11] between Mr. Kim and Mr. Rosen.”
It didn’t matter.
In the summer of 2010, after the FBI searched his home in McLean — finding no classified documents or incriminating evidence on his computers — Kim was in California working on unclassified projects at Livermore (the job he had lined up at the Pentagon think tank was gone). As the WikiLeaks disclosures played out on the front pages of The New York Times and the Guardian, the government moved swiftly ahead with its prosecution. Lowell called Kim near the end of August to say the government was going to charge him unless he agreed to plead guilty.
Kim made hasty farewells to his son, who was 10 years old at the time and living nearby with Kim’s ex-wife. They didn’t tell him why Kim was leaving so suddenly. Though a press blitz was inevitable once the indictment was announced, Kim hoped his son could be shielded from it.
The next days in Washington were a flurry of meetings and phone calls with prosecutors. To avoid a trial that could be unpredictable for both sides, they tried to hammer out a plea deal, haggling over the length of Kim’s sentence and what he would plead guilty to. Two counts or one count? Disclosing sources and methods? Less than a year or more than a year?
“I felt like chattel,” Kim told me. “Like in The Merchant of Venice, how much for the pound of flesh?”
The calculus on taking a plea often has little to do with guilt or innocence. One consideration is the judge. Kim was not lucky on this — the judge he had drawn, Colleen Kollar-Kotelly, had served for seven years as the head of the secretive Foreign Intelligence Surveillance Court, which in her tenure had rarely denied or limited government requests for surveillance by the NSA.
The prosecution was not going to back down, but neither would Kim. On Aug. 27, while eating lunch at the Tysons Corner mall, his phone rang. The negotiations had deadlocked, Lowell told him. Lowell’s instructions were blunt: “Shower, shave, put on your best suit and come down to the court by four, because they’ve decided to indict you.”
The next hours were a montage of humiliation. Walking up the courtroom steps as photographers jostled to take his picture, going before the judge to be charged with one count of violating the Espionage Act and one count of lying to the FBI, being led out of the building in handcuffs, put into the back of an FBI vehicle, fingerprinted at a nearby station, having his shoelaces removed, and being locked up until bail was posted. In his solitary holding cell, Kim was less than 2 miles from the office where he had briefed Vice President Cheney.
Kim’s wife had gone to South Korea to stay with her family. His marriage had fallen apart, too.
LOWELL’S LEGAL STRATEGY had many prongs, the most important of which was simple: Was it possible that other officials had talked to Rosen about the classified information in the story? He made a series of discovery requests to find out how many officials had access to the report (the number turned out to be at least 168) and whether any of them spoke with Rosen. Just as the FBI had used email and phone records to connect Kim to Rosen, Lowell asked for the phone and email records of the 167 other officials.
As it turned out, on the day Rosen’s story was published, a Fox correspondent, Major Garrett, emailed then-Deputy National Security Adviser for Strategic Communications Denis McDonough to say he would receive “a call or an e-mail from a trustworthy colleague, James Rosen,” who had “some very good stuff on North Korea and would like some NSC guidance.” Two minutes later, McDonough replied via email, “Got it.” About 10 minutes after that, Rosen called an NSC number used by McDonough and several other senior officials, including John Brennan, a counterterrorism adviser at the time (and now director of the CIA). Phone records show that someone called back from the NSC and talked to Rosen for several minutes. Mysteriously, the prosecution said that neither McDonough, nor any of the NSC officials interviewed by the FBI, recalled talking to Rosen.
The defense learned that in the time leading up to the story, Rosen exchanged dozens of emails with Herzberg, the public affairs officer who had introduced Rosen to Kim. Some of the emails covered “sensitive but unclassified” information, according to a court filing. Herzberg denied in his first interviews with the FBI that he had discussed sensitive information with Rosen. The prosecution also disclosed that Herzberg had sometimes used a private email account to communicate with Rosen.
Though not conclusive, this was tantalizing evidence to support Lowell’s argument that Kim was not the only official to talk with Rosen about the North Korea report, nor the only one to tell the FBI less than the entire truth at the outset of an interrogation, nor the only one to use a private email account to correspond with the Fox reporter. But Kim was the only one being prosecuted.
“There were a number of other people in the government that were talking that day about this subject matter,” Lowell told me. “The reason (Kim) got picked out of what I call the lineup is because once the leak occurred and the intelligence community decided to say this was a terrible, outrageous thing, and they demanded that somebody be found, it was possible to find Stephen and it wasn’t as easy to find others. The government could have found others, but having already vested their target to be Stephen, they never bothered.”
Kim had the particular misfortune of being a mid-level official. Senior officials tend to have powerful allies who can push back against the Department of Justice. This doesn’t always protect them — Scooter Libby, who was Vice President Cheney’s chief of staff, was convicted in 2007 of obstructing an investigation into the leak of a CIA agent’s name (though his sentence was later commuted by President Bush). But usually it helps. Top officials who have not been prosecuted for leaking include Leon Panetta, the former CIA director who, according to a report by the Defense Department’s inspector general, leaked the name of the SEAL commando who led the raid that killed Osama bin Laden. Another example is Gen. James Cartwright, who reportedly has been investigated as the source for a Times story on Stuxnet, but has not been charged.
And of course there is David Petraeus, the former CIA director and four-star general who is being investigated for leaking classified information to Paula Broadwell, his former lover and authorized biographer. According to recent press reports, lawyers in the Department of Justice have recommended that Petraeus be indicted, but there’s significant resistance because he is a popular figure with influential friends who have taken his side, including Sens. Dianne Feinstein and John McCain. While Kim sits in prison for talking to a reporter about a single classified document, Petraeus has not been charged for allegedly handing over multiple classified documents.
The problem was that Kim was an off-the-rack analyst on loan from one government entity to another, and the VCI, where he worked, was filled with hard-liners who were unloved by the rest of the State Department.
“He’s an easy target,” said Jim McNally, a verification expert who worked with Kim at the State Department. “A guy who doesn’t have a strong constituency behind him, and that can lead to problems.”
Still worse, Kim could no longer count on the support of the VCI, because DeSutter, who had hired him when she headed it, had left by the time the leak investigation began. Kim barely knew his new boss, the one who abruptly laid him off.
“If I had still been there, I would have protected him,” DeSutter told me. “I feel bad as an American, because I believe this is an injustice … I was interviewed by the FBI two separate times. I told them, ‘You have the wrong guy.’”
KIM’S EX-WIFE AND SON eventually moved overseas, and though it wasn’t because of Kim’s troubles, the move insulated them from the American news cycle. For a while, their son was kept unaware of exactly what was going on (even though the FBI had called him in 2011), but his mother later told him about it.
Kim’s son, whose name and location we are withholding because he is a minor, seems to have handled the fact of the accusations against his father as well as could be expected. He was visiting Kim during one of my trips to northern Virginia, and spent most of the time while I was there happily playing video games on a computer. The two of them talked easily and playfully.
A sense of their rapport emerges in the text messages they exchanged when Kim’s guilty plea was announced last year. Before the trial was scheduled to start, the prosecution offered a relatively lenient deal — just 13 months in prison for an Espionage Act violation, with the dropping of the charge that Kim had lied to the FBI. Rather than risk more than a decade in prison if he lost at trial, Kim accepted the deal.
“As you know I faced charges that I did something wrong,” he texted his son. “I fought for 4 years. At this juncture I faced a harsh choice to continue to fight and go to trial or to compromise. If I won at trial would be best. But if I lost I would have faced 15 years in jail.”
His son replied that his father was making the best choice, and in other exchanges told him that he was proud of him and that he wasn’t ashamed. Their exchanges have been reassuring, Kim told me, but he realizes kids can hide their true feelings from their parents.
“I don’t know how well he took it,” Kim said. “All I know is what I see in his text messages. I can’t see the emotions behind the words … I don’t know whether he’s masking his pain.”
It was not as simple to break the news to his father, who is 79 and lives in Seoul. So you are saying you are spy! he replied when Kim told him about the plea. If you pleaded guilty, that means you did it! Kim tried to explain the risk of losing at trial, but his father, who had sold his house to help pay the legal costs, was incensed. In response, Kim told his father that they were no longer father and son, and only after Yuri intervened to make peace between them did the two men talk again.
SO WHAT DID Kim tell Rosen? Was he guilty as charged?
He couldn’t give me any answers. Anything he said about his conversations with Rosen could get him into more trouble — a claim of innocence, for instance, would conflict with his plea agreement. Rosen refused to talk to me; he has only made a few comments about the case. “As a reporter, I will always honor the confidentiality of my dealings with all of my sources,” he said on “The O’Reilly Factor” in 2013.
I interviewed four people who worked with Kim in the VCI, and they all described him as a stickler when it came to handling classified data. Livermore, the lab where he worked earlier in his career, holds the most closely guarded secrets about the making of nuclear weapons. He did not have a reputation for indiscretion.
“That’s not how he ever was,” one of his co-workers told me, requesting anonymity because of ongoing work for the government. “He was very careful and thoughtful and followed procedures.”
One possible scenario is that Kim discussed information that was both in the intelligence report and in the public domain. The government puts a surplus of information behind its secrecy firewall; in 2012, the executive branch made 95 million “classification decisions,” according to the agency that tracks these things, and even President Obama has said that over-classification is a problem. The upshot is that it can be difficult for government officials to have useful discussions about policy without talking about something that is both banal and classified.
Kim suggested to the FBI that Rosen might have heard about the report from other sources, and that he, Kim, might have confirmed it or talked about it without intending to step over any lines. This scenario was sketched out in the prosecution’s own filings, one of which, recounting Kim’s second interrogation by the FBI, notes, “To be clear, the defendant denied that he was a source for Mr. Rosen or had knowingly provided Mr. Rosen with classified documents or information. Nevertheless, the defendant also told the FBI agents that he may have ‘inadvertently’ confirmed information that he believed Mr. Rosen had already received from other individuals.”
The article that Rosen ended up writing suggests why Kim might have discussed those intelligence issues with him. By predicting that North Korea would lash out against new sanctions, the report confirmed his hawkish view that modest punishments are insufficient to make North Korea more pliant.
Rosen may have worsened Kim’s plight by framing the assessment in a sensational way. His story described “prized data” that the CIA had just learned and was urgently providing to the White House. The story neglected to mention that nearly everything in the assessment had already been discussed in the media. In an April dispatch from its official news agency, North Korea itself had said that it would take the actions that, two months later, the CIA breathlessly warned it would take. Rosen’s story also said the intelligence was based on “sources inside” North Korea — this could have angered the intelligence community, because sources and methods are particularly sensitive issues — but there was no detail.
Indeed, the banality of Rosen’s story prompted dumbfounded articles with such headlines as, “How the World’s Dullest Story Became the Target of a Massive Leak Investigation.” Jon Stewart, host of “The Daily Show,” mocked the government’s case. “That’s it?” he said. “That’s the leak they needed to quash? North Korea to answer sanctions with more nuclear tests? North Korea answers everything with more nuclear! They have a nuclear-test-based economy!”
AFTER HE WAS SENTENCED in April, Kim had to wait three months for the Bureau of Prisons to tell him where to report. It was an odd purgatory — a government that had threatened to put him in prison for decades didn’t seem to care about him serving time once it had reaped the publicity of a guilty plea on an Espionage Act charge. And Kim, after years of fighting to stay out of jail, wanted to go to prison as soon as possible, so that he could get on with his life.
When I visited him in April and May, there were surprisingly few things in the small apartment he was renting in Reston, Virginia. Clothes, dishes, sheets, books — everything was being sold, given away or put into storage as his incarceration neared. He mentioned that he had a picture from the day he briefed Cheney. I asked if I could see it, and he brought it up from the basement. I looked at it for a while, Kim and the vice president going over documents about North Korea. When I asked whether I could make a copy, he waved at the picture abruptly.
“Take it,” he said. “Take whatever you want.”
Kim’s pain emerged in flashes like this. Most of the time he was adept at hiding behind a self-protective dry humor. At lunch with a few of his supporters after he was sentenced , he joked that he could write a memoir entitled, “From Yale to Jail.” When someone asked what he would do after getting out, he wisecracked, “Welcome to McDonald’s. Would you like to supersize your order?” This wasn’t too far from the truth. To improve his odds for early release, he lined up two job commitments once he got out of prison — one was working in a Catholic church, the other was a job in a women’s beauty shop.
From the moment he arrived in New York City as Jin-Woo Kim, he had set to work on constructing a new self, becoming Stephen J. Kim, a successful immigrant with Ivy League degrees who advised the White House and was privy to some of the nation’s most sensitive secrets. Now, he told me, he had to deconstruct that identity.
“My reputation is gone,” he said over dinner at a Japanese restaurant in Reston. “I don’t have any power. I am not a human being. I am the property of the state.”
He picked up a plate and held it aloft. “I am like this,” he said. “I don’t have rights. There’s no Stephen Kim. It’s erased. I am prisoner number whatever.”
When the lease on his Reston apartment came to an end, he moved into a spare room in a friend-of-a-friend’s apartment. Then he had to move again, into another apartment — this one with a mattress on the floor and a lamp — belonging to another friend of a friend. Finally he received a call from an official in the corrections system. “We have your designation,” the official said. “You got the Cumberland camp.”
Cumberland, in western Maryland, had its share of famous inmates, including Bernard Kerik, the former New York Police Department commissioner, and the lobbyist Jack Abramoff. Kim’s lawyer had represented Abramoff, so they talked on the phone before he went in; among other things, Abramoff gave him advice on how to stay out of trouble.
A handful of Kim’s friends quickly arranged a farewell party at one of their homes. As Kim dined on what would be his last big Korean meal for a while — marinated beef, known as bulgogi, and kimchi, a spicy side dish — the dozen or so guests drank generous quantities of beer and whisky and watched fireworks explode overhead. Kim’s going-to-prison party coincided with the Fourth of July.
His last hours of freedom were restless, much of the time spent exchanging text messages with his son.
“Today is Sunday here,” he wrote. “It will be my last day and then I sleep and wake up real early around 4:30 and get ready to leave here at 6 am so that I can report to Cumberland by 10 am.”
His son responded with emoticons that showed tears streaming from an emoji’s face.
Kim texted a list of things to keep in mind.
“First, don’t ever get down,” he began.
Write lots of letters. Study hard and joyfully. Make good friends. Don’t lose hope.
He continued to text through the night.
“Don’t be sad.”
“Be a good man.”
His friends arrived at 5:30 in the morning. Kim dressed in a white shirt and beige trousers. One of his friends jokingly offered to swap shoes, because Kim’s loafers were nicer and he couldn’t wear them in prison.
The drive took about three hours, a journey through rolling farmland along stretches of two-lane roads. Kim barely talked. In Cumberland, they stopped at a café for breakfast. One of the friends, a Catholic priest, recited Psalm 31 before the omelets and pancakes arrived. A few more jokes were told — someone said they would all be glad to frequently visit the prison because there was a good public golf course nearby.
The prison camp, a few miles outside the town, has no barbed wire. It resembles, from the outside, a well-kept recreation center. Getting his first glimpse of his new home, Kim saw an inmate mowing a lawn on a small tractor. “I wish they’d give me that job,” he smiled.
The intake for new inmates was located in an adjacent medium security facility ringed with concertina wire. Pulling into its parking lot, the car stereo was playing classical music. Nobody spoke. Kim’s friends walked him to the entrance and said goodbye. There were no tears, no drama, just as he’d requested. Inside, a guard told Kim to take a seat. He waited to begin his new life as prisoner 33315-016.
