by Tony Wyman

By the time Reality Winner, a former intelligence specialist in the United States Air Force, goes to trial, she will have been imprisoned for nearly 18 months – more than twice as long as the sentence served by Dinesh D’Souza, who was recently pardoned by President Trump after being convicted of a felony associated with illegal campaign contributions he made in 2014.

Of course, the crime Ms. Winner has been charged with by the U.S. Justice Department is arguably more serious than the one Mr. D’Souza admitted committing. 

Winner was accused of leaking classified information about how Russia’s GRU (Main Intelligence Directorate) planned and executed a cyberattack on at least one U.S. manufacturer of voting machines,  VR Software.

Ms. Winner faces the possibility of 10 years in jail.  But, according to her supporters, she isn’t a criminal, she’s a whistle-blowing hero.

“Had Reality Winner been a high-ranking official, it’s safe to say she wouldn’t be in this position,” said The Courage Foundation, an international organization that supports whistleblowers who risk their lives and freedom to expose secrets the foundation believes the public has a right to know.  “Those in the highest places disclose politically useful Secret information to journalists all the time with complete impunity. Now that a lower-level contractor has allegedly released information the government didn’t want out, she’ll feel the full force of the law.”

By “high-ranking official,” The Courage Foundation means Gen. David Petraeus, who served no time for revealing highly classified information detailing American military and intelligence activities to his biographer, with whom he was having an affair, and to reporters while he served as an Army commander and as director of the Central Intelligence Agency.

In contrast to the way Ms. Winner’s case was handled, Gen. Petraeus’ illegal mishandling of top secret information never resulted in his incarceration. 

Unlike Ms. Winner, no court determined Gen. Petraeus “hated America,” as Federal Judge Brian Epps, justifying his refusal to grant the 25-year-old bail, said of the former intelligence contractor.  Nor did anyone accuse him of “admiring Edward Snowden and Julian Assange,” as Judge Epps accused Ms. Winner in his statement returning her to jail without trial. 

The court that denied Ms.Winner bail somehow believed she was a flight risk who could manage to escape federal authorities and flee the country when another court believed that Gen. Petraeus, a worldly and sophisticated international figure with powerful friends around the world, could not. 

The truth is that Ms. Winner was and remains highly unlikely to attempt to flee the country.  Unlike other whistleblowers such as Edward Snowden, she has no support from a foreign government or other ally who could provide for her the sort of sustainable support she would need to live a life abroad. 

Denying her bail, therefore, seems to be designed more to send a message to other potential whistleblowers that the government will incarcerate suspects indefinitely than it is to ensure Ms. Winner appears at her trial. 

Reality Winner – Her Story Vanishes from Public View

The disparity in the way Ms. Winner and others like Gen. Petraeus have been treated is one thing upsetting her supporters.  But another even greater concern for friends of Ms. Winner is how her case has largely disappeared from public view. 

Since her arrest and incarceration, few in the media have pursued her story further.  In fact, a search of Google shows no stories published by major media outlets on the eve of her first anniversary in prison.

The Intercept, perhaps feeling some responsibility for her arrest –  is one of the few news outlets running stories about Ms. Winner.  It was, after all, their sharing the documents she leaked them anonymously, that allowed the National Security Agency, using the logs they keep of all documents printed at their facilities, to identify her as the source of the leaked material.

In a post made on June 2, 2018, Intercept reporter Trevor Timm noted the inexplicable lack of media attention.

“Winner’s case fell out of the public consciousness. National media pays scant attention to her plight, and many advocates from the left to the center of the political spectrum — all of whom should have ample reason to loudly protest the many injustices in her case — have been largely silent. 

Winner, unfortunately, is caught between two camps — a whistleblower without a constituency — even as her alleged transgression proved a pivotal moment in the hot-burning media story of the investigation into potential attempts by Russia to interfere in the 2016 election.

Winner received wide coverage at the time of her arrest in June 2017. Since then, however, the coverage has fallen off sharply, even though media organizations should have an incentive to extensively cover, and even protest, such leak prosecutions as an affront to press freedom.”

If that is the case, why aren’t media outlets raising flags over the incarceration of Ms. Winner?

One reason is she released only one document, instead of the dozens released by more widely known leakers like Edward Snowden, Julian Assange and Chelsea Manning. 

Each of those three garnered international attention for months after they were identified as the source of leaks of classified information.

Another reason is simply that most whistleblowers get absolutely no attention from the media and the public, at all.

While supporters of Ms. Winner are discouraged about the limited media attention their whistleblower is getting, other families and friends of whistleblowers who got no public support or media attention at all are probably understandably jealous of the little bit Ms. Winner is getting – even though that sort of attention is dubious.

But the major reason media outlets aren’t paying attention to Ms. Winner’s case is that it simply isn’t glamorous enough to stick out from the abundance of stories filling the airwaves about collusion between Trump campaign officials and ever more likely, the president himself – with Russian agents of influence to alter the outcome of the 2016 presidential election.

While the documents that Ms. Winner sent to The Intercept are damning, providing information the public needs to know about how vulnerable the machines they use to cast their ballots for president and other elected officials are to Russian hacking, they simply aren’t sexy enough to drive up ratings and readership.

The Importance of Leaks vs. The Importance of National Security 

While Ms. Winner’s information wasn’t sexy, it was important.  It forced the media and the public to take the prospect of Russia hacking the equipment we use to vote seriously.  Since this information came to public attention, states all over the country have demanded companies like VR Software upgrade the security of their systems.

USA Today reported in February that many states are now encrypting their voting systems to prevent hackers from breaking into them.  Congress passed a bill providing $380 million in funding to improve the nation’s outdated voting machine systems.  And states will be watching closely for voting irregularities in the upcoming November elections.

But does this increased awareness of the threat posed by Russian agents justify Ms. Winner’s actions leaking highly classified information to a media outlet? 

The question really is what serves the public interest the most, secrecy or disclosure, and who gets to make that decision?

In this case, an argument can be made that the information never should have been classified top secret in the first place and that the public had a right to know their elections were potentially jeopardized by the vulnerability of antiquated voting equipment. 

The Intercept’s Mr. Timm said:

“There is no doubt that the document allegedly released by Winner served the public interest. Election officials in North Carolina have publicly stated they started an investigation into voter roll compromise based on the document that Winner is accused of releasing. One county official in North Carolina told NPR, ‘When you have a leaked memorandum indicating that there may have been a vulnerability about which you were not aware at the time, you’re going to want to try to confirm that there was no actual interference.’”

Others have made similar arguments, including the Atlantic’s Conor Friedersdorf who, in 2014, argued that journalists should be protected against criminal prosecution for publishing classified data.  He said, in an article entitled, “Why It Shouldn’t Be Criminal to Report Government Secrets,” that prosecuting leaks is costly, provides virtually no benefit to society, and is largely an exercise in futility at a time when virtually everyone can reach a mass audience through social media.

“On scores of prominent occasions, journalists have published classified information that served the national interest in significant ways. We can all think of multiple examples and public goods that directly resulted. Whereas it is very difficult to think of a classified secret exposed by journalists that caused significant harm. Ponder the damage done by history’s most harmful journalism-enabled leaks. What are they? It’s telling that no examples come to mind.”

The question in this age when anyone can create a news site on the Internet, for example, like this one, who, exactly, is a journalist?  And what medium qualifies as a news site?  Does the government make the distinction?  Does it decide which Facebook page, for example, is a “news site” and which one is just a social media page? 

And, if it does make such a distinction, what criteria does it use to make the determination?  On top of that, does the government then have to issue licenses to sites it approves as “news sites” protected under the freedom of the press provisions of the First Amendment.  And if it doesn’t issue licenses, then is it, by omission, essentially saying that everyone who reports news, no matter what medium they use to dispense information, is a journalist?

But Damon Linker, writing at the same time for The Week makes a compelling counter-argument that the government plays an important role in keeping vital information secret and that they alone should decide what information is classified and withheld from the public and what is shared.  In reply to Mr. Friedersdorf’s article, he wrote: 

“Permitting journalists to publish anything and everything that gets leaked to them, under no possible threat of prosecution, would make it nearly impossible to prosecute a leaker, since the harmlessness of the leak would automatically be demonstrated the moment a journalist makes the decision to publish the classified information.”

He goes on by stating that Mr. Friedersdorf’s assertion that, essentially, thanks to social media, we are all journalists is precisely why the government must play a role in classifying information and prosecuting those who willfully violate restrictions against giving that information to the public. 

“We seem to have a problem. Either anyone or everyone gets to make the call, rendering state secrets impossible, or we need some independent authority to decide who is and who is not empowered to make the call.”

He adds:  

“Government (elected officials, appointees, and judges) deciding what gets and stays classified. In that system, both leaking and publishing classified information are treated as crimes, albeit crimes for which leakers and journalists are rarely punished, with the benefit of the doubt usually swinging in their favor.

This system isn’t perfect. Free speech absolutists don’t like it, and understandably so, because it makes government secrecy the legal principle and press freedom an exception dependent on the prudential judgment of prosecutors and judges.  But in a world where secrets are necessary, this may be the best that a democracy can do.”

Deciding who is and who isn’t a journalist might solve one problem brought to light by Ms. Winner’s case, but it doesn’t address a second question that is just as important: is the government over-classifying information to avoid accountability?

Classification vs. Over-Classification

Critics of the government’s practice of classifying documents have complained for years that Washington uses its power to withhold information from the public to avoid accountability before the people.  In a 2011 report issued by the Brennan Center for Justice, the authors pointed out the government has a history of withholding information from the people who had both a right and a need to examine and review.

“From the early days of the Cold War, when the government classified information to hide the truth about human radiation experiments and a congressional subcommittee found that examples of overclassification “ranged from the amusing to the arrogant,” to the current struggle against terrorism, in which overclassification has become a “barrier (and often an excuse) for not sharing pertinent information with homeland security partners,” needless secrecy has reigned, despite efforts to curb it. Checks against overclassification have proven insufficient, and proclamations made on paper have failed to take hold on the ground.” 

In Miss Winner’s case, it is hard for the government to argue that the public didn’t have a right to know the Russians had, potentially, compromised the integrity of the presidential election in at least eight states. 

It is equally hard to argue that divulging that information harmed national security.  The Russians were certainly aware that our intelligence services had discovered their efforts to hack into our systems, so making that information available to the public neither compromised ongoing operations combating the GRU nor exposed sensitive data about techniques our counter-espionage agents used to learn what our adversaries were up to. 

If that is the case, why was the information about the hacking classified, in the first place? 

The Intercept did state in their article they were asked by the NSA to redact some information contained in the report for national security purposes.  In response, The Intercept said: 

“Officials requested that we not publish or report on the top secret document and declined to comment on it. When informed that we intended to go ahead with this story, the NSA requested a number of redactions. The Intercept agreed to some of the redaction requests after determining that the disclosure of that material was not clearly in the public interest.” 

But, while they agreed with the NSA that some of the details in the report should be classified, they disagreed that the public should be kept ignorant about the scope of the threat Russian hackers presented to the integrity of the American election process.  On that issue, they said:

“Whatever the investigation into the Trump campaign concludes, however, it pales in comparison to the threat posed to the legitimacy of U.S. elections if the infrastructure itself can’t be secured.”

Considering the very foundation of the election process; the belief agreed upon by the victor and the defeated in every election that the balloting was fair and honest, was threatened by the action of the Russian hackers, why did the NSA believe in the first place that the American people should be kept in the dark about the “threat posed to the legitimacy” of our democracy?

In a recent article in support of Ms. Winner, The Intercept’s Trevor Timm wrote:

“A few weeks ago, a Senate report suggested multiple states were alerted to potential hacking attempts by The Intercept’s report before the government itself actually told them. This is information that should have immediately been declassified. The idea that someone should be prosecuted for releasing it should be an outrage – especially now that the federal government and states are now discussing it so openly. If the world were just, Reality Winner would be the poster child for these Democratic political advocates. Instead, she is forgotten. They, above all else, should see that no one should be sitting in jail for years for giving information in the public interest to journalists.”

When Ms. Winner’s case comes to trial in October, just weeks before the mid-term elections, hopefully she will gain enough public attention that the country can have an open and frank conversation about the integrity of our election process and how important to all of us that the system guarantee that each time Americans go to the polls, they end up with the elected officials they choose – instead of the ones chosen by the Russian GRU.

That would make not only the defendant a winner – but citizens calling for transparency and accountability, winners as well.

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