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Search warrants questioned in Fox News leaks case

By Joe Johns, CNN
updated 9:49 PM EDT, Tue June 4, 2013
STORY HIGHLIGHTS
  • Lawyers for an ex-State Department contractor accused of leaks question search warrants
  • Abbe Lowell, lawyer for Stephen Kim, may ask judge to reject evidence collected as a result
  • Lowell, prosecutors also explained difficulties of getting declassified information in the case

(CNN) -- Lawyers for a former State Department contract worker accused of leaking national secrets to a Fox News reporter are questioning whether search warrants in the case were properly obtained and may ask a federal judge to throw out evidence seized with the warrants.

Also in U.S. District court Tuesday, the judge questioned prosecutors and the defense about the pace of the case against former State Department contractor Stephen Jin-Woo Kim.

One search warrant in the case has caused a major national controversy because in an affidavit, an FBI agent stated that Fox News correspondent James Rosen could be an "aider and abettor and/or a co-conspirator" in a crime. Rosen has not been charged.

Based on news reports, the Kim defense began questioning the warrants in the hearing Tuesday.

After the hearing, the United States Attorney's Office for Washington defended the warrants.

"The government has followed all applicable laws, regulations, and Department of Justice policies in this case. The government will respond to any legal motion if and when it is filed by the defense," the office said in a statement.

Prosecutors and the defense also explained to Judge Colleen Kollar-Kotelly that the process of declassifying information is likely to prolong the 2½-year-old criminal case.

Kim's lead lawyer, Abbe Lowell -- who has represented some of Washington's most famous defendants including former Sen. John Edwards and former "super-lobbyist" Jack Abramoff -- also tried to get more information to help his client. Much of the Kim prosecution until now has been shrouded under a veil of national security considerations, but Lowell argued for less secrecy and more openness in the handling of the case.

Lowell told Kollar-Kotelly that the intelligence community had imposed so many constraints on the flow of information that Lowell is not even allowed to utter the name of the reporter involved or the news organization because the government considers it classified information.

From the beginning, the identities of Rosen and Fox News have been associated publicly with the Kim case. An article Rosen wrote in June 2009 reporting that U.S. officials believed North Korea might test more nuclear weapons is understood to have been the initial news item that launched the investigation.

Lowell is seeking to get the government to determine whether hundreds of pages of information that may be relevant to the case will be kept classified or declassified.

"The (intelligence community) holds onto this information like it's diamonds and gold," Lowell said.

Prosecutors said they were in a difficult position because intelligence officials decide what information can be legally released. Assistant U.S. Attorney Jonathan Malis, the government's "leaks prosecutor," said in court that his team "doesn't have access to the information Lowell is seeking. It's not our choice."

U.S. prosecutors said it could take months for the intelligence community to sift through all of the information in the case that is potentially in dispute, if it's required. In cases involving classified information, courts must apply a law called the Classified Information Procedures Act or CIPA, which lays out a painstaking, multipart process allowing intelligence experts a chance to redact certain documents. This process must be completed before sensitive information may be introduced as evidence at trial.

Kollar-Kotelly said she was setting a trial date for next spring, but she told the lawyers she would prefer to start the trial in late November.

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