Reality and the Espionage Act
Peter Sterne
July 10, 2018
Reality Winner, the first whistleblower prosecuted by the Trump administration for leaking information to the press, will spend five years in prison as punishment for making officials and the public aware of vulnerabilities in election infrastructure. This unusually long sentence breaks with precedent, and is representative of the government’s increasing willingness to use the Espionage Act to punish and imprison whistleblowers and chill journalism.
On June 3, 2017, FBI agents raided Winner's home in Georgia. Federal prosecutors suspected that Winner, an intelligence contractor who worked with the NSA, had shared classified information with journalists, and obtained a search warrant to search her house and seize her electronic devices. After the FBI agents finished searching her home, they began chatting with her, casually at first, in what eventually turned into a interrogation that ended with her arrest. Winner later said that the FBI agents never told her that she had the right to remain silent or speak with an attorney.
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Two days later, The Intercept published a partially-redacted version of a classified NSA document, which concluded that hackers they believe were working with Russian military intelligence had tried to penetrate states’ election systems during the 2016 election. On June 8, Winner was formally arraigned on one charge of violating 18 U.S.C. § 793(e), a provision of the Espionage Act.
Passed in 1917, the Espionage Act was originally intended to be used against foreign spies and saboteurs during World War I. But almost immediately after the Espionage Act was enacted, it was used to prosecute anti-war activists, including socialist presidential candidate Eugene Debs. The Supreme Court shamefully upheld the convictions of anti-war protesters in a series of unanimous decisions in 1919.
In 1971, Daniel Ellsberg leaked the Pentagon Papers — a classified history of the Vietnam War, which revealed that the government had repeatedly lied to the American people — to reporters at The New York Times and Washington Post. While the Supreme Court ruled that the government could not stop the papers from publishing articles about the documents, the Nixon administration retaliated against Ellsberg by charging him under the Espionage Act. Ultimately his case was thrown out for government misconduct. He was the first person to be prosecuted under the law for giving information to journalists, but he would not be the last.
During the Obama administration, the Department of Justice prosecuted at least eight people for sharing classified information with journalists. Most of the Espionage Act cases brought by Obama’s Justice Department never made it to trial, and instead, defendants were forced to take a plea deal. That’s partly because it’s next to impossible to mount an effective defense against an Espionage Act charge.
The Espionage Act simply prohibits the unauthorized disclosure of information related to the national defense — a broad category that includes information about controversial government programs, as well as true military secrets like the nuclear codes.
Defendants charged with violating the law cannot present an argument that the leak was justified or in the public interest. To convict you under the Espionage Act, federal prosecutors don't need to prove that your leak actually put anyone in danger. All they need to prove is that defendants knew the information was "related to national defense” when they gave it to journalists.
The federal government’s classification system is governed through executive orders, which give executive branch agencies the ability to designate certain information as “confidential,” “secret,” and “top-secret” if they determine that the disclosure of the information could potentially harm national security. Since the executive branch is (at least in theory) only allowed to classify information that it believes could harm national security, all classified information is assumed to be potentially dangerous to national security — even though we know this system is regularly and systematic abused to hide controversial, embarrassing, corrupt, or illegal activity.
This is circular logic — classified information must be dangerous, because if it weren’t dangerous, it wouldn’t be classified — means that the government can argue that leaking any classified information is functionally equivalent to leaking information that you know can harm the United States.
Winner wanted to challenge this assumption that all classified information is potentially dangerous. Court filings show that her attorneys planned to argue that the NSA report on Russian hacking attempts that Winner allegedly leaked had been over-classified, and the government’s claims that the release of the document would cause “exceptionally grave damage” were without merit.
Her attorneys tried to subpoenaed a wide array of intelligence agencies, hoping to show that the information Winner allegedly leaked about Russian hacking attempts was less of a state secret and more of an open secret within the government.
They also planned to enlist an expert witness — Bill Leonard, the former head of the Information Security Oversight Office, responsible for overseeing the federal government’s entire classification system — to testify about the government’s over-classification problem.
But Winner’s case once again proved it’s hard, if not impossible, to fight an Espionage Act prosecution. A judge denied all of Winner’s attempts to subpoena government agencies and imposed draconian security precautions on her attorneys, which prohibited them from discussing Winner’s case on unsecured phone lines and conducting Google searches for information about the document Winner allegedly leaked.
Meanwhile, Winner was held in a small county jail without bail for more than a year, after prosecutors convinced a judge that Winner was a flight risk because she had criticized the United States and could speak multiple foreign languages.
Winner’s treatment was harsh even by the standard of other Espionage Act prosecutions. Others charged with leaking classified information —like Jeffrey Sterling, Stephen Kim, and John Kiriakou—were released on bond.
Finally, on June 26, 2018, after over a year of fighting the case, Winner pleaded guilty to one count of violating the Espionage Act. According to the terms of her plea deal, Winner will serve 63 months in prison, followed by three years of supervised release.
“The use of the Espionage charge prevents a person from defending themselves or explaining their actions to a jury, thus making it difficult for them to receive a fair trial and treatment in the court system," Winner’s mother, Billie Winner-Davis, said in a statement. "I do believe that whatever [Reality] did or did not do she acted with good intentions. ... We need to work toward reforming laws so that the Espionage Act is not leveraged against our citizens."
Winner’s sentence is hardly lenient. She was a first-time offender, only accused of leaking one document. She was charged with a single count of violating 18 U.S.C. § 793(e), a section of the Espionage Act that carries a maximum sentence of 10 years. Winner’s sentence is the longest sentence that a leaker has ever received in federal court. (Chelsea Manning, who was originally sentenced to 35 years in prison and later had her sentence commuted by President Obama after 7 years, was convicted at a military court-martial.)
Winner’s only crime, literally, was to share information with journalists and the American people about a foreign government’s attempt to hack U.S. voting systems. State election boards reportedly appreciated Winner’s leak, which gave them the information needed to investigate Russian hacking attempts and better secure their electronic voting infrastructure.
But the federal government treated Winner as though she were a spy. Federal prosecutors charged her with violating an anti-espionage statute that is more than a century old, while arguing that she had to remain detained without bail until trial because she had no loyalty to the United States.
The Department of Justice’s increasing use of the Espionage Act against people who share information with journalists is shameful. A country that claims to value the freedom of the press should not imprison people for speaking to journalists.
On July 13, 2018, the Department of Justice announced the indictment of 12 Russian intelligence officers on charges of hacking. The grand jury indictment, which is unclassified and available to the public, includes information about Russian attempts to hack state election systems — the same information that Winner allegedly leaked to The Intercept.