Reality Gets A Harsh Sentence

With Update Below!

As many of you may already know, this morning was the sentencing for Reality Winner. She was sentenced to 63 months of incarceration and three years of supervised release upon completion of her term. The supervised release term is rather standard. She will be housed at the Federal Medical Center, Carswell in Fort Worth, Texas. The stated reason was because she is bulimic, but it seems more like a nod to her, and her family, who requested a Texas posting so they would be near. There is no pecuniary fine. I have not seen the official sentencing order yet, but have little to no doubt she will be credited with the time served in pre-trial detention since her arrest on June 3, 2017; i.e. nearly 15 months. So, assuming that, she should be released in about 4 years.

Okay, that is the hard nuts and bolts of Ms. Winner’s sentencing. If you want some more background, please see our old friend Kevin Gosztola at Shadowproof, who has been covering all the Reality Winner court appearances.

All that said, let me address a couple of things. First, the sentence was not unexpected, indeed it was stipulated to in the plea agreement Ms. Winner both signed and allocuted to in open court. While the court technically “could” have deviated downward, there was little to no chance it would given the plea language. Anybody shocked by today’s sentencing has not been paying attention.

Secondly, the government did not “block” Winner’s defenses. I had a discussion on this point with a good friend, Will Bunch, who has admirably written extensively on, and in favor of, Reality. Sadly, the law here is what it is, and not what Will and I would like it to be. Winner’s attorneys filed every motion they could, both to try to win and to protect the record. But those motions were never going to work, they never do, and they did not here.

Jeffrey Sterling also tried all of that. It did not work then, for him, either. Sterling got 42 months in prison. It is hard to compare disparate cases, but in the long run, I personally have a hard time seeing why Reality Winner was worse or more damaging than Jeff Sterling, and yet she got 1.5 times as much incarceration as Sterling. Different DOJ’s, different times and the Trump Administration was already on the record as head hunting for leakers when Winner fell into their lap. So, I guess it is not shocking. They were looking to make an example and there she was.

Now to the after show doings. The United States Attorney for the Southern District of Florida, Bobby L. Christine (never trust a man with two first names), cravenly issued a pompous press release on the sentencing. This is just a taste of the Christine hyperbolic:

The document Winner compromised did, in fact, contain TOP SECRET information about the sources and methods used to acquire the intelligence described in the report. That means it revealed how U.S. Intelligence Agencies obtained information. U.S. Government subject matter experts have determined that Winner’s willful, purposeful disclosure caused exceptionally grave damage to U.S. national security. That harm included, but was not limited to, impairing the ability of the United States to acquire foreign intelligence information similar to the information the defendant disclosed. This was, by no means, a victimless crime.

What’s more, Winner’s exceptionally damaging disclosure was not a spontaneous, unplanned event, but was the calculated culmination of a series of acts. She researched whether it was possible to insert a thumb drive into a Top Secret computer without being detected, and then inserted a thumb drive, WHICH THE GOVERNMENT NEVER RECOVERED, into a Top Secret computer. She researched job opportunities that would provide her access to classified information. At the same time, she searched for information about anti-secrecy organizations, and she celebrated claimed compromises in U.S. classified information.

Note the Trump like raging capital letters? Ooof. It was an unnecessary and prickish public release by somebody that had won and driven the vanquished into the ground. And while Bobby L. Christine took all the glory, he did not do diddly squat himself, the matter was handled by a team of career AUSA’s that he did not even have the common courtesy to mention. Very Trump like.

Okay, so why did Ms. Winner end up here? There are a lot of reasons. First off, while Winner would have pretty clearly been discovered anyway, she disclosed her material to The Intercept, which was far from the only cause of her discovery, but did her no favors either. And the Government, especially the NSA, hates, with a capital H, The Intercept. But again, Reality’s discovery was inevitable even despite that, but it is a factor.

Secondly, the Government has thought all along that she had more material than what The Intercept and Matt Cole received and published. In its sentencing memorandum, the government addressed other areas of concern as to Winner including: her insertion of flash drive into a TS/SCI NSA computer at Fort Meade; her Internet history (which other filings make clear included details on Anonymous, Vault 7, Hal Martin, Assange, and Snowden); her download of Tor; her seeking out employment at Pluribus; and her screenshots of secure drop information.

These bases were generally also why she was detained without bail. That does not make it right, and it is, and remains true, that there is far too much secrecy and cheap classification in the face of the American public’s interest. This is a textbook example of just that. But Reality Winner tried to be a whistleblower and fell into the lurch where there are no such protections for the acts she did. She paid an overly, and draconian, price for what she did because the Trump Administration needed a head on a pike. They got hers. And this morning’s sentencing was the ugly culmination of that.

UPDATE: alright, Trevor Timm at The Intercept, has posted an interesting coda to the Reality Winner goings on today.

WHEN THE INTERCEPT first published the top-secret document, reporters and editors went to the government — as they do every time The Intercept publishes classified documents — to hear the NSA’s views about any information that might truly harm national security. After listening to the agency’s arguments, and out of an abundance of caution, The Intercept redacted a few pieces of information from the document before publishing it.

A key phrase that the government wanted withheld was the specific name of the Russian unit identified in the document. The government was particularly insistent on that point. Since it wasn’t vital to the story that the unit’s name be revealed, nor was it clear — at least at the time — that revealing the unit’s name was in the public interest, The Intercept agreed to withhold it.

But in the indictment of alleged Russian military intelligence operatives that Mueller’s office released last month, the Justice Department revealed the same name: GRU unit 74455. (The unit is also known as the Main Center for Special Technology or GTsST.) The indictment went on to reveal information almost identical to that contained in the document Winner admits to disclosing:

In or around June 2016, KOVALEV and his co-conspirators researched domains used by U.S. state boards of elections, secretaries of state, and other election-related entities for website vulnerabilities. KOVALEV and his co-conspirators also searched for state political party email addresses, including filtered queries for email addresses listed on state Republican Party websites.

In or around July 2016, KOVALEV and his co-conspirators hacked the website of a state board of elections (“SBOE 1”) and stole information related to approximately 500,000 voters, including names, addresses, partial social security numbers, dates of birth, and driver’s license numbers

In or around August 2016, KOVALEV and his co-conspirators hacked into the computers of a U.S. vendor (“Vendor 1”) that supplied software used to verify voter registration information for the 2016 U.S. elections. KOVALEV and his co-conspirators used some of the same infrastructure to hack into Vendor 1 that they had used to hack into SBOE 1.

The Justice Department is trying to have it both ways: It’s OK for Mueller to publicly release this information in an attempt to prosecute alleged Russian hackers because it’s in the public interest. But at the exact same time, the government is also claiming that a document including very similar information causes grave harm to national security when disclosed to the public by someone else.

There is a lot more there at Trevor’s post. Without doubling the size of this post, I would like to second the expert opinions submitted by Bill Leonard that Trevor Timm describes and have been long a staple here. There literally is no greater expert on classification than Bill Leonard. That said, it is like the discussion in the main original post. The fight is against archaic, authoritarian and totalitarian laws and legal precedent. Until those are changed, there is reality, and then there is the regrettable case of Reality Winner.

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38 replies
  1. Trip says:

    This is sad, bmaz, but not unexpected. Hopefully after Trump is gone, someone with sense and compassion will pardon her.

    Also, as an aside, thanks for answering all of my often dumb legal questions. I don’t think I’ve told you how much I appreciate it.

    • Desider says:

      A good Twitter thread on how Reality Winner did more harm than often given credit for:
      https://twitter.com/xtrixcyclex/status/1032699050158686209

      As for the Timm update, it presumes nothing changed over 13 months in saying “the government wants it both ways” – perhaps they figured the cover was already blown, perhaps they were doing something related to GRU & didn’t want extra attention/any extra precaution on the Russians’ part, perhaps something else.

      While I agree with a lot of Marcy’s analysis on government over-classification, Timm’s is overbroad & unserious. The government *does* determine when & where classified info is divulged – that’s their job, not Timm’s, even though he *may* play a role in whistle-blower & public’s need to know, but considering how badly The Intercept bollocksed up this leak & screwed Winner’s life, I don’t think he’s the right authority to tell the government how to get its methods & motives in order.

      • Trip says:

        Chris “Cal” [email protected]

        Replying to @ggreenwald @theintercept @DNC
        3. She shared the information directly with @ggreenwald and @theintercept who we know were working directly with the Russian military team responsible for hacking the @DNC. Receipts: https://mobile.twitter.com/xtrixcyclex/status/1017903251843440640

        I’m going to have to do a deep dive on the above assertion. That is a pretty shocking allegation of a crime.

        My perspective on Greenwald evolved, but hasn’t arrived at this destination. He started out as a Libertarian with the CATO Institute. Later, he was featured on Salon, because the civil libertarian principles of gov’t transparency and oversight intersects with the left, I believe. However, he argued in favor of citizen’s united, with basically the same argument he makes redundantly, in that campaign finance (or anything in gov’t policy/legislation) was already bad, this won’t make it worse, essentially. Which is never true, it always gets worse. He recently was touting SE Cupp as an intelligent nonpartisan, which is absolute horseshit. She had M Huckebee write the forward in one of her books, for one example. He has nothing but disdain for the Democrats (which is understandable based on their past actions), and he criticizes left-leaning (not actually left, centrist in reality) cable programming (also a valid point), but while simultaneously appearing on Fox (who deserve nothing but scorn for their blatant propaganda).

        My opinion is that he is, has been, or has shifted toward libertarianism, beyond the gov’t transparency principle, because that was his political origin. That’s as far as I have been willing to take my critique, at this point. I know that he recently started to delete old tweets from last year wholesale (he says due to lack of context), which isn’t necessarily a big deal, a lot of people do, except that he has attacked others for doing the same in the past. I think he’d have a shit-fit if gov’t did the same, as accountability/transparency of history is king. So he is a study in contradictions. He does write some excellent pieces critical of both sides, but I can’t help but notice a much more intense sense of mockery and scorn as it applies to the Democrats. But that is my perception and may not be everyone’s experience.

        As far as Reality, what she released, IIRC, really didn’t demonstrate any additional hard evidence in methods (or whatever you call it). I think her heart was in the right place, in terms of whistleblowing. But a part of me felt that she had been set-up by the Trump administration because it all went down during the time they were screaming about leaks. I thought the leak didn’t offer anything significant, that wasn’t already put out by intelligence. The fact that her name is Reality Winner, FFS, when the president is nothing but a reality star, was a total mindfuck, almost too strange to believe. I still think she has been treated way too harshly for her actions. She is being made an example.

        • bmaz says:

          I’ve never heard of “Cal” Carnahan in my life, but I think that twitter thread is full of hyperbolic shit. The second you blithely say Glenn is directly working with GRU, you lose all credibility.

          As to Citizen’s United, my recollection is not that he cheered it so much as he thought it was not necessarily wrong on First Amendment grounds. I don’t either. It could have been decided differently as to leaving limits, and I wish it had been, but the core thought that money is speech is not wrong. Frankly, I think it is very arguable that Buckley v. Valeo is what led directly to CU. CU did not come out of nowhere, and McCutcheon v. FEC has kind of surpassed it since the decision in CU.

          • Trip says:

            I hadn’t heard of him either, I clicked on the link from Desider and that comment was inside a thread.

            I feel like you just gave me legal homework, damn you bmaz! :)

          • Desider says:

            Greenwald’s defense of the Citizens United decision was pretty cogent – it’s hard to see a few average Joes pooling a few bucks to make a low-budget online campaign video as anything but protected speech. (despite the actual characters in Citizens United being not so average).

            • orionATL says:

              if you apply the same rule, say free speech, to all ranges of income where income is massively imbalanced, then you are going to have massive imbalance in the messages that get heard. that is exactly where we are today in the u. s. it’s Billionaires vs the people and the people are losing.

              a limitation on all could help redress this massive imbalance, but won’t happen if the constitution says there can be no government restrictions on anyone, anyone that is except for the espionage act or national security letters or……

    • orionATL says:

      my recollection of greenwald’s past (from memory only) is that he was a first amendment specialist who worked for a law-firm doing corp law. i recall him writing that his job was defined by the fact that, for whoever his company was defending or pursuing, the opposite side would have lied and it was his job to dig up the evidence that they had. :)

      i thought his writing at solon was the most beautiful example of political argumentation i could read at the time. further, i think he did great work on snowden. but emptywheel had a piece on mr. g. that evidenced how he ignored the contributions of women journalists, among others his partner in crime laura poitras.

      after snowden i began to find glenn greenwald more and more tedious. he came to be the true embodiment of the sarcastic term “shrill” – and he often seems that way now. i don’t feel i can learn much useful from him anymore.

  2. readerOfTeaLeaves says:

    On a day when “Morning Joe” was scandalized over the way that Trump’s queuing up to pardon Paul Manafort, the money laundering political advisor of political skanks across the globe, this reads a whole lot more like ‘revenge’ than it does ‘justice’.

    The context of this young woman’s sentence against other legal news of Cohen, Trump, Flynn, Manafort, et al, is appalling. If only she’d laundered millions, and sold her secrets to Pecker…

    • bmaz says:

      Um, no. But “we” are also not ignoring the infirmities of their conduct, which even they came to admit. She would have been rather quickly identified and caught irrespective, but The Intercept sure did not help and screwed the pooch a little.

      • Will Twiner says:

        As you indicate, they freely admit this (or at least NOW admit it) and indicate they are taken steps to insure it doesn’t happen again.

        • orionATL says:

          in my mind it should be held open as an unanswered question how could it be that the intercept, of all publications, could, thru possible clumsiness, turn in a person who voluntereed secret gov documents?
          there is something much too pious about the intercept’s explanations for its original error and its remediation.

          i would love to know if the intercept’s volume of over the transom mail has slowed since this travesty.

  3. NJrun says:

    Since The Intercept is proving to be a Russian front (whether she knew that or not), that makes her less sympathetic for giving them information. That’s not a legal analysis, and I’m not proud to say it, but it is a gut reaction.

  4. jo6pac says:

    I’m not surprised by this and sadly general betrayus is still free to be on tv talk shows. Sad little country we live in.

  5. James Hester says:

    If you guys go back my comments in the past about intercept, that I like to call “intercepted”, their throwing the young woman under the bus. one of the darling of this site jumped to the defense of Intercept by his foul mouth in over drive.The Intercept inception by the billionaire who happens to work with intel. agencies, was to 1) selectively release Snowden files slowly at convenient times and 2) and assist the agencies in catching the whistle blowers. The intercept goons went after Wikileaks, Glen is flying all over the world, writing book, speaking engagements, and being a celebrity and while Jillian is locked up. Does anyone remember what percent of Snowden files were published by the intercepts…. so far, a few percent.
    The intercept “EDITORS” sent the leaked material to and asked NSA to comment. The rest is history. Their 2nd catch was FBI files leaker. The future whistle blowers would think twice before contacting the intercept. The agencies would their source of information which the intercept dutifully publish disguised as W.B.
    BTW the intercept did not pay a dime to her defense to the best of my limited knowledge.

    • bmaz says:

      If you are talking about me, at least have the minimal balls to bring it “James Hester”. I’ll be waiting.

    • Tracy Lynn says:

      Yeah, I remember that. Didn’t really understand the level of anger–it looked to me like the Intercept threw Reality under the bus as well.

      • bmaz says:

        Seriously, because, so far, I think “James Hester” has not done jack shit except throw ambiguous crap against the proverbial wall. Please, pray tell, what points has he made?

        There is a long history of coverage of the Reality Winner case on this blog, but I am sure “James Hester” has it all wired in this comment. A history that contradicts his, and your, current bullshit. Prove it wrong, or shut up.

      • bmaz says:

        Seriously, “Tracy Lynn” and “James Hester” I’ll be waiting.

        What are your arguments, then and now, since you both seem to claim territory on two different time periods. What do you have? Please enlighten us! Do tell!

    • Willis Warren says:

      Snowden happened when Greenwald was at the Guardian.  You’re claiming that the Intercept was started as a Russian front to release Snowden’s files?  Marcy would be shocked to know that she’s a Russian agent or used to be.

  6. gezzerx says:

    I’m afraid, based on my own experience, that fascism will come to America in the name of national security. Jim Garrison

    “Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master.” — George Washington

    The strictest law sometimes becomes the severest injustice. Benjamin Franklin

  7. tinao says:

    What I want to know bmaz, do you still feel completely comfortable with electronic voting? Seriously, I went to the senate hearing on electronic voting way back when they were trying to push HAVA through and watched a computer expert from Carnegie Mellon hack into a voting machine and flip the tabulation and insert a virus which ate itself so it was undetectable at the end of the day which flipped the vote from 2 votes for George Washington and 1 vote for Benedict Arnold to, 2 votes Benedict Arnold and 1 vote George Washington in under 60 seconds. Paper ballots hand counted at the precinct before the public with a strict chain of custody for transfer and storage may not be as easy as electronic voting, but it has a higher level of security and accountability. It seems to me people are choosing personal ease over security of democracy.

    • bmaz says:

      When did I say I was “perfectly comfortable with electronic voting”? I do think there is a ton of unsubstantiated hyperbole on it in that there is little to no evidence of it significantly throwing elections, but that does not equate to “perfectly comfortable”. I vote locally on optical scan machines that have a paper backup, and I am fine with that.

      • tinao says:

        I don’t know what I just did,but my response got wiped out with a forbidden notice. Crap, and now I have to get ready for work but I will reconstruct and get back to you on that after work.

  8. Thomasa says:

    If the govt. wanted a head on a pike for show they should have picked a bigger one. Winner is a sympathetic character in a really rotten play. Risen weighed in this AM on Democracy Now reminding us that the Bush and Obama administrations pursued him for seven years before giving up. He would have been a trophy worth mounting on the wall. Winner was an easy target with very limited resources and even more limited experience. What a cheap shot!

  9. cwradio says:

    “And the Government, especially the NSA, hates, with a capital H, The Intercept.”

    That would explain all the right-wing trolls that have soiled the Intercept’s comments section. TI seems to be the least censored paper on the web and thus has the most right wing comments of any liberal rag.

  10. Njrun says:

    Bmaz, thanks for setting me straight. Can’t argue with “f…ing stupid.” Impeccable logic.

    Have no idea whether you like Greenwald, or if you think my point was exaggerated (honestly, Hannity and Breitbart are worse and more pro-Russia, but Glen is not far behind).

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