On Thursday, a federal judge denied a second request for bail from Reality Winner, a former National Security Agency contractor accused of violating the Espionage Act, despite an admission from the federal prosecutor in charge of the case that the government relied on false information in Winner’s initial bail hearing.
In his decision denying bail, Judge Brian Epps did not acknowledge or reference the prosecutor’s false statements, despite the statement having been a principal reason the defense moved for the renewed hearing.
The fight over whether Winner should be released pending trial stemmed from her bail hearing shortly after she was indicted in June. Winner was initially denied bail partly on the basis of alleged jailhouse recordings that suggested she may have other classified documents that she wanted to make public.
Relying on the FBI’s descriptions of the calls, the prosecutor told the judge on June 9 that Winner discussed having multiple classified “documents” (plural) beyond the document she allegedly released. When the prosecutor finally did listen to the recording herself — after the judge had already denied bail — she admitted that Winner did not use the plural “documents” in the phone call, but only referred to one “document.”
With no evidence Winner was in possession of more documents, U.S. Attorney Jennifer Solari instead shifted focus during a bail hearing last week to Winner’s character, internet privacy habits, and political views, arguing that the young former NSA contractor had shown “nothing but contempt for our country and our security.” In his Thursday decision denying bail, Epps took many of the prosecution’s charges about Winner’s views at face value — portending a tough road ahead for Winner at trial — in making his case that she posed a security and flight risk.
“The court denies defendant’s motion for release from custody,” Epps wrote in the decision, “and finds by clear and convincing evidence that no condition or combination of conditions will reasonably assure the safety of the community; and by a preponderance of the evidence that no condition or combination of conditions will reasonably assure the appearance of defendant as required.”
Winner is accused of having disclosed an NSA report detailing Russian attempts to hack local election offices that was the basis of a story published by The Intercept on June 5, though The Intercept had no knowledge of the source’s identity. (The Intercept’s parent company, First Look Media, has taken steps to provide independent support for Winner’s legal defense through the Press Freedom Defense Fund. First Look also contributed $50,000 in matching funds to the Stand With Reality campaign, which I co-founded.)
Epps’s decision relied heavily on hyperbolic online chats Winner had with her sister and a friend. Epps referred to moments in the chats, which were presented as evidence by the government, when Winner had criticized the U.S. and said she was on the side of Edward Snowden and Julian Assange. At one point, Winner quipped about her “hate” for the U.S. because it is “literally the worst thing to happen to the planet” — comments Epps quoted without acknowledging the context of complaints about Americans’ propensity for using incredible amounts of air-conditioning.
Primarily because of those chats, Epps declared, “[T]he nature and seriousness of the danger should poses to our nation is high.” He also decided Winner remained a flight risk — despite the fact that her passport has been revoked — because she had recently taken a weekend vacation to Belize and, when in the military, had expressed a desire to be stationed overseas.
That Winner had no criminal record, that she was honorably discharged from the Air Force, and that her mother would move to Georgia to act as her custodian, in the end, did not sway Epps.
Given the single document Winner is alleged to have released, Epps’s decision to deny her bail entirely is an aberration. Winner’s lawyers had outlined to the judge virtually all other cases involving the “mishandling of classified information” from the last decade, showing that “the vast majority of courts have held that defendants charged with similar offenses were entitled to be released pending trial,” according to a defense motion. Epps, in his decision, wrote that because some of those cases involved sentences or plea deals that ended in misdemeanor convictions or probation, they were not analogous to Winner’s.
Epps’s logic, however, displayed a shallow understanding about the controversial nature of how cases involving the release of government information to the public are prosecuted. One of those cases the judge cited as “distinguishable” from Winner’s was that of retired Gen. David Petraeus, who was caught disclosing highly classified information to his biographer and then-girlfriend, and lying to the FBI about it.
Reality Winner could spend more time in jail ahead of her trial than for any sentence she would receive.
Petraeus, as Epps noted, was only given probation after a plea deal. But Epps ignored the fact that Petraeus was initially accused of disclosing far more highly classified information than Winner was. The original indictment in his case listed the alleged transgressions of national security, including “identities of covert officers, war strategy, intelligence capabilities and mechanisms, diplomatic discussions, quotes and deliberative discussions from high-level National Security Council meetings … and discussions with the president of the United States.”
Winner’s trial is due to start next March, and significant potential delays loom over the schedule, given the complexities of holding a trial under the Classified Information Procedures Act.
The judge’s decision on Thursday could mean Winner spends more time in jail ahead of her trial than for any sentence she would receive — even if she is found guilty under the Espionage Act.