[Photo: National Security Agency, Ft. Meade, MD via Wikimedia]

Reality Winner: The Cost of Mounting a Defense Arguing the Government Overclassifies

In this Democracy Now appearance, Reality Winner’s mom, Billie Winner-Davis, suggested that, whereas her case had originally been due to go to trial next month, it now looks like it will stretch into 2019.

We do not have a trial date at this point. The trial was originally scheduled for October, and then it was pushed to March. But as of right now, we do not have a new trial date. So we don’t know when she will be—face the jury. What I’m being told is that it will be late 2018, if not early February 2019.

Earlier this week the two sides submitted a proposed schedule that shows even that may be optimistic. Because Winner’s defense wants to use classified information to argue the document she is accused of releasing is not national defense information, it has to go through the onerous Classified Information Procedures Act process (see this for a description of the CIPA process) to get that information approved for use in a trial. If I’m doing the math correctly, most optimistically the proposed schedule looks like this:

  • March 30, 2018: Defense submits all proposed subpoenas
  • April 30: Deadline for discovery, including remainder of government’s CIPA Section 4
  • June 14: Government’s Rule 16 expert disclosures
  • July 14: Defendant’s Rule 16 expert disclosures, if they already have clearance (former ISOO head, Bill Leonard, who is already serving as expert witness already has clearance)
  • July 29: Defendant’s amended CIPA 5 notice
  • August 13: Government’s supplemental Rule 16 expert disclosures due, government’s objections to adequacy of defendant’s CIPA 5 notice
  • September 10: Government’ CIPA 6(a) motion
  • October 1: Defendant’s response to government’s CIPA 6(a) motion
  • October 15: Government’s reply to CIPA 6(a) motion
  • October 21: CIPA hearing (this is where the two sides argue about what classified information the defense needs to make her case)

At this point, there would either be 42 days to argue about CIPA 6(c) motion (where the government proposes unclassified substitutes). If that happens, it will be 90 days until trial, meaning it would start March 1. If it doesn’t, then the trial would skip that 42 day process and presumably drop into very early 2019).

  • Early January 2019 or March 1: Trial start

Again, this is a joint proposal, meaning the defense is on board with the long delay. Either they think they can win a graymail attempt (meaning the judge agrees they should get the classified information but the government refuses to provide adequate substitutes and so is forced to dismiss the case) or they believe they can make a case (with the help of Leonard) on the NDI claims generally. They may also anticipate that other events — the Mueller investigation, the congressional investigations into the Russian hack, state investigations, or more journalism — may make it clear how absurd it is to try Winner for information that has become publicly available as we have a public discussion about what the Russians did in 2016.

But if not, because (unlike most other people save Hal Martin recently charged under the Espionage Act) she will have been in jail for 19 months assuming an early January 2019 trial, or 21 months assuming a March 2019 trial. Winner is charged with one count of willful retention and dissemination of National Defense Information.

By comparison, Jeffrey Sterling, who was found guilty on nine counts, including five unauthorized disclosure counts, was sentenced to 42 months (the government had been asking for nine years, but Leonie Brinkema seemed to have reservations about the evidence behind a number of the guilty verdicts, and the sentencing came in the wake of the David Petraeus sweetheart two years of probation plea deal). Admittedly, the government piled on the charges in that case, whereas here they charged as one count things they might have charged as several (by charging both the leaks to The Intercept and WaPo, for example, or by charging her for not telling the full truth to the FBI). Nevertheless, Sterling was accused of exposing a critically sensitive program and an intelligence asset, whereas Winner is charged with leaking one document in an environment where very similar information is being leaked or released by multiple government sources.

Stephen Jin-Woo Kim, who pled guilty to one count of disseminating NDI pertaining to CIA resources in North Korea, was sentenced to 13 months.

This is the no-win situation Winner is in, trying to challenge her conviction after having been denied bail. Because of the way we deal with classified information, she’ll have served a likely full sentence by the time she gets to trial.

It still may be worth it. After all, if she wins at trial, she’ll avoid a record as a felon.

But the larger battle seems to be one about the ridiculousness of our classification system. As Leonard said (see PDF 99-100) in his declaration to explain why he was providing his services pro bono in this case, he believes the kind of overclassification of information that may be at issue here amounts to degrading the entire classification system.

My motivation for becoming involved in this case. was my concern for the integrity of the classification system. I strongly believe that classification is a critical national security tool and that the responsibilities of cleared individuals to properly protect classified information are profound. At the same time, government agencies have equally profound responsibilities and in this regard, I have long witnessed the over•classification of rnfonnation within the Executive Branch due to the failure of agencies to fulfill these responsibilities. In this way, the actions of agencies can actually undermine the integrity of the classification system in that to be effective, it must be used with precision. As Justice Potter Stewart said in the Pentagon Papers case, “when everything is classified, then nothing is classified … ”


My involvement in [two prior prosecutions, that of Steven Rosen and Thomas Drake] confirmed for me the importance~ especially in criminal prosecutions, of not allowing representatives of the Executive Branch to simply assert that certain information is classified or closely held or potentially damaging if disclosed.

That is, Winner might prove a point: that this kind of information should be more accessible to the public.

But along the way she will have paid a very costly price.

Update, March 15: After two hearings, Magistrate Brian Epps cut two months off this schedule, setting Winner’s trial date for October 15. That will mean she will have been in jail over 16 months by the time of her trial.

23 replies
    • bmaz says:

      Absolute baloney. While The Intercept did her no favors, she was totally had from her own actions completely independent of that.

      • Trip says:

        True. But doesn’t it seem like it was kind of a rookie move on the Intercept’s part ? Greenwald would have been more careful. I think so, anyway.

        At any rate, it’s crazy how Reality is being treated. Not unusual, but crazy. She didn’t release any more detail than what was already out there before.

      • James Hester says:

        j”Baloney”. ” I changed my mind when I get new information, what about your sir”. The information from Winter was sent to NSA by Intercept for comments they figured out who was behind it. Dont forget the sugar Daddy of intercept works with the agencies.

        • rihmj says:

          Bmaz, a legend in his/her own mind. While intercept has done some good work we should keep in mind that they are the intercept for whistle blowers. who is Pierre Omidyar, just a tool in disguise. Why Matt Tiabi walked away?

      • bumbooJumboo says:

        Why intercept/Greenwald and gang has published only 2% of Snowdon  documents in 5 years? waiting for approval from sugar Daddy? Greenwald sure put a book about Snowdon revelations within no time.

        • bmaz says:

          I’d say that is their business and editorial decision, not yours or mine. And the “sugar daddy” comment is bullshit.

          And by the way, you have just serially used different handles. RIHMJ and BumbooJumboo. That is a violation of our terms of service, sock pupating is not allowed here. Pick one and stick with it.

        • James Hester says:

          Now the absolute baloney is upgraded to editorial decision?. A total non sense. How about NYT and Washingtoncompost editorial decision to print misleading information most of the time and dont forget, WMDs, Syrian and Libyan stories. Intercept is supposed to protect their sources. Instead they sent the whole print out from Reality Winners to Agencies for comments which they easily figured out. Head I win tail you loose. Your preferred approach. Hope next time you do spend sometime researching before offering your unsolicited advice while eating a big baloney. So long.

        • SpaceLifeForm says:

          Redaction takes time.
          Cross checking info between documents takes more time.
          We know a lot of the docs are training related, but others may deal with ongoing ‘stuff’.

          Trying to educate the public (and importantly, oversight committees) without blowing ops or investigations is not a simple problem.

    • emptywheel says:

      The government argued that both because there’s a thumb drive they haven’t found yet and because she seemed to willfully seek out classified information (in part bc she is a fan of The Intercept) she was a danger. She appealed it to the circuit to no avail.

      • Trip says:

        Marcy, do you think she is holding onto a thumb drive as some type of insurance? Or is it possible that it doesn’t have anything to do with her at all? I mean, she seemed to go old school in the way she copied docs, IIRC.

        • SpaceLifeForm says:

          Five scenarios

          There is no thumb drive at all. Stories to contrary being misdirection.

          She really is CIA and turned over the thumb drive to them.

          She really is FBI and turned over the thumb drive to them.

          There was a thumb drive but her dog ate it, but it ended up in trash.

          Trump gave her a suite at Mar-A-Lago for a weekend, and she accidently left it there.

          Spy vs Spy. Clear as mud.

  1. yogarhythms says:

    EW thank you so much for the time line. The hot buttons on the left column were so bright I couldn’t focus to read the entire process let alone understand the procedural process to create a timeline. JH, put your big boy pants on one leg at a time just like the people at the intercept do. One leg at a time. Why be so judgmental?

    • SpaceLifeForm says:

      May be some Metadata or inadvertent reveal that have attackers worried.

      Even if Skripal not involved, there may be a keyword that tipped.

  2. scribe says:

    Reality is going about her defense all wrong.  But now we also know why she can’t get bail.  Like the sailor convicted in federal court for … unauthorized possession and retention of national defense information (for snapping a picture of a nuclear submarine, then trashing the camera, laptop and memory storage) … the same charge as Reality Winner, if she were out on bail she could go on Fox and Friends and carp about the injustice of being prosecuted while Crooked Hillary gloats in uncharged freedom.

    If she weren’t locked up, she could get on TV and Trump’s favorite morning show and appeal for a pardon, too.  And, like the former sailor, get one:  https://www.yahoo.com/news/trump-apos-latest-pardon-shows-211624745.html


  3. TGuerrant says:

    Are the marshals still keeping her at the Lincoln County Detention Center? If so, she’s doing harder time pre-trial than she would in a federal prison post-conviction. County jails don’t have the facilities or programs a fed prison does. Being kept in USMS-contracted county space long-term is a miserable fate.

    I’ve wondered whether they’re holding her (unlike Paul “Christmas in the Hamptons” Manafort) because they’re afraid she’ll go public about the cryptolinguistic work she did at Ft. Meade to support drone strikes.

    • SpaceLifeForm says:

      Believe they are just giving her a hard time to send a message to other potential whistleblowers.

      Marcus Hutchins is being treated better, but he did not leak any IC ‘stuff’.

      He may have inadvertently screwed up an IC OP (WannaCry), but that is a different problem. WannaCry was intentionally meant to be discovered. You do not have a domain name in clear sight inside the malware.

      • Trip says:

        In the back of my mind, I still think Reality might have been set up. What she took was relatively inconsequential, it didn’t prove anything more than prior releases, she was purportedly anti-Trump, and this all went down when Sessions and Trump were publicly going hard on the leakers (and deep state Obama stuff). Her mistakes were so obvious and dopey too, KWIM? She was so careless in hiding any traces back to her.


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