Reality Winner Has Been in Jail for a Year, Her Prosecution Is Unfair and
Unprecedented
By Peter Maass, The Intercept
03 June 18
This is a tale of two defendants and two systems of justice.
Christmas was coming, and Paul Manafort wanted to spend the holiday with his
extended family in the Hamptons, where he owns a four-acre estate that has
10 bedrooms, a pool, a tennis court, a basketball court, a putting green,
and a guest cottage. But Manafort was under house arrest in northern
Virginia. Suspected of colluding with the Russian government, the former
campaign manager for Donald Trump had been indicted on a dozen charges
involving conspiracy, money laundering, bank fraud, and lying to federal
investigators.
A lobbyist who became mysteriously wealthy over the years, Manafort avoided
jail by posting $10 million in bond, though he was confined to his luxury
condo in Alexandria, Virginia. That's why, in mid-December, his lawyers
asked the judge to make an exception. Manafort's $2.7 million Virginia home
could not provide "adequate accommodations" for his holiday guests, some of
whom would have difficulty traveling because of health problems, the lawyers
stated. A day later, the judge agreed to the request. Manafort could have
his Christmas getaway in the Hamptons.
Hundreds of miles away, another defendant in an eerily related case was not
so blessed. Reality Winner, an Air Force veteran and former contractor for
the National Security Agency, was sitting in a small-town jail in
Lincolnton, Georgia. Arrested a year ago today, on June 3, 2017, Winner was
accused of leaking an NSA document that showed how Russians tried to hack
American voting systems in 2016. The alleged leak - Winner has pleaded not
guilty - came at a time when there was far greater doubt than now about
Russian attempts to tip the presidential election. Her case is related to
Manafort's in this sense: While Manafort is suspected of aiding the Russian
effort, Winner is accused of warning Americans about it.
As Christmas approached, Winner was going nowhere. Even though she has been
indicted on just one count of leaking classified information and faces far
less prison time than Manafort, the judge in her case decided she was a
flight risk and denied her bail. Winner spent the holidays at the Lincolnton
jail, which is smaller in its entirety than Manafort's Hampton's estate; its
exercise yard, hemmed in by razor wire, is shorter than Manafort's pool.
While Manafort was joined by his family, Winner was marooned with a few
other inmates. The only cheery news for her was that for the first time
since her arrest the previous June, she was able to eat fresh fruit, thanks
to a holiday donation from a local church.
I recently asked Winner's mother, Billie Winner-Davis, for an example of
what she regards as inequities in the government's treatment of her
daughter. She laughed and said, "Let's talk about Paul Manafort." On
December 17, Winner-Davis had turned on her television and learned of
Manafort's holiday plans. "We're celebrating because [Reality] got a
banana," Winner-Davis recalled. "He got to go to the Hamptons for Christmas.
And he's got multiple charges and could spend the rest of his life in
prison."
***
The U.S. government rarely acts kindly toward the leakers it chooses to
prosecute - unless they happen to be popular figures like David Petraeus,
the former general and CIA director who shared with his girlfriend several
notebooks filled with top-secret information; he was allowed to plead guilty
to just a misdemeanor charge. It was the Obama administration that ramped up
the prosecution of leakers, using the Espionage Act against eight of them.
But in most of those cases, such as the ones that involved conventional
leaks of single documents or names, the sentences were not long - about two
years - and the accused were not confined to jail before their trials.
It is far different in the Trump era. Not only has the president
consistently derided the press as enemies of the people, but he has also
pushed the Department of Justice to accelerate its crackdown on leakers.
Late last year, Attorney General Jeff Sessions proudly announced that the
DOJ was investigating three times as many leaks as in the Obama era. Earlier
this year, the release of memos written by former FBI Director James Comey
showed that leaks were a topic of his talks with Trump. "I said I was eager
to find leakers and would like to nail one to the door as a message," Comey
wrote about his February 14, 2017 meeting in the Oval Office, adding that
the president "said something about the value of putting a head on a pike as
a message."
A few months later, Reality Winner was arrested and charged under the
Espionage Act - the first leak case of the Trump era, the first head on a
pike. Two days after her arrest, The Intercept published an article about a
top-secret NSA document that described what the agency knew about Russian
attempts to hack the U.S. voting system. The Intercept was not aware of the
identity of the source who provided the document, though other news
organizations connected it to Winner. The document, dated May 5, 2017,
described a monthslong effort by Russian military intelligence to hack
elements of the U.S. election and voting infrastructure through a
combination of tactics that included phishing attempts against local
election officials. At the time, the document was the most detailed account
to emerge from the Trump administration about the Russian hacking efforts -
and it emerged only because someone had leaked it.
Winner was not treated like other government workers indicted in the Obama
era for conventional leaks (a separate group from those charged with mass
leaks, like Edward Snowden and Chelsea Manning). Whereas Jeffrey Sterling,
Stephen Kim, and John Kiriakou were charged and released on bond, Winner was
denied bail and jailed near her Augusta home. Prosecutors claimed she had
dangerous views - among other things, they cited a sarcastic remark she'd
made about America's reliance on air conditioning - and they asserted
without proof that she might have more documents on a thumb drive (her
lawyers have denied it). The prosecutors also said that because she was a
translator who spoke Farsi, Dari, and Pashto, she might try to leave the
United States. But there had been just one occasion in her entire life when
Winner made an overnight visit to a foreign country, her mother told me - a
weekend trip to Belize.
***
One of the punitive flaws of the criminal justice system is that a large
number of people are unnecessarily held in pretrial detention. The bail
system plays to the advantage of wealthy defendants like Paul Manafort and
Harvey Weinstein (who paid his $1 million bond with a cashier's check),
because they can provide the government with fantastic sums; freedom is
quite literally for sale, as in a story Anton Chekhov might have written
about czarist Russia. The poor and the unlucky are stuck behind bars,
punished before their guilt is determined. Defendants who are unable to pay
bail have sometimes been held for years without a trial.
The Lincolnton jail usually has about a half dozen or, at most, a dozen
female inmates, according to Winner's mother. Similar to local jails across
the country, many inmates have been arrested on drug offenses, and some go
through withdrawals while there. Winner has been attacked on one occasion -
she ended up with a gash on her head, according to her mother. Billie
Winner-Davis also said that her daughter has access to a small outdoor pen
for about 30 minutes of exercise a day, though not on weekends - that is the
entirety of her time outside.
Strip searches are a routine feature of life. When she is taken to the
federal courthouse about 45 miles away in Augusta, Winner is strip-searched
after every visit to the courtroom and every meeting with her lawyers, her
mother said. She is also shackled at the ankles and the waist (she fell
once, and because her hands were bound, she landed on her face, bruising
it). The whole process is so humiliating that, according to Winner's mother,
she has asked to not attend the hearings in Augusta unless it is absolutely
necessary. Of course, these difficulties are not unique to Winner - across
the country, this is what happens all the time to people who are denied bail
or simply cannot pay it. "Reality has been through a lot," Billie
Winner-Davis said. "Being in the military for six years, she's not a soft
person. But for her to cry and say, I can't do this, that she's treated,
she's not even human any more." - Winner-Davis breaks off at this point.
As Christmas approached and Reality Winner sat in the Lincolnton jail, Paul
Manafort was the recipient of another holiday gift from the judge in his
case. He was granted permission to move from his Virginia condominium to a
larger $1.5 million home he owns in a gated community in Palm Beach,
Florida.
***
Imagine that you are facing trial but are forbidden from searching for
evidence to prove you are innocent. It is a scenario from a totalitarian
"Alice in Wonderland" - you may do anything you want to defend yourself
except the one thing that might actually help.
That's a rough approximation of the situation Winner's lawyers have faced
due to a strange twist in her case. She is accused of potentially causing
"exceptionally grave damage" to national security by leaking a classified
document that, the government claims, contains "national defense
information." NDI is a special designation that the Espionage Act uses for
sensitive and closely-guarded information that might harm national security
if leaked. But what if the document did not merit this elevated status? What
if its disclosure didn't actually cause "exceptionally grave damage," or any
damage at all?
That's the key pathway Winner's lawyers want to follow in her defense,
according to one of their latest filings. For a long time, the government
has over-classified the avalanche of documents it creates, exaggerating the
sensitivity of its cables, reports and analyses. Even Obama admitted that
the government has a classification problem. For instance, a State
Department official acknowledged in a court filing that the classified
report at the heart of Stephen Kim's case was "a nothing burger." (Kim, a
former State Department expert on North Korea, agreed to a plea deal, rather
than risk going to trial and, if he lost, getting a longer sentence.)
But there's an absurd catch to the over-classification defense that Winner's
lawyers want to pursue, and they have had to fight about it for much of the
time she has been in jail.
Early in the case, Winner's lawyers received security clearances to read the
classified document she is accused of leaking. They had to read it in what's
known as a SCIF - a Sensitive Compartmented Information Facility, which is a
secure room in a government building. Outside the SCIF, they were not
allowed to disclose the document's contents to anyone who does not have a
security clearance.
Winner's lawyers have stated in public filings that they needed to search on
the internet to determine whether information in the document was known to a
large number of government officials or was in the public domain. This was
crucial to their effort to prove that the document did not merit NDI status.
But because the document is classified, and because researching its contents
on the internet could disclose search queries to hackers who theoretically
could compromise the lawyers' computers or access their routers, they were
prohibited from Googling key phrases, according to court filings. In
essence, Winner's lawyers were forbidden from finding out if the document
was as sensitive as the government claimed.
Of course, the document Winner is accused of leaking is widely reported to
be the document published by The Intercept on June 5, 2017. There is
virtually nothing about the document that her lawyers can give away because,
as reported, the document was published, with a few redactions, by The
Intercept. But that didn't change the restrictions. In the government's
view, a classified document remains classified even after it has been
published. Lawyers are still bound by the rules: They may not take any
action, such as typing a phrase into a search bar, that might disclose the
contents of a classified document even if everyone basically has access to
it.
There's yet another bizarre feature in the classified wonderland of Winner's
case. Just as government officials are forbidden from talking about
classified matters on unsecured phone or email systems, Winner's lawyers are
under the same restrictions, according to court filings. But unlike the
government's lawyers, they do not have secure systems at their disposal.
This means they cannot chat on their work phones or exchange work emails
about classified aspects of the case. They generally have to convene in the
same room to talk about the leaked document, and that's a major impediment
because they are dispersed across the country, in Georgia, Louisiana,
Maryland, Tennessee, and Washington, D.C.
In November, they filed a motion to lift what they described as
"unconstitutional limitations" on Winner's right to defend herself. The
November 27 motion said the defense was unfairly restricted in its ability
to "conduct research necessary to gather evidence" and "communicate with one
another in a timely and efficient manner." The restrictions prevented them
from having "conversations involving nearly anything of substantive
consequence," including discussing news stories about the leaked document.
Their motion argued that the restrictions got in the way of their core
effort to determine whether publication of the document "could actually
threaten the national security of the United States."
They apparently have won partial relief. In a hearing on February 27, one of
Winner's lawyers said that after several rounds of negotiations with the
prosecution, they had "been able to work out a protocol" on restrictions
over internet searches. It's not clear, from the transcript, what those
protocols consist of and whether the restrictions have been lifted or just
amended - key parts of the case remain classified. But there was no mention
of changing the restrictions on communicating with each other on phones and
email, so those crucial impediments seem to remain in place for Winner's
lawyers.
***
One of the benefits of being rich in America is that you can afford as many
lawyers as you need, for as many hours as you need them. While
no-expense-spared representation is useful in cases ranging from jaywalking
to murder, it's essential in Espionage Act cases.
That's partly because these cases are priorities for the government,
involving political crimes that touch on issues of loyalty to the nation.
The government puts enormous resources into prosecuting and generating
publicity about such cases, with senior Justice Department officials often
announcing the indictments.
There's another reason deep pockets are needed. The discovery process is far
more complicated when the target of discovery is classified. The government
and its intelligence agencies are exceedingly reluctant to share their
secrets with outsiders, especially lawyers for whistleblowers. Pretrial work
is onerous and frustrating. Winner's lawyers have requested that the court
issue 41 subpoenas, most of them to state and federal agencies; all but one
of those requests have been turned down. The defense is appealing.
Legal costs do not matter much to the Manaforts and the Weinsteins of the
world; they can shell out millions of dollars in fees without breaking
stride. But for pretty much everyone else, such expenses are ruinous. Kim,
the State Department official who received a 13-month sentence in his plea
bargain, depleted his savings accounts, and his family sold whatever they
could, even jewelry and furniture. They raised about $1 million, and the
lawyer who represented Kim, Abbe Lowell, absorbed about $1 million more on a
pro bono basis. If the case had gone to trial, the costs would have been
even greater.
Winner had about $30,000 in a bank account when she was arrested (which the
government used against her, arguing that she had the means to flee the
country). Her mother has just retired after working for decades as a
mid-level manager for Child Protective Services in Texas. Like most people,
they could not possibly afford the daunting costs of her defense, which are
on a par with Kim's. In Winner's case, the Press Freedom Defense Fund, a
division of The Intercept's nonprofit parent company, First Look Media
Works, is contributing to the fees.
There is one final, terrible irony to Winner's case. Last month, a
bipartisan report from the Senate Intelligence Committee stated that media
stories about Russian attempts to hack into U.S. voting systems had played
an important role in raising awareness of the threat, because the
government's own internal warnings were inadequate. Though the report didn't
explicitly mention it, the most detailed media story about those hacking
attempts was the one published by The Intercept, based on the NSA document
that Winner is accused of leaking.
Unfortunately, defendants in Espionage Act cases generally have not been
allowed to assert a public interest defense, in which a defendant can argue
that an illegal act, such as disclosing a classified document, should be
balanced against the public good it achieved. When Winner's trial starts,
prosecutors will probably object, strenuously, to her lawyers making a point
the Senate report seems to readily acknowledge: The document's publication
helped make the country more secure.
If her trial begins as scheduled on October 15, Reality Winner will have
been in the Lincolnton jail for nearly a year and a half.
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