Suspect in leak of Russian cyberattack report faces tough legal battle

With the spotlight on her case fading, Reality Winner must defend herself against the Espionage Act. Conscience and public interest are no defense.
This selfie posted on social media shows Reality Winner, left, and her mother, Billie Winner-Davis, right.

This selfie posted on social media shows Reality Winner, left, and her mother, Billie Winner-Davis, right.

Just thinking about the prosecution here in Georgia of Reality Winner for a National Security Agency leak triggers "major flashbacks" for Thomas Drake.

Seven years ago, Drake – a former senior NSA official — walked out of federal court a free man after the government, on the eve of his trial, dropped 10 charges accusing him of leaking classified information about fraud, waste and abuse in NSA surveillance programs to The Baltimore Sun.

Still, Drake paid a heavy price. The legal ordeal cost him a $154,600-a-year government job, nearly pushed him into bankruptcy and strained his marriage. Now 60, he works at an Apple store in suburban Maryland, unable to find other work while suffering from what he described as post-traumatic stress disorder symptoms.

"I can put myself in her exact shoes," Drake said of Winner. "It wrecks your life."

Thomas Drake, a former National Security Agency whistleblower, said of Reality Winner: “I can put myself in her exact shoes … It wrecks your life.” SPECIAL

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Winner’s and Drake’s cases illustrate the consequences of exposing government material in a nation where federal prosecutors wield the Espionage Act, a World War I-era law aimed at spies. Whistleblowers say it is nearly impossible to mount a defense against it.

Winner, 26, is the former NSA contract worker accused of leaking to the news media a top secret report on Russian election hacking efforts. For the past nine months, she has been incarcerated in a rural jail outside Augusta, and the judge in her case, U.S. Magistrate Judge Brian Epps, won't release her before trial.

The trial date keeps being pushed back. First scheduled to begin Oct. 23, it was then rescheduled to start next week. But Epps on Thursday set a new date of Oct. 15, along with a schedule for attorneys to wade through classified records and for consideration of new motions. One outstanding issue: Winner is asking the judge to throw out the initial statements she made to FBI agents when they arrested her at her Augusta home last year, arguing they didn't advise her of her Miranda rights.

Winner has pleaded not guilty. She is the first person to be prosecuted in the Trump administration’s promised crackdown on leaking. If convicted, she could face up to 10 years in prison and $250,000 in fines.

Meanwhile, publicity around her case has faded as the Russia hacking story has taken new twists and turns, the latest being the Trump administration’s move Thursday to finally impose sanctions against Russian organizations and operatives in retaliation for 2016 election meddling.

Reality Winner’s mother, Billie Winner-Davis, posted this photo of her daughter on her Facebook page. SPECIAL

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Her mother, Billie Winner-Davis, hoped the spotlight on Russian interference would protect her, but she couldn’t get major media outlets interested in covering her daughter’s last hearing.

"I think she's being forgotten," Winner-Davis said. "I think that so many people don't realize that she's still in jail, that this is still ongoing. They don't realize all of the things that are happening with her court case that are really crazy."

In jail, her health has waned, her family says, and she is taking antibiotics for skin infections and cysts. Last month, another inmate attacked her and she suffered a gash on the back of her head, her mother said.

In a letter to The Atlanta Journal-Constitution in June, Winner talked about the jam she's in. She called her unsuccessful attempt to get out of jail on bond "a new low in my life."

“There are no words,” Winner said, “to describe how it felt to have a government prosecutor say to the world that I was … I don’t even know, a jihad sympathizer? I can’t even spell that right, ha.”

More harm than good

While Drake sympathizes with Winner, as does NSA leaker-in-exile Edward Snowden, other whistleblowers castigate her. Her critics say she is neither a hero nor a victim but a naive, reckless leaker whose actions could deter others carrying more explosive government information. They question whether the material she allegedly leaked, and the way the feds say she went about it, qualify her as whistleblower at all.

Melvin Goodman worked in the CIA’s Office of Soviet Affairs before testifying in Congress in 1991 against the confirmation of Robert Gates to lead the agency. SPECIAL

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Melvin Goodman, who worked in the CIA’s Office of Soviet Affairs before testifying in Congress in 1991 against the confirmation of Robert Gates to lead the agency, is skeptical about what the public could gain from the document, given that Russian meddling was already in the news.

"Certainly, what she did wasn't heroic," said Goodman, who teaches international relations at Johns Hopkins University. "What she did was foolish."

Prosecutors allege Winner copied pages from a top secret report, folded them into her pantyhose, walked out of her building, then mailed the documents to a news outlet, which has since been identified as the online website, The Intercept. Two days after Winner's arrest, The Intercept published a story based on the report, saying Russian military intelligence sent spear-phishing emails to more than 100 local election officials and launched a cyberattack against a Florida-based voting software supplier that contracts in eight states.

Mark Zaid, executive director of the James Madison Project, is an attorney for whistleblowers, including current and former federal employees who have grievances with the government. SPECIAL

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Winner doesn't meet the legal definition of a whistleblower because she allegedly handed the document to an unauthorized third party, rather than taking it through proper governmental channels, said Mark Zaid, executive director of the James Madison Project, a government accountability and secrecy reduction group. Zaid won't even call her a whistleblower in the colloquial sense. What got leaked said nothing about any waste, fraud, abuse or illegal activities by U.S. authorities, but rather by Russians, he said.

And the leak might even have aided Russian hackers, Zaid added. They could have used different tactics on different vendors and in different states, and if some targets weren’t mentioned in the report, that would tell the Russians where they were and weren’t detected.

“Sometimes, what’s not in the document could be more valuable than what is in the document,” Zaid said. “And when you’ve got a younger person — although age doesn’t necessarily have to be the sole determining factor — that doesn’t have full understanding of the facts, then serious damage can be done.”

Trevor Timm, an attorney, journalist and activist, is a co-founder of the Freedom of the Press Foundation and the Stand With Reality campaign. SPECIAL

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But Trevor Timm — a lawyer, journalist and activist who co-founded the Stand With Reality support group — said the leak served the public interest, because the federal government apparently hadn't informed states that they had been targeted. One of the states, North Carolina, launched its own investigation.

“Arguing that it damaged national security is quite absurd, given all the other stuff that’s come out,” Timm said. “That goes to the nature of these leak investigations. They often go after the people who are the most powerless, while ignoring leaks from much more powerful individuals that happen all the time.”

Winner’s critics and supporters do agree on one thing: The Trump administration is seeking to make an example out of her.

Jesselyn Radack is a former U.S. Justice Department official who came under criminal investigation after exposing violations in the government’s handling of the case of “American Taliban” John Walker Lindh. SPECIAL

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Jesselyn Radack, a former U.S. Justice Department official who came under criminal investigation after exposing violations in the government’s handling of the case of “American Taliban” John Walker Lindh, noted that Trump had insisted for months that Russia did not try to interfere in the 2016 election. “So I think her original sin is speaking truth to power by contradicting that narrative,” Radack said.

When conscience is irrelevant

Whatever the motive in leaking classified material, it means nothing under the Espionage Act. Nor does it matter whether the leak actually damaged national security, whether exposing it served the public interest, or whether the information was properly classified. All that matters is the underlying act.

“The problem with using the Espionage Act is that it is a strict liability law, so there is no public interest defense,” said Radack, who served as a legal adviser to Drake and Snowden and is on the advisory committee for Stand With Reality. “It doesn’t matter if you supposedly retained or disclosed information to sell to an enemy for profit, or if you revealed information to the press because it was in the public interest to know.”

But if Winner is found guilty, her motive could come into play in sentencing, said Zaid, who is also an attorney for whistleblowers.

Winner-Davis said she still doesn’t know if her daughter actually leaked the document. She can’t talk about it with her, she said, because jail conversations are recorded and she said prosecutors have repeatedly taken Winner’s dry sense of humor out of context.

“I trust that, if Reality did this, she felt it was the right thing to do at that moment,” Winner-Davis said. “I’m more angry with the way that she’s being treated.”

Accused leaker Reality Winner leaves the U.S. District Courthouse in Augusta, Ga., following a bond hearing Thursday afternoon June 8, 2017.  U.S. Magistrate Judge Brian Epps denied bond Thursday for 25-year-old Reality Winner. Prosecutor Jennifer Solari says investigators seized a notebook from Winner's house in Augusta, Georgia, and in it, Winner made references about traveling to the Middle East (Michael Holahan/The Augusta Chronicle via AP)

Credit: Michael Holahan

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Credit: Michael Holahan

Her own life has been upended as a result of the case. Winner-Davis has faced cyberbullying on social media, and, last summer, someone mailed a used piece of toilet paper to her home in Texas. She took early retirement — a $1,500 per month pay cut — so she could spend more time advocating for her daughter’s release on bond.

“I don’t even recognize my life from before right now,” Winner-Davis said.

So if her daughter leaked the top secret NSA document, was it worth it?

"To me, that document that was released was important," Winner-Davis said. The document, she said, gave concrete proof of Russian hacking. "And so there was no denying it anymore."

The price paid

There are parallels between Winner’s and Drake’s cases. Like Winner, Drake had served in the U.S. military as a linguist. And they both have been accused of leaking NSA records to the news media. At one point, Drake said, the chief prosecutor threatened to put him behind bars for the rest of his life.

But unlike Winner, Drake wasn’t held in jail as his trial was pending, though the government confiscated his passport and kept him under continual observation. And before he spoke with The Baltimore Sun reporter in 2006, Drake first shared his concerns about the NSA’s “Trailblazer” surveillance program with his boss, then with the NSA’s inspector general, then with Congress and lastly with the U.S. Defense Department’s inspector general.

He experienced some vindication. In 2004, a heavily redacted Defense Department inspector general audit concluded the NSA “may be developing a less capable long-term digital network exploitation solution that will take longer and cost significantly more to develop.” Two years later, the Trailblazer program — which cost taxpayers $1.2 billion — was abandoned.

Ultimately, the government’s case crumbled, and as part of a plea deal Drake admitted to a single misdemeanor of misusing the NSA’s computer system. He was sentenced to a year of probation and community service. But the judge chastised the government for dragging out the investigation, saying Drake had been put through “four years of hell” and had suffered “financial devastation.”

By then, the damage was done.

Drake sometimes wakes up in a cold sweat, haunted by what he endured. He is hypersensitive to certain sounds. And he believes the government is still monitoring him. He fears he has been blacklisted, but he hopes to teach one day with a doctoral degree he earned last year in public policy and administration. Looking back, Drake said he still would have gone to the press, though sooner.

“My conscience,” he said, “is clear.”

The story so far: Federal agents arrested Reality Winner, who worked for an NSA contractor at Fort Gordon, at her Augusta home on June 3. She is charged with leaking a top-secret report on Russian election hacking efforts to The Intercept. She was denied bond after prosecutors painted her as sympathetic to terrorists and possibly planning to flee the country.

What's new: U.S. Magistrate Judge Brian Epps on Thursday set a new trial date of Oct. 15.

What's next: Winner is awaiting Epps' decision on her request that he throw out her initial statements to FBI agents, arguing they didn't advise her of her Miranda rights.