Time Magazine’s Person of the Year for 2019 should be Dallas woman Reality Winner.
Reality Winner (yes, that’s her real name which was given at birth) served in the Air Force and was a multilingual American intelligence specialist who did her job well. Her Wikipedia page states that she learned Arabic, Dari and Pashtun to provide humanitarian aid to women and children in Afganistan. She frequently made donations to the Syrian human rights group White Helmets and Toys for Tots charity.
Reality Winner’s “Crime” (aka, Truth)
In 2017 she printed a copy of a document detailing the extent of Russian attempts to hack into US voting machines and spearphish emails to election officials before the November 2016 election. She shared it with the Intercept; it was important because it provided evidence to the public that Russian interference in the election was real and far more widespread than we could have suspected. Also, it occurred much later in the election than previously revealed. At the time it sent shockwaves throughout the media. Maybe this would eventually come out anyway in its own time (thanks to journalists). But at the time, this was fresh information.
As it happens, Reality was caught and immediately jailed. She was charged with “removing classified material from a government facility and mailing it to a news outlet.” She was arrested without receiving her Miranda rights and then denied bail. Because the case involved national security, it was hard to offer a defense without being able to refer to secret methods and information. One article describes the difficulty:
Additionally, the government claimed they had subject matter experts who concluded Winner’s “unauthorized disclosure caused exceptionally grave harm” to “national security.”
“If you look at the brief of the transcript in the detention hearings, that was explicitly used by the government to justify her being detained,” Nichols contended. “Because their argument is, well, because this caused grave and exceptional damage. If you let her out, she could do it again and thus cause more grave and exceptional damage. Again, that’s the buzzwords the government used.”
“You don’t have to prove the grave exceptional damage. You just have to put someone on the stand who will say, yes, it did cause grave and exceptional damage. And then the issue is, can you give us more detail?”
Prosecutors answer, “That’s classified. That’s highly classified,” Nichols said. “So it’s this circuitous argument that unfortunately that’s the way the Espionage Act is setup.”
At no point in the course of the case did the government have to publicly outline what constituted “exceptionally grave damage.” They even insisted they did not have to prove damage occurred, as they used the allegation to inflict further punishment upon Winner in detention hearings.
Prosecutors found some absurd and off-handed remarks Winner made about Osama bin Laden to deny her bail. As the defense attorney says in the same article, “There’s a reason why you can’t say certain things in front of the jury. Because if you say, hey, this person kicks puppies and burns down orphanages and then you come back and say, my mistake. That was somebody else. You can’t unring that bell.”
Another problem is that the Espionage Act is outdated and doesn’t have provisions to allow whistleblowers to explain why they performed the act they did. As the Standwithreality website explains:
The vague language of the Espionage Act makes it ripe for abuse, making it a potential weapon against both whistleblowers as well as news outlets that publish leaked documents.
Does the Punishment Fit the Crime?
Eventually a plea bargain of 5 years and 3 months was agreed to, and now Reality Winner sits in a Fort Worth federal prison.
But wait, that seems steep for this kind of crime. Reality didn’t really harm anybody except in a hypothetical sense. Her actions helped Americans to understand the extent of Russian involvement and was done purely for selfless motives. Reality Winner did not expect to become famous or make a lot of money. She just wanted the truth to come out.
I really can’t speculate about the extent of the damage to sources and methods. Perhaps I am not privy to certain details. But if you read Daniel Patrick Moynihan’s book, Secrecy, you will see how throughout US history, falsehoods were often hidden under the veil of secrecy. “Secrecy is for losers,” the book said. “[It’s] for people who do not know how important the information really is.” Publicly available information and news reports can be vetted and challenged and confirmed, while classified intelligence briefs rarely undergo the same skeptical rigor. This sort of history convinces me that secrecy is much more harmful to US interests than disclosures.
I can’t speculate on Winner’s intent, but the disclosure was only one 5 page document which referred to a past series of events. In a way, the Obama had released a summary with the same conclusions in December 2016, and while this document shares more detail, these technical details don’t really hurt national security (other to say that the federal government hires security contractors who can do competent forensic analyses).
Winner agreed to the plea bargaining mainly because the Espionage Act left her with a crappy hand. But this sentence was unduly punitive and more geared to setting an example (than matching the punishment with the crime).
Therefore Reality Winner would be a perfect case for clemency. She served her time already; the government made their point clearly. Now it’s time to set her free. Really, that decision is up to Donald Trump.
Why is Donald Trump doing nothing about this?
A simple executive order could correct this injustice.
Believe me, I get it that Trump has little reason to intervene. He doesn’t really care about cases unless they improve his standing with his base — and frankly, Trump’s base could care less about Winner. Releasing Winner won’t really help Trump politically or financially, and so Trump will ignore her.
Trump bears considerable animus towards the press. But wait — this case doesn’t really hurt Trump except insofar as it implicates the Russians even more.
But Trump has intervened in many cases where the person was less deserving:
- Trump pardoned Arizona sheriff Joe Arpaio, despite his long record of targeting immigrants and disobeying lots of local and federal court orders.
- Trump pardoned Michael Behanna for killing an Iraqi man who he had taken in custody. A military court found him guilty of “unpremeditated murder in a combat zone” and sentenced him for 25 years.
- Trump pardoned Derrick Miller who was sentenced to life (with a chance of parole) for the premeditated murder of an Afghan civilian during a battlefield interrogation.
- Trump pardoned Clint Lorance who was court-martialed and sentenced to 19 years for murdering two civilians in Afghanistan.
- Trump reversed a demotion of Eddie Gallagher who was involved in the killing of an Iraqi and (according to various news sources cited on Wikipedia), allegedly took “random shots” into buildings, shooting and killing an unarmed old man in a white robe as well as a young girl walking with other girls. After Gallagher mortally wounded the prisoner, he was eventually exonerated simply because the medic decided to expedite the prisoner’s death simply as an act of mercy. (Gallagher was later convicted of posing with the corpse ).
I would not want to be in the same room as any of the people Trump picked as worthy of clemency. Perhaps it is belaboring the point to add that many of Trump’s inner circle (Michael Flynn, Paul Manafort, Michael Cohen, Rick Gates and Roger Stone) committed serious federal crimes of moral turpitude. Suffice to say that Trump is perfectly comfortable working with people who have bent the rules to suit the occasion. You can’t set one standard for Reality Winner and another standard for people who in some cases have actually compromised security interests.
What would you do?
For a while, let’s leave aside the question of whether Reality Winner is being scapegoated here. Let’s remember that Chelsea Manning released a lot of (embarrassing but not secret) diplomatic cables to Wikipedia and Edward Snowden released a tremendous amount of top secret NSA docs revealing aspects to the US surveillance apparatus. There are others. Manning was sentenced to 7 years, but it was reduced to 3 years. Snowden lives in Russia and never has returned.
What are some common threads here? All 3 were very young when they took action. All thought it was the public interest for Americans to know what they learned at their job. All knew that disclosing was a risk and they would potentially face legal consequences. Snowden and Reality Winner were government contractors and put in a situation where they couldn’t really use a protected whistleblower status to complain. Manning saw video footage of US troops killing indiscriminately; Snowden saw tools which allowed all kinds of surveillance which seemed at odd with American values. Reality Winner saw shocking information indicating that Russian spying had not declined after Obama’s warning but was in fact continuing. She decided that Americans needed to know.
Part of the problem is that an underling lacks the power to determine what should be secret and public. It would be crazy to allow people on the bottom rungs of sensitive positions to disclose whatever they want. Protocol needs to be followed.
On the other hand, a bureaucracy which depends on workers staying quiet about everything is doomed to leak eventually. Workers at such organizations need to believe in the mission, and all three people were disillusioned in some way. A lot of this disillusionment stemmed from the contrast between professed and actual American political values. Possibly they were just young and naive.
Manning and Winner paid a price for their actions. But of course they knew these risks although maybe they didn’t appreciate the full consequences.
Perhaps you could make the argument that Snowden revealed too much about existing programs, and these revelations threatened the ability of the NSA to do work. But this is not true of Winner because the only thing she revealed was past actions made by a foreign country.
I want there to be more Reality Winners in our country. And that is why I want her freed. Yes, it’s kind of hilarious that a woman who was actually given this name at birth was imprisoned for being too in touch with the ugly reality of the global threat.
But Reality Winner has been punished enough. It is time to let her go. Keeping Winner is prison is essentially saying that Americans should never have to confront the ugly realities locked away behind closed doors. Reality’s heroism is recognizing that sometimes you have to break the rules when it’s the only way Americans can learn certain vital facts.
On this Winner has already succeeded.
MORE:
Will Bunch has a long juicy column about this:
Winner’s leak had immediate, tangible results. On the day after the story was published in The Intercept, a federal agency — the U.S. Election Assistance Commission — sent out a bulletin to state officials warning about the security issues that had been disclosed. A number of state and local officials said they hadn’t been warned about this specific Russian threat and that in fact the Winner disclosure was the first they’d heard of it. Perhaps more importantly, her blown whistle put new pressure on Washington to investigate a problem that Team Trump and its allies on Capitol Hill wanted to disappear.
The result was last week’s stunning report on Russian election interference from the Senate Intelligence Committee, a GOP-led panel. It revealed for the first time that the Russian 2016 operation targeted election systems in all 50 states, that hackers had the ability to change key data in Illinois and that, in the words of the New York Times, this was “an effort more far-reaching than previously acknowledged and one largely undetected by the states and federal officials at the time.”
That lack of either acknowledgment or detection is precisely the reason that Reality Winner risked everything to blow the whistle.
As blogger Marcy Wheeler pointed out last week, it took both the Winner leak and subsequent prodding from Democratic members of Congress for either VR Systems or the FBI to take Russia’s apparent 2016 computer break-in of that vendor’s software seriously. Investigative efforts by Sen. Ron Wyden, an Oregon Democrat, revealed that despite some back-and-forth between VR Systems and the FBI before the 2016 general election, the vendor didn’t hire a contractor — FireEye — to investigate until after Winner’s disclosure (and, thus, long after the election).
December 5, 2021 Update. Reality Winner did an interview with 60 minutes. She’s still under house arrest, but finally had an opportunity to speak her mind. Among the more interesting revelations: Winner felt that this disclosure did not reveal any of the federal government’s methods and procedures for spying.
