Statement on Justice Department Allegations
June 6 2017, 5:40 p.m.
On June 5 The Intercept published a story about a top-secret NSA document that was provided to us completely anonymously. Shortly after the article was posted, the Justice Department announced the arrest of Reality Leigh Winner, a 25-year-old government contractor in Augusta, Georgia, for transmitting defense information under the Espionage Act. Although we have no knowledge of the identity of the person who provided us with the document, the U.S. government has told news organizations that Winner was that individual.
While the FBI’s allegations against Winner have been made public through the release of an affidavit and search warrant, which were unsealed at the government’s request, it is important to keep in mind that these documents contain unproven assertions and speculation designed to serve the government’s agenda and as such warrant skepticism. Winner faces allegations that have not been proven. The same is true of the FBI’s claims about how it came to arrest Winner.
We take this matter with the utmost seriousness. However, because of the continued investigation, we will make no further comment on it at this time.
Hey Intercept, Something is Very Wrong with Reality Winner and the NSA Leak
June 6, 2017
https://wemeantwell.com/blog/2017/06/06 ... -nsa-leak/
A 25-year-old improbably-named Reality Winner leaves behind a trail long and wide on social media of anti-Trump stuff, including proclaiming herself a member of The Resistance. Never mind, she takes her Top Secret clearance with her out of the Air Force (she had been stationed with the military’s 94th Intelligence Squadron out of Fort Meade, Maryland, co-located with the NSA’s headquarters) and scores a job with an NSA contractor. Despite the lessons of too-much-access the Snowden episode should have taught the NSA, Winner apparently enjoys all sorts of classified documents — her Air Force expertise was in Afghan matters, so it is unclear why she would have access to info on Russia hacking of U.S. domestic companies.
Within only about 90 days of starting her new job, she prints out the one (and only one apparently, why not more?) document in question and mails it to The Intercept. She also uses her work computer inside an NSA facility to write to the Intercept twice about this same time.
Winner has a clearance. She was trained as a Dari, Pashto, and Farsi linguist by the Air Force. She knows how classified stuff works. She has been told repeatedly, as all persons with a clearance are, that her computer, email, printing, and phone are monitored. She mailed the document from Augusta, Georgia, the city where she lives and where the NSA facility is located. She practiced no tradecraft, did nothing to hide her actions and many things to call attention to them. It is very, very unclear why she took the actions she did under those circumstances.
The Intercept meanwhile drops by their friendly neighborhood NSA contact and shows them the document. NSA very publicly confirms the veracity of the document (unusual in itself, officially the Snowden and Manning documents remain unconfirmed) and then makes sure the open-court document filed is not sealed and includes the information on how the spooks know the leaked doc was printed inside the NSA facility. Winner went on to make a full confession to the FBI. The upshot? This document is not a plant. The NSA wants you to very much know it is real. The Russians certainly are messing with our election.
But funny thing. While the leaked NSA document seems to be a big deal, at least to the general public, it sort of isn’t. It shows one piece of analysis suggesting but not confirming the GRU, Russian military intelligence, tried to steal some credentials and gain access to a private company. No U.S. sources and methods, or raw technical intel, are revealed, the crown jewel stuff. There is no evidence the hack accomplished anything at all, never mind anything nefarious. The hack took place months ago and ran its course, meaning the Russian operation was already dead. The Russians were running a run-of-the-mill spearfishing attack, potentially effective, but nothing especially sophisticated. You get similar stuff all the time trying to harvest your credit card information. The leaked document looks like a big deal but isn’t.
Another issue. The Intercept has a lot of very smart people working for it, people with real-world intelligence and tradecraft experience. People who know about microdot encoding on printed documents, one of the tells here, and people who know they don’t show their whole hand when asking the NSA for a comment. The Intercept journalist volunteered to an NSA contracting company that the envelope received was postmarked to Augusta, where Winner lived and worked. Like Reality Winner and her own security training, it is very, very unclear why the Intercept took the actions it did under those circumstances.
So For Now…
So, look, what we know about this story may represent .01% of the whole picture, and that tiny sliver of visible information is only what the government has chosen to reveal. And sometimes a coincidence is just a coincidence. Sometimes smart people make dumb mistakes.
An NSA document purporting to show Russian military hacker attempts to access a Florida company which makes voter registration software is sent anonymously to The Intercept. A low-level NSA contractor, Reality Winner, above, is arrested almost immediately. What’s wrong with this picture? A lot.
Start with the question of who benefits — cui bono— same as detectives do when assessing a crime.
— Trump looks bad as another trickle of information comes out connecting something Russian to something 2016 election. Intelligence community (IC) looks like they are onto something, a day or so before ousted FBI Director James Comey testifies before Congress on related matters.
— The Intercept looks like it contributed to burning a source. Which potential leaker is going to them in the future? If potential leakers are made to think twice, another win for the IC.
— The FBI made an arrest right away, nearly simultaneous to the publication, with the formal charges coming barely an hour after The Intercept published. The bust is sure thing according to the very publicly released information. No Ed Snowden hiding out in Russia this time. IC looks good here.
— More evidence is now in the public domain that the Russians are after our election process. Seems as if the IC has been right all along.
What Happened is… Curious and Curiouser…
Now let’s look at what we know so far about how this happenedBut that’s not the way you place your bets, especially when dealing with the IC who are good at these kinds of games. At this very early stage I’m going to say there are too many coincidences and too many mistakes to simple shrug it all off. Too many of the benefits in this have accrued on the side of the IC than is typical when a real whistleblower shares classified documents with a journalist.
If it frightens you that I invoke the question of the Deep State using journalists to smear the President, just forget I said anything. But if we’re willing to believe the Russians somehow successfully manipulated our entire society to elect their favored candidate, then we can at least ask a few questions.
Otherwise, if anyone hears Winner’s lawyer use the word “patsy,” let me know, OK?
BONUS: Matt Cole, one of The Intercept journalists credited to this story, was also involved in the outing of source CIA officer John Kiriakou in connection with CIA torture claims. Small world!
https://wemeantwell.com/blog/2017/06/06 ... -nsa-leak/
Definition of smoke screen
: a screen of smoke to hinder enemy observation of a military force, area, or activity
: something designed to obscure, confuse, or mislead
A limited hangout or partial hangout is, according to former special assistant to the Deputy Director of the Central Intelligence Agency Victor Marchetti, "spy jargon for a favorite and frequently used gimmick of the clandestine professionals. When their veil of secrecy is shredded and they can no longer rely on a phony cover story to misinform the public, they resort to admitting—sometimes even volunteering—some of the truth while still managing to withhold the key and damaging facts in the case. The public, however, is usually so intrigued by the new information that it never thinks to pursue the matter further."
Luther Blissett » Wed Jun 07, 2017 3:51 pm wrote:It almost reads as though the agency leaked this themselves with the cooperation of the Intercept and fingered her knowing her vocal social media proclivities.
Heroes of the #Resistance ... we have a Reality Winner
Tuesday Jun 06, 2017 · 11:23 AM
http://www.dailykos.com/story/2017/6/6/ ... ity-Winner
her vocal social media proclivities.
MacCruiskeen » Thu Jun 08, 2017 12:30 am wrote:Luther Blissett » Wed Jun 07, 2017 3:51 pm wrote:In any case: Reality's "vocal social media proclivities" produced "radical" "oppositional" statements wholly indistinguishable from a WaPo editorial, except that they were translated into shallow youthspeak and therefore included a few f-words[/url]
2017-0125.zip Reality Winner Court Exhibit Doc 112, October 4, 2017
2017-0122.zip Reality Winner Court Exhibits Docs 104-110, October 4, 2017 (13MB)
2017-0118.pdf Reality Winner Arrest and Interrogation via Politico, October 1, 2017 (2.8MB)
Mother of Accused NSA Leaker Reality Winner: My Daughter Wasn't Read Her Miranda Rights
Friday, March 02, 2018
By Amy Goodman, Democracy Now!
On Tuesday, former US intelligence contractor Reality Leigh Winner appeared in court in Augusta, Georgia, where her lawyers asked the judge to exclude her statements to FBI agents on the day she was arrested, arguing she was denied her Miranda rights. Winner is a former National Security Agency contractor who has pleaded not guilty to charges she leaked a top-secret document to The Intercept about Russian interference in the 2016 election. She is facing up to 10 years in prison on charges she violated the Espionage Act. For more, we speak with two guests. In Chicago, we're joined by Kevin Gosztola, a journalist and managing editor of Shadowproof Press. He was in the courtroom in Augusta on Tuesday, and his recent article is titled "In Reality Winner's Case, Defense Seizes Upon FBITestimony to Bolster Motion to Suppress Statements." And in Augusta, Georgia, we speak with Reality Winner's mother, Billie Winner-Davis. She's joining us from her daughter's house, where Reality Winner was questioned and arrested by FBI agents on June 3.
AMY GOODMAN: We begin today's show with updates in the case of former US intelligence contractor Reality Leigh Winner, who's facing up to 10 years in prison on charges she violated the Espionage Act. Winner is a former National Security Agency contractor who's pleaded not guilty to charges she leaked a top-secret document to The Intercept about Russian interference in the 2016 election.
Reality Winner was arrested by FBI agents at her home in Augusta, Georgia, on June 3rd, two days before The Intercept published an exposé revealing Russian military intelligence conducted a cyberattack on at least one US voting software company just days before the US presidential election last November. The exposé was based on a classified NSA report from May 5th, 2017, that shows that the agency is convinced the Russian General Staff Main Intelligence Directorate, or GRU, was responsible for interfering in the 2016 presidential election.
Reality is the first whistleblower to be accused of violating the Espionage Act under the Trump administration. She's been denied bail and has been jailed since June. On Tuesday, she appeared in court in Augusta, Georgia, in orange jumpsuit and shackles, where her lawyers asked the judge to exclude her statements to the FBIagents on the day she was arrested, arguing she was denied her Miranda rights.
Well, we're joined right now by two guests. In Chicago, Kevin Gosztola is with us, managing editor of Shadowproof Press. He's been covering Reality Winner's case and has just come back from Augusta. He's also covered several whistleblower cases, including Chelsea Manning's. He was in the courtroom in Augusta Tuesday. And his recent article is headlined "In Reality Winner's Case, Defense Seizes Upon FBI Testimony to Bolster Motion to Suppress Statements." But first we go to Augusta, Georgia, where we're joined by Reality Winner's mother, Billie Winner-Davis. She's joining us from her daughter's home, where Reality was questioned and arrested by FBI agents on June 3rd.
We welcome you both to Democracy Now! Billie Winner-Davis, let's begin with you. As you sit in Reality's home, talk about what you understood happened that first weekend of June in 2017. Walk us through this.
BILLIE WINNER-DAVIS: Well, on June 3rd, Reality returned from a trip to the grocery store, and she was immediately approached by male FBI agents at her home. They advised her that they had a search warrant -- they had search warrants for her home, her car and her person. She cooperated with them fully. They took her cellphone. They took her keys. They asked her if she had a place -- if she wanted to basically be interviewed here at her home or if she wanted to go down to the FBI office. She agreed to be interviewed here at her home. They asked if she had a place that they could interview her that was away from everything. She advised them that she did have a spare back room, a bedroom here in the house. She advised them that she was not comfortable going into that room. She called the room creepy and weird. They nevertheless led her to that room to interview her with regard to their investigation.
This week, in court, her lawyers argued that, basically, the actions that the FBIagents took were actions that confined her. They had her in their custody. She never felt at any time that she was free to leave. And in fact, her actions during the interview and during the whole process told them that she felt like she wasn't free to leave. She asked for permission to move about. She asked for permission to even use the restroom, which they gave her. She was at all times accompanied by agents. And on that day, it was 11 FBI agents that came into this home to either interview her or search her. And so -- and it is a very small home. And so, basically, I get the impression that it was very frightening, it was very intimidating, for her that day.
AMY GOODMAN: Billie, the FBI agents were armed?
BILLIE WINNER-DAVIS: Yes. From what we've learned, nine of the 11 FBI agents and personnel here at her home that day were armed.
AMY GOODMAN: And they immediately took her cellphone and her car keys, and they said -- and they took her into that room that she has described as creepy?
BILLIE WINNER-DAVIS: Yes, that is correct. That is correct. And at no point did they return her cellphone to her, return her car keys to her. We saw photographs which definitely showed that her car was surrounded. There would have been no physical way for her to even leave in her vehicle if she wanted to. And so, the argument that the defense made this week was a strong one, that she was basically being held here.
AMY GOODMAN: Was she read her Miranda rights?
BILLIE WINNER-DAVIS: Yes, ma'am? No, she was never read her Miranda rights. And the FBI agents did admit to that. They did admit that at no time did they read her Miranda rights or did they feel like they had to do that.
AMY GOODMAN: And this is what's at issue, is that right? Her lawyers want to suppress her statements to the FBI, saying she was not read her Miranda rights, not told she could remain silent or have a lawyer with her.
BILLIE WINNER-DAVIS: That's correct. That's correct.
AMY GOODMAN: Kevin Gosztola, you've not only covered this trial, but others. Can you talk further about what this means? What happened to Reality on that day?
KEVIN GOSZTOLA: [inaudible] rights, which goes to, you know, due process issues and whether a person has a right to remain silent. One of the aspects of the law that is at issue here is something that I didn't really know, until this case, existed: a concept called custodial interrogation. And FBI agents apparently can come into your home, and if you're not in a police-dominated atmosphere, if a court of law doesn't determine that police took over this area, then in fact you were never detained or arrested, and they can basically manipulate or have their way with you. And so, what the judge is looking at here is whether enough factors appear where she is actually in custody. And if that's the case, if the judge agrees with the defense, what they've listed off and what Billie was talking about, then, in fact, the judge may rule that her rights were violated.
And some other things that were talked about is the fact that, you know, she had a search warrant for her person -- or the FBI had a search warrant for her person. And when they came there, the government wants to maintain that they executed it when they took the cellphone. But about 28 minutes into this whole encounter, another agent, who did not take the stand, Wally Taylor, said something about still having a search warrant for her person. Nobody is free to leave if the FBI still has a search warrant to execute against you. And so, clearly, she couldn't have left her home and just wandered to the convenience store, as the government talked during the hearing.
Another aspect that's important is that she was regarded, even before this encounter, as someone who was a danger to the community. That's how the FBI viewed her. They also viewed her as a potential target of foreign intelligence. One way that the defense really tried to poke at the government's arguments that they didn't do anything wrong was to say that if you have somebody in their home and they're isolated in this way and they're surrounded by a surveillance team, you're not really going to let them leave and go into the community. You know, if we're going to follow your logic, you wouldn't have let Reality Winner leave her house.
AMY GOODMAN: So, Billie Winner-Davis, you know your daughter well. She's an Air Force veteran -- her rank, senior airman; her last duty, cryptologic language analyst. She had been stationed at Fort Meade, Maryland, before working in Augusta. That military training, with having FBI come in, what would be her assumption, now stripped of phone, car keys, asking to go to the bathroom?
BILLIE WINNER-DAVIS: Right. All of her actions that day -- and when you read the transcript, and we heard clips of the audio -- all of her actions that day told us that she did never -- she never felt like she was free to leave. And I know, in talking with her shortly after the incident, she did indicate to me that she was frightened. I heard her voice on the audio. I heard it shaking. The prosecution tried to make it seem that this was a very casual encounter, almost like one that would occur at Starbucks. But what I heard on the audio was far from that. Her voice was shaking. Yes, she was making small talk, and she was making jokes, and she was laughing. But that's out of nervousness. They twisted a lot of things to try to make it look like this was a very mild encounter that she had with FBI agents at her home.
But anyone puts themselves in her situation -- 11 male armed FBI agents -- nine of them armed, but 11 male FBI agents have come into your home. Two of them have taken you to the back room in your house, where you have already told them you are not comfortable. You are asking permission to make any movements in your home. She was never under the impression that she was free to leave. And, therefore, I believe she was in their custody.
AMY GOODMAN: Billie Winner-Davis and Kevin Gosztola, we have to break. We're going to come back to this discussion. Billie Winner-Davis is the mother of Reality Winner, who faces 10 years in prison. She has been now jailed for nine months, brought into a courtroom this week in an orange jumpsuit and shackles. We'll also continue with Kevin Gosztola, speaking to us from Chicago, just back from Augusta, where the courtroom scene played out this week. Stay with us.
This piece was reprinted by Truthout with permission or license. It may not be reproduced in any form without permission or license from the source.
http://www.truth-out.org/news/item/4372 ... nda-rights
Reality Winner's Lawyers Say FBI Interrogation Was Unconstitutional
Lawyers for the Air Force veteran accused of leaking a classified document are asking a judge to suppress comments she made to the FBI during a search of her home last year.
By R. Robin McDonald | UPDATEDFeb 27, 2018 at 04:28 PM | Originally published on Daily Report Online
Reality Winner Reality Winner
Calling the FBI’s interrogation of accused media leaker Reality Winner a violation of her constitutional rights, Winner’s defense team is asking a federal judge to throw out the statement that led to her arrest.
On Tuesday, the team will square off with the lawyers from the Justice Department and the U.S. Attorney’s Office in Augusta at a suppression hearing before Magistrate Judge Brian Epps. The hearing centers on whether Winner’s lengthy interrogation by the FBI at her Augusta home on June 3, 2017, was voluntary or instead a “custodial interrogation” that required agents to advise Winner of her right to counsel and to remain silent.
Federal prosecutors have acknowledged that the FBI did not deliver a Miranda warning, but they have argued that Winner voluntarily talked as nearly a dozen agents swarmed her home.
Winner, 26, has been jailed without bond since she was arrested at the close of the June 3 interview. She is charged with espionage for allegedly leaking a single classified document to a news organization.
Winner was arrested shortly after The Intercept published a redacted version of the document, along with a story reporting that Russian hackers penetrated the nation’s election infrastructure.
Federal prosecutors have argued that Winner—a U.S. Air Force veteran who worked for a National Security Agency contractor in Augusta—told the FBI she was the culprit.
Winner’s lawyers are not conceding anything. They are expected to argue Tuesday that the circumstances of Winner’s interview belies the FBI’s contention that it was voluntary and that she could have ended it at any time.
Whether Winner should have been given a Miranda warning turns on whether she believed she was in custody or was free to go at any time.
Winner’s lead counsel, Joe Whitley of Atlanta’s Baker Donelson, declined to comment. But defense pleadings contend that multiple actions by the agents clearly signaled Winner was in custody. Among them:
FBI agents informed Winner they had search warrants for her residence, her car and her person, suggesting she was not free to leave until she was frisked.
Agents took Winner’s car keys and cellphone as she arrived home from the grocery store.
Winner was never advised that she was not in custody. When she asked if she was going to be arrested, agents hedged, according to defense lawyers and a transcript of the conversation, telling her they did not know.
Winner was not searched until after her arrest—another indication that she was not free to leave.
Agents remained at Winner’s side as she put away groceries, including perishables that had been sitting in her car in the summer heat, when they began their inquiry.
Agents also accompanied Winner as she leashed her dog and secured her cat.
At one point, Winner also felt compelled to ask permission to go to the bathroom, asking agents, “How’s that going to work?” according to a transcript of her interview.
After asking if there was a place they could speak privately, agents directed Winner to a small, unfurnished room she said she didn’t like.
During the interview, two agents blocked the entrance and questioned her as Winner faced them with her back against the wall.
At the end of the interrogation, she was arrested rather than released.
Agents also made what the defense described as “accusatory statements … that the evidence against her was ‘very, very, very compelling’ and that she was ‘the most likely candidate by far and away.’” They also told her she was “the prime suspect” in the possible mishandling of classified information.
A response from prosecutors was likely filed under a broad blanket of confidentiality issued by Epps last year.
But some of their arguments are summarized in defense pleadings. Prosecutors emphasized that the FBI not only advised Winner that answering their questions was voluntary but that Winner “did not believe she was in any type of custody” because she had made casual comments about using her phone and teaching yoga the following day. The defense dismissed the argument as “reading Ms. Winner’s mind.”
Prosecutors also argued Winner never asked to end the interrogation or leave.
Winner’s defense also accused prosecutors of making unsupported assertions about the circumstances surrounding the search. Prosecutors claimed agents’ firearms were not visible, insisted that agents did not block Winner’s path when they questioned her and contended the search warrant of her person was complete when she surrendered her phone.
The defense also said federal prosecutors “spent pages” focusing on the “calm conversational tones” and “gentle, non-accusatory language” agents allegedly used in interrogating Winner.
“Separate and apart from the fact that federal law enforcement is known to utilize this tactic in an effort to elicit incriminating responses, these ‘soft’ factors do not convert an otherwise custodial interrogation into one that does not require Miranda warnings, one defense pleading said.
https://www.law.com/dailyreportonline/2 ... 0203152112
REALITY WINNER SEEKS TO USE TRUMP’S DENIALS OF RUSSIAN HACKING IN HER DEFENSE
March 4, 2018/0 Comments/in 2016 Presidential Election, Leak Investigations, Mueller Probe, Russian hacks /by emptywheel
Last week, Reality Winner had a hearing on her bid to get her interview with the FBI thrown out because they didn’t issue her a Miranda warning (Kevin Gosztola covered and and discussed it on Democracy Now). Given the precedents on Miranda, I think that bid is unlikely to succeed.
But there is a tack her defense is taking that, as far as I’ve seen, has gotten no notice, one that is far more interesting. Winner is seeking to use Trump’s comments denying that the Russians hacked the election to argue the document she is accused of leaking to The Intercept isn’t actually national defense information.
In her discovery requests, Winner asked for three (entirely redacted) categories of documents “reflecting statements made by high-ranking governmental officials regarding information contained in the document,” all of which were denied (see PDF 87).
A discovery appeal submitted in January (but only released on February 13) makes clear that Winner’s defense attorneys are going to argue that the intelligence in the report she is accused of leaking cannot be National Defense Information because the President’s statements would be taken to suggest the intelligence is not true.However, high-ranking government officials, including the President of the United States, have made statements undermining and/or contradicting that contention. 44 That, is of great import because, if the information in the Document is inaccurate (as the President and other high-ranking officials have said), it cannot be NDI. While the defense may seek to capture some of this information in the public domain, 45 it cannot capture statements made privately by these high-ranking officials.
Bill Leonard, the former head of the federal classification authority, ISOO, who has served as expert witness on two other cases involving Espionage charges, laid out the logic of the argument this way (PDF 102-3)
[T]here are governmental actors, including high-level governmental actors (such as the President of the United States), that have made conflicting and/or contradicting statements in comparison to the Government’s position here. In other words, these high-level governmental officials have made statements undermining the veracity of the information contained in the Document, which would impact whether the Document actually contains “national defense information” because, if inaccurate, the Government’s contention that its disclosure could harm the national security of the United States would be severely undermined. Indeed, the President is the highest level of authority in our classification system and has virtually unrestricted access to information in our intelligence system. He is, therefore, in the best position to know the particulars of any piece of intelligence, including its sensitivity and its veracity. Consequently, records reflecting statements made by high~ranking governmental officials, including and in particular, the President of the United States, relating to the information contained in the Document (including statements contradicting the truth or veracity of the information at issue) are highly relevant and are critical to the determination of whether or not it is closely held and/or whether or not its disclosure would potentially damage the national security.
There are a number of other challenges the government is facing with this case (not least that — as I’ve pointed out — similar information has been leaked to the press without any apparent prosecution arising from it).
But Trump’s self-interested denials are the most interesting. After all, he cannot admit that Russia affected the election, because he has staked so much on the claim that will lessen his legitimacy (not to mention any risk such an admission exposes him to in the Mueller investigation). As Leonard notes, the entire classification system is built on presidential authority, and if he says something isn’t true, it will seriously undermine any claim a prosecutor can make at trial that Winner leaked true National Defense Information.
Effectively, some prosecutor will be in a position of having to point out what we all know, that the President is a liar. Given Trump’s propensity towards rage-induced firings, I imagine the government would like to avoid this pickle.
https://www.emptywheel.net/2018/03/04/r ... r-defense/
REALITY WINNER: THE COST OF MOUNTING A DEFENSE ARGUING THE GOVERNMENT OVERCLASSIFIES
March 10, 2018/8 Comments/in 2016 Presidential Election, Cybersecurity, emptywheel, Leak Investigations /by emptywheel
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.
https://www.emptywheel.net/2018/03/10/r ... lassifies/
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.
https://www.emptywheel.net/2018/03/10/r ... lassifies/
Reality Winner to take a plea deal in NSA leak case
16 hours ago
By Johnny Edwards Jeremy Redmon, The Atlanta Journal-Constitution
After a year of duking it out in federal court over allegations that she leaked top-secret government intelligence, former National Security Agency contractor Reality Winner has agreed to a plea deal.
“I do know that she has always been ready and willing to accept responsibility for any wrongdoing, and that she will accept the consequences,” her mother, Billie Winner-Davis, told The Atlanta-Journal Constitution on Thursday.
Documents show the agreement was received by the court on Thursday after an 18-minute conference call on Wednesday with U.S. Magistrate Judge Brian Epps.
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Winner-Davis, who has maintained a social media presence highlighting her daughter’s case, said she has spoken only briefly to Reality’s attorneys about the change in plea, and only in guarded terms. She said she did not know what charges her daughter would plead to or what the negotiated punishment would be.
Charged under the federal Espionage Act, Winner faced 10 years in prison and $250,000 in fines. Her trial had been scheduled for Oct. 15.
Winner, a 26-year-old former U.S. Air Force linguist who grew up in rural Texas, is accused of leaking a top-secret government report about Russian meddling in the 2016 presidential election. At the time, she worked as an NSA contractor at Fort Gordon, near Augusta. The Intercept, the online news outlet that allegedly received the document, has since admitted some fault in its handling of the leaked report, which court records say led investigators to Winner’s door.
Winner’s case has attracted international attention, garnering impassioned support from the left and rebuke from the right. Since her arrest, her family and an assortment of support groups have waged a protracted battle in the court of public opinion, speaking out to news reporters, penning articles in The Intercept, and operating the site StandWithReality.org.
Earlier this month, the federal judge who would have presided in her case admonished attorneys not to speak publicly about the case after a billboard went up in the Augusta suburbs portraying Winner as an imprisoned hero and the federal government as her oppressor.
Winner-Davis speculated that the Espionage Act — which takes only the underlying act of leaking into account, not motive or mitigating circumstances — was too difficult to fight. Her daughter’s legal team suffered one defeat after another in rulings handed down by the judge, and Epps declined to release Winner from jail while her charges were pending.
“I’m not happy about it,” Winner-Davis said of the plea deal. “I still feel like the espionage charge is wrong. I feel like it’s harsh. I feel like it doesn’t allow a defendant to defend themselves.”
Whatever happens in court next week, she said she will continue to fight to clear her daughter’s name: “Regardless of what she’s been charged with, she’s not a traitor to this country.”
One of Winner’s attorneys, Titus Nichols, declined to comment other than to confirm a change of plea hearing is scheduled for Tuesday. A federal prosecutor also declined to comment.
This will mark the second guilty plea in Trump’s anti-leak drive. In April, former FBI Special Agent Terry Albury pleaded guilty to one count of making an unauthorized disclosure of national defense information and one count of unlawful retention of national defense information. He faces a maximum sentence of 10 years in prison per count.
Under President Barack Obama’s administration, leak cases often ended with pleas to minor offenses. A former NSA official in 2011 pleaded guilty in Maryland to one misdemeanor count of exceeding his authorized use of an NSA computer. The Justice Department agreed to drop 10 more serious previous criminal charges against Thomas Drake, who was sentenced to probation. He was accused of discussing classified information with a Baltimore Sun newspaper reporter. That reporter wrote stories about problems with NSA’s secret surveillance programs.
In 2012, former CIA officer/counter-terrorism official John Kiriakou pleaded guilty to a single charge of disclosing classified information to a journalist. He was sentenced to 30 months in prison after being accused of identifying an undercover operative involved in the use of waterboarding during the Bush administration. He says he was sent to prison for revealing torture.
In 2015, retired Gen. and former CIA director David H. Petraeus pleaded guilty to a misdemeanor charge of mishandling classified materials and was sentenced to 2 years of probation and a $100,000 fine. He admitted giving handwritten journals with classified information to his mistress and then lying about it to the FBI. He had been charged with felonies but refused to plead guilty.
In 2016, Gen. James E. Cartwright, who was vice chairman of the Joint Chiefs of Staff, pleaded guilty to lying to the FBI about his discussions with reporters about Iran’s nuclear program. Obama pardoned him in January 2017, just before Trump took office.
https://www.ajc.com/news/national-govt- ... FEZ7VyN2I/
The Consul » Tue Jun 06, 2017 7:03 pm wrote:Poor young woman, her life is now in ruins. They're going to crucify the little snowflake in a spectacular fashion.
Don't see how any half brained leaker would even think of contacting The Intercept now. Their wheels are completely covered in shite. They either played her or got played. The smartest investigative journalists? Hardly.
What are they really up to?
seemslikeadream » Tue Jun 06, 2017 4:48 pm wrote:Snowden: Prosecuting NSA Leaker Reality Winner Is a 'Fundamental Threat to the Free Press'
Jun 6 2017, 4:40pm
"To hold a citizen incommunicado and indefinitely while awaiting trial for the alleged crime of serving as a journalistic source should outrage us all."
On the very same day that The Intercept published classified NSA documents describing Russian efforts to hack American voting infrastructure, the Department of Justice announced the arrest of Reality Leigh Winner, a federal contractor from Augusta, Georgia, who is charged with "removing classified material from a government facility and mailing it to a news outlet."
There have been other leaks of classified information to the press in the past few years (for example, the drone papers, also published by The Intercept) but none have had a name and a face tied to them since the Snowden revelations in 2013. Winner can be said to be, in a sense, the newest Edward Snowden.
Snowden himself, who had been proactive in advocating for whistleblower rights in the years since, has now given an official statement through the Freedom of the Press Foundation on Winner's arrest, expressing concern about the charges brought against her. "The prosecution of any journalistic source without due consideration by the jury as to the harm or benefit of the journalistic activity is a fundamental threat to the free press."
Either way, he says, it's also clear that "she is neither a threat to public safety nor a flight risk. To hold a citizen incommunicado and indefinitely while awaiting trial for the alleged crime of serving as a journalistic source should outrage us all."
Full statement follows:
The Justice Department released an indictment of twenty five year-old NSA contractor Reality Winner yesterday, just a few hours after the Intercept posted a story based on a top secret document that described how the NSA believes Russian actors tried to hack into US voting infrastructure. Much is unknown, as the public is made to depend upon the potentially unreliable claims of government prosecutors, while Winner is held in jail without any contact with the public.
What we do know is clear: Winner is accused of serving as a journalistic source for a leading American news outlet about a matter of critical public importance. For this act, she has been charged with violating the Espionage Act—a World War I era law meant for spies—which explicitly forbids the jury from hearing why the defendant acted, and bars them from deciding whether the outcome was to the public's benefit. This often-condemned law provides no space to distinguish the extraordinary disclosure of inappropriately classified information in the public interest—whistleblowing—from the malicious disclosure of secrets to foreign governments by those motivated by a specific intent to harm to their countrymen.
The prosecution of any journalistic source without due consideration by the jury as to the harm or benefit of the journalistic activity is a fundamental threat to the free press. As long as a law like this remains on the books in a country that values fair trials, it must be resisted.
No matter one's opinions on the propriety of the charges against her, we should all agree Winner should be released on bail pending trial. Even if you take all the government allegations as true, it's clear she is neither a threat to public safety nor a flight risk. To hold a citizen incommunicado and indefinitely while awaiting trial for the alleged crime of serving as a journalistic source should outrage us all.
https://motherboard.vice.com/en_us/arti ... free-press
Reality Winner could get record-setting sentence in NSA leak case
August 22, 2018 11:59 AM CDT
Reality Winner, who pleaded guilty in June to leaking a top-secret government report about Russian meddling in the 2016 election, could receive a record-setting prison term when she is sentenced in a federal court in Augusta Thursday, court records show.
The former National Security Agency contractor faces up to 10 years in prison. But her plea deal with prosecutors calls for her to serve five years and three months behind bars. That is longer than anyone else has been sentenced for an “unauthorized disclosure to the media,” federal prosecutors said in a court filing this month.
The prosecutors are urging Chief U.S. District Court Judge J. Randal Hall to agree to the sentence spelled out in her plea deal. If the judge instead moves to give her a longer sentence, Winner, 26, could withdraw her guilty plea and go to trial.
Reality Winner to be sentenced in NSA leak case Aug. 23
Reality Winner to take plea deal in NSA leak case
Former cellmate provides window into Reality Winner’s life behind bars
“The government advises the court that despite the agreed-upon sentence being below the applicable guidelines range, it would be the longest sentence served by a federal defendant for an unauthorized disclosure to the media,” the prosecutors said in their court filing.
The prosecutors added that avoiding a trial would prevent them from having to reveal sensitive government information in court.
Reality Winner to be sentenced in NSA leak case on Aug. 23
The Atlanta Journal-Constitution
Reality Winner, charged with leaking a top-secret government document to a news outlet, walks into the federal courthouse in Augusta, Ga., Tuesday, June 26, 2018. (Michael Holahan/The Augusta Chronicle via AP)
Reality Winner to be sentenced in NSA leak case on Aug. 23
Photo Credit: The Atlanta Journal-Constitution
Reality Winner, charged with leaking a top-secret government document to a news outlet, walks into the federal courthouse in Augusta, Ga., Tuesday, June 26, 2018. (Michael Holahan/The Augusta Chronicle via AP)
“The agreement reflects a fair resolution of the defendant’s criminal culpability, especially when balanced against the further harm to the national security that would likely result from a trial,” the prosecutors said.
Prosecutors also cited several other similar federal cases in which defendants received shorter prison sentences. In 2013, former FBI bomb technician Donald Sachtleben was sentenced to 43 months in prison for leaking classified information to the Associated Press about a foiled bomb plot in Yemen. That same year, former CIA officer John Kiriakou was given a 30-month sentence for revealing to a freelance journalist the identity of an undercover CIA agent. Two years later, former CIA officer Jeffrey Sterling got a 42-month sentence for leaking to The New York Times classified information about a secret operation to disrupt Iran’s nuclear weapons program.
Winner, the prosecutors said, harmed national security last year when she mailed a copy of a NSA document to The Intercept, an online publication. The Intercept published an article 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.
Reality Winner billboard prompts stern warning from her judge
The Atlanta Journal-Constitution
Whistleblower Support Network paid more than $1,000 for this billboard to remain up for a month on Washington Road near Augusta. “The way Reality Leigh Winner is being treated is a matter of vital public interest,” the group said in a statement. “This case is important to the American people.” LAMAR OUTDOOR ADVERTISING
Reality Winner billboard prompts stern warning from her judge
Photo Credit: The Atlanta Journal-Constitution
Whistleblower Support Network paid more than $1,000 for this billboard to remain up for a month on Washington Road near Augusta. “The way Reality Leigh Winner is being treated is a matter of vital public interest,” the group said in a statement. “This case is important to the American people.”
Last week, Winner’s attorneys filed court papers in support of having her detained at the Federal Medical Center Carswell near Fort Worth, Texas. That would place her nearer to her family in Kingsville, Texas, and allow her to get help with her bulimia, an eating disorder. Joel Sickler, a criminologist working with Winner’s attorneys, noted Winner is a U.S. Air Force veteran with no other criminal convictions. She has already spent more than a year behind bars at the Lincoln County Jail outside of Augusta.
“In my opinion,” Sickler wrote, “it would be extremely helpful for Ms. Winner if she were designated to a facility close to her family in Texas, as it would assist with her adjustment to the conditions of confinement, and later, it would be beneficial as she transitions to pre-release at a halfway house.”
https://www.wsbradio.com/news/state--re ... QEDpgB4vK/
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