Documents

Case Document 45 Filed 07/20/17 Page 1 of 66 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA Defendant. AUGUSTA DIVISION UNITED STATES OF AMERICA, v. CASE No. REALITY LEIGH WINNER, MOTION AND BRIEF IN OPPOSITION TO THE MOTION FOR A PROTECTIVE ORDER This brief is submitted in opposition to entry of the protective order as proposed by the Government unless the additions, deletions and modi?cations proposed herein are incorporated into the protective order. Defense Counsel seek a bright?line rule, a ?rule that tends to resolve issues, especially ambiguities, simply and straightforwardly.? Black?s Law Dictionary. The order, as proposed by the Government, creates unnecessary ambiguity and imposes unnecessary impediments for the Defense. As noted at the hearing held June 27, 2017, the Defendant moves that the following sentence be added. to paragraph 4B of the proposed protective order: Information drawn from unclassi?ed sources does not become classi?ed information because similar information also happens to appear in classi?ed documents. Defendant further moves that the following provision be added following the ?rst sentence of paragraph sixteen of the protective order: Copies of newspaper articles and other publicly published documents need not be ?led under seal.

Case Document 45 Filed 07/20/17 Page 2 of 66 Defendant further moves that Paragraph 13 of the proposed Order be deleted and that the following provision be inserted as Paragraph 13: 13. The Defendant?s counsel shall be given access to classi?ed national security documents and information as required by the government?s discovery obligations and in accordance with the terms of this Protective Order, the requirements of CIPA, the Memorandum of Understanding described below, and any other orders issued pursuant to CIPA, and upon receipt of appropriate security clearances. Defendant Reality Leigh Winner (hereinafter ?the Defendant?) will also be given access to national security documents and information as required by government discovery obligations and in accordance with the terms of this Protective Order, the requirements of CIPA, the Memorandum of Understanding described below, and any other orders pursuant to CIPA. Defense counsel and the Defendant will be given access to the same classi?ed information. Defendant further moves that the protective order provide in paragraph ?fteen: The Classi?ed Information Security Of?cer shall not disclose to counsel for the government the names of experts who, with appropriate security clearances, have inSpected classi?ed information at the request of Defense counsel. Defendant objects to the language in paragraph 1 9.F of the Government?s proposed order that states, ?including the defendant and defense witnesses,? and the sentence that states, ?Counsel for the government shall be given the opporttmity to be heard in response to any defense request for disclosure to a person not named in this Order.? These provisions should be deleted. Defendant objects to the language in the last sentence of paragraph 19 .H of the Government? 5 proposed order that states, ?that counsel does not know or have reason to believe to be classi?ed information or derived from classi?ed information.? Defendant moves that the language set out in bold print below be added to paragraph 22 of the Government?s proposed order so that the ?rst sentence of that paragraph states: It shall not violate this Order for an individual subject to this Order to disclose information in the public domain or information that the individual did not know, and reasonably should not have known based on information provided by the -2-

Case Document 45 Filed 07/20/17 Page 3 of 66 government in this case, is classi?ed. The Defense moves the Court to enter the protective order attached at Tab A. ARGUMENT AND CITATION 0F AUTHORITY The issues raised by the Government? 5 proposed protective order and the objections thereto by the Defense will be fundamental and recurring in this case. These issues should be considered in addressing the matter of the protective order. Defendant Reality Winner is charged with eSpionage, conduct traditionally viewed as stealing military secrets and providing those secrets to an enemy of the United States.1 The indictment charges a violation of 18 U.S.C. 793(e), a statute ?rst enacted in 1917 and entitled the ESpionage Act of 1917. This statute was enacted long before there existed the system of classi?cation of government documents under which the Government now designates matters as classi?ed, secret and top secret. Our Government? classi?cation system is established by executive order and not by any statute enacted by Congress. The present language of 793(e) was enacted in 1950 as an amendment to the Espionage Act. Section 793(e) provides: Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the of?cer or employee of the United States entitled to receive it; 1 Black?s Law Dictionary de?nes eSpionage as, ?The activity of using spies to collect information about what another government or company is doing or plans to do.? -3-

Case Document 45 Filed 07/20/17 Page 4 of 66 An oft-cited and study of the history of the Espionage Act of 1917 is to be found in a 1973 Columbia Law Review article. H. Edgar and BC. Schmidt, The Espionage Statutes and Publication of Defense Information, 73 Colum. L. Rev. 929. The authors noted: A number of legislative proposals have been introduced since 1950 that can only re?ect the assumption that the espionage statutes do not prohibit non-culpable disclosure of properly classi?ed information. Whether the lack of coverage was seen as stemming from the problems of giving meaning to the entitlement concept is not clear. Other reasons for the proposals may have been the notion that all the espionage statutes, including 793(d) and require a showing of purpose to injure the United States or advantage a foreign nation, or that proof of defense-relatedness would compromise the security interests of the classi?cation program. Yet, if the only problem with current statutes were proof of defense?relatedness, one would expect the subsequent proposals to have been justi?ed in terms of that legislative purpose. They have not been so justi?ed. Perhaps the most signi?cant of these proposals, that of the Government Security Commission, would have made unauthorized disclosure of classi?ed information a crime. The measure made no progress at all in Congress, and was abandoned by the Executive as politically untenable. A similar pr0posal had been advanced in 1946 by the Joint Congressional Committee on the Investigation of the Pearl Harbor Attack. It was severely cut back by the Judiciary Committees and wound up as the current section 798 of Title 18 which prohibits disclosure of the narrow category of classi?ed communications intelligence information. In 1962, Senator Stennis introduced a bill to amend section 793 to make disclosures of classi?ed information a crime, without any narrow intent requirement. The proposal was not enacted. If the classi?cation system were thought to be protected by criminal sanctions against ?willful? disclosure of defense?related information, it is remarkable that two Commissions and a Senator knowledgeable about the laws relating to national security would have seen a need for these pr0posals. Id. at 1056 (emphasis added). The authors further note: The Executive has nowhere asserted that communication of classi?ed information to a person not authorized by Executive regulations to receive it is a crime. The ?classi?cation stamps? are at most circuitous references to penal sanction that hardly bespeak Executive con?dence that its rules and regulations give meaning to the entitlement concept. Finally, legislation has been offered from authoritative sources that proceeds on the assumption that 793(d) and do not make -4-

Case Document 45 Filed 07/20/17 Page 5 of 66 simple disclosure of defense information a crime. Congress has always refused to enact such proposals to put criminal sanctions of general scope behind the classi?cation system. Id. at 1057 (emphasis added). Congress did subsequently pass a statute in 2000 that would have expressly criminalized the disclosure of classi?ed information. H.R. Doc. No. 106-309, at 3-4 (2000). However, the bill was vetoed. See M.R. Papandrea, Lapdogs, Watchdogs and Scapegoats: The Press and National Security Information, 83 1nd. L. J. 233, 262?264 (2008). A copy of the relevant portion of the bill that was vetoed is at Tab B. Prosecution under the Espionage Act of those who are labeled as ?whistle blowers? and ?leakers? is of recent origin, with most prosecutions having been brought in the last decade. Moreover, the statutory term national defense refers to military action: National defense, the Government maintains, ?is a generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness. We agree that the words ?national defense? in the Espionage Act carry that meaning. The reports [at issue], in short, are a part of this nation's plan for armed defense. Gorin v. 3-12 U.S. 19, 28?29 (1941). An internal C.I.A analysis of this area of law that has since been declassi?ed confirms the narrow scope of the term national defense secrets: It was not until 1911, however, that Congress passed the first important statute dealing with the broad problem of eSpionage. In 1917 the language of the 1911 act was amended to read much as it does today. More recently congressional attention has been focused and appr0priate legislation enacted on the problems involved in protecting atomic energy data and communications intelligence. The Internal Security Act of 1950 made it unlawful for a government employee merely to communicate classi?ed information to a known representative of a foreign -5-

Case Document 45 Filed 07/20/17 Page 6 of 66 government. However, the espionage laws are still the basic statutory protection against unauthorized disclosure of intelli gence materials and information. No legislation has yet been enacted to cover the new problems arising out of the chronic ?cold war? status of international relations and the consequent need for a SOphisticated, professional intelligence apparatus as an arm of the executive. The wartime concept of the military secret is inadequate to cover information about the personnel, activities, and products of such an apparatus, information whose extreme sensitivity is often not readily apparent even though its exposure may have a most damaging effect on the national security. John D. Morrison, Jr., The Protection of Intelligence Data, p. 70 (c0py at Tab C). The article expresses a need for new legislative action in the form. of ?a criminal statute defining what is to be protected and providing punishment for exposures.? Id. at p. 78. As noted above, no such ?new? criminal statute has as yet been enacted into law. Mr. Morrison formerly served as assistant general counsel of the C.I.A. Russian attempts to interfere with our elections are despicable, but whether information about these Russian efforts falls within the scope of information about the secret activities of our army and navy that the Espionage Act was enacted to protect is doubtful. A. The Protective Order Should Not Restrict Defense Counsel?s Use of Information In the Public Domain. Dissemination of information found in ?reports relating to the national defense, published by authority of Congress or the military? is not forbidden by the Espionage Act. Gorin, 312 US. at 28. Accord, United States v. Heine, 151 F.2d 813 (2d Cir. 1945) (L. Hand, J.) wherein the conviction of a German spy under the Espionage Act was reversed, with the Court noting: All of this information came from sources that were lawfully accessible to anyone who was willing to take the pains to ?nd, sift and collate it; Id. at 815.

Case Document 45 Filed 07/20/17 Page 7 of 66 The Court then held: It is not necessary for us to go so far; and in any event ?secrets? is an equivocal word whose de?nition might prove treacherous. It is enough in the case at bar to hold, as we do, that whatever it was lawful to broadcast throughout the country it was lawful to prepare and publish domestically all that Heine put in his reports. Id. at 816. These authorities cast doubt on the pr0priety of the terms of the proposed protective order that go beyond imposing restrictions on divulging what is in classi?ed documents and information to be produced by the Government at the restricted site under the supervision of the Classi?ed Information Security Of?cer. Defense Counsel construe the protective order as proposed by the Government as imposing restrictions upon our right to cite and quote information in the public domain, such as articles in neWSpapers, broadcast journalism and online publications, without fear of sanctions or worse. See Paragraphs 4B, 16 and 19; Doc. 42?1, pp. 2, 7, 11. The order as proposed by the Government imposes upon Defense Counsel the duty to question the source of reports in the New York Times or matters discussed on Morning Joe and then to confer with the security of?cer before repeating or citing these facts even though the information is clearly in the public domain. The proposed ?knew or have reason to know? standard is scary. What if afact reported in the Washington Post can also be found within the third paragraph of a document bearing a bates stamp page number 2037, marked con?dential and produced by the Government at the safe location? How would Defense Counsel be expected to assess the legitimacy of the Washington Post?s source? Would this disclosure by the Government at page 2037 meet the Government?s proposed ?reason to know? standard? Would counsel for the Defense be in violation

Case Document 45 Filed 07/20/17 Page 8 of 66 of the Government?s proposed protective order 'if Defense Counsel quotes the Washington Post I article without having ?rst sought permission from the security of?cer? Why should Defense Counsel be placed into the role of making security assessments of information in the public domain? The dilemma that would be imposed upon Defense Counsel if the Government?s proposed protective order were entered by the Court is illustrated by the January 6, 2017, article published in the Atlantic and attached at Tab D. We know not all sources reviewed by the authors. The Atlantic article does, however, contain the following statements: These conclusions had previously been reported, based accounts anonymous intelligence of?cials gave to various news outlets. Id. at p. 2. After reviewing a classi?ed version of the assessment made public on Friday, Trump issued a statement citing the cyber threat from ?Russia, China, other countries, outside groups and people,? but emphasizing that the hacking had ?absolutely no effect on the outcome of the election.? Id. at p. 2. Information on what exactly happened has been dripping out slowly, and often anonymously and unof?cially, for months. Id. at p. 4. It wasn?t until September that anonymous federal of?cials con?rmed to The New York Tim es the intelligence community?s ?high con?dence? of Russian government involvement in the hack, if not the subsequent leak, and leaving doubt as to whether the hacks were ?routine cyberespionage? or actually intended to in?uence the election. Id. atp. 4. Then The Washington Post disclosed a ?secret CIA assessment? again described by anonymous of?cials declaring it ?quite clear? that a Trump presidency was the ultimate goal of the hacks.

Case Document 45 Filed 07/20/17 Page U.S. diplomatic cable, published in WikiLeaks, called the Baltic state an ?unprecedented Victim of the world?s ?rst cyber attacks against a nation state.? - Id. at p. 6. When they hit the NSA, hackers posted the agency? ?cyber-weapons? to ?le-sharing sites, according to Esquirethis information drawn from classi?ed sources that had not been of?cially declassi?ed? One can fairly infer that some of it may have. Defense Counsel construe the proposed provisions found in paragraphs 4.B, 16 and 19.6 as setting up barriers to use of this article that would require Defense Counsel to compare facts found in the article with all classi?ed documents produced by the Government in order to ascertain whether counsel ?should . . . have known based on information provided by the government in this case? that the Atlantic article contained information drawn from classi?ed documents. And what if, in review, counsel failed to appreciate some fact appearing in one paragraph of one page of one of perhaps hundreds of classi?ed documents produced by the Government? Counsel clearly have a present right to read, copy and cite this article from the Atlantic. See, United States v. Heine, supra. This right should not be impaired. Defense Counsel are presently free to read, copy and cite from the public domain without seeking permission from the Government; There is no good cause for any restriction of our rights and freedom to continue to do so. B. Defendant?s Right to Inspect Classi?ed Documents The Government? proposed protective order does not allow inspection by the Defendant of -9-

Case Document 45 Filed 07/20/17 Page 10 of 66 the classi?ed documents. Doc. 42 12, 13. Entry of an order with this restriction would impair Ms. Winner?s Sixth Amendment right to confront the witnesses and the evidence against her and would impair her attorneys? efforts to provide effective assistance of counsel. The protective order, as written, would bar her attorneys from fully conferring with her as to relevant evidence and to learn from Ms. Winner her side of the story. The Sixth Amendment right to counsel includes the right to confer with counsel. Restrictions imposed upon the right of a defendant to confer with counsel during trial recesses have been reversed as violations of the Sixth Amendment. E. g, Geders v. United States, 425 US. 80, 88 (1976); Hall v. Warden, Fed.App. 2017 WL 1405208 7 (11thl Cir.); United States v. Cavallo, 790 F.3d 1202, 1213 (1 1th Cir. 201 5). A defendant? 5 constitutional right to confer with counsel surely includes a right to confer about the evidence, be it favorable or not. The court in United States v. Fishenko, 2014 WL 5587191 (E.D. N.Y.) addressed the issue of a defendant?s constitutional right to view classi?ed evidence. The court held: The issue before this Court is how to ensure the constitutional rights of criminal Defendants' vis-a-vis both (1) national security concerns attendant to the classi?ed material in this case; and (2) physical security concerns attendant to their status as pretrial detainees. The Supreme Court has held that ?[t]he right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations.? Chambers v. Mississippi, 410 US. 284, 294, 93 1038, 35 L.Ed.2d 297 (1973). Founded in the Sixth Amendment?s Compulsory Process and Confrontation Clauses, a criminal defendant has a right to ?a meaningful opportunity to present a complete defense.? Hawkins v. Costello, 460 F.3d 238, 243 (2d Cir.2006) (quoting Crane v. Kentucky, 476 US. 683, 690, 106 2142, 90 L.Ed.2d 636 (1986)). Thus, the Defendants? constitutional rights to assist in their own defense must not be abridged. Id. at 1?2. -10-

Case Document 45 Filed 07/20/17 Page 11 of 66 The court further held: In this case, although certain discoverable material has been deemed classi?ed pursuant to CIPA, the Court recognizes that the Defendants retain constitutional rights to participate in their own defense. Thus, this Court must ensure the Defendants' constitutional rights while taking into consideration the Government?s legitimate concerns with reSpect to national security and the need for efficiency in administering this litigation. Id. at 2. Attached at Tab are the relevant parts of a protective order entered in United States v. Je?i?ey Alexander Sterling, Doc. 3 8, No. 1 (LMB) (ED. Va.) by Order of Feb. 10, 2011. This order granted the defendant access to con?dential information produced by the Government. The Government cites this order in its motion, although for a different proposition. Doc. 42, p. 4. This provision was adopted over the objection of the Government. Id at D0034, pp. 9-10. Counsel for Ms. Winner drew from that order for our proposed paragraph 13. It should be noted that Ms. Winner has had a top secret clearance for a number of years, as had Mr. Sterling. Moreover, Ms. Winner is in jail. Her telephone calls are taped, and all of her outgoing mail is being reviewed by Government agents. There is no risk to national security that could ?ow from her being allowed to view the evidence that may be used against her and to consult with her counsel about the evidence. Counsel for Ms. Winner acknowledge, as did counsel for Mr. Sterling, that courts have, in extreme cases, approved of limitations being imposed upon a defendant?s access to classi?ed information. E. g, In re Terrorist Bombings 0f U.S. Embassies in East Africa, 552 F.3d 93, 127 (2d Cir. 2003); United States v. Hausa, F.Supp.3d. (ED. NY. 2017), 2017 WL 1372660 4 (conspiracy to bomb a U.S. government facility); United States v. Fawwaz, 2014 WL 6997604 1?4 -11-

Case Document 45 Filed 07/20/17 Page 12 of 66 (S .D. N.Y.) (conspiracy to kill Americans with bombs and other means); United States v. Moussaoui, 2002 WL 1987964 (ED. Va.) (conspiracy to commit acts of terrorism). The court in Hausa set forth the standard for resolution of this issue: The Court must consider whether there is an ?important need to protect a countervailing interest? that justi?es the restriction on the defendant?s ability to consult with his attorney and whether ?the restriction is carefully tailored and limited.? In re Terrorist Bombings, 552 F.3d at 128?29 (quoting United States v. Triumph Capital Grp., Inc, 487 F.3d 124, 129 (2d Cir. 2007). U. S. v. Hausa, supra at 6. The decision in ishenko, supra, provides an example of possible restraints: Based on these conversations, the Court?s inSpections, the relevant law related to classi?ed material, and consideration of the constitution rights of the Defendants to assist in their own defense, the Court has fashioned an appropriate solution. Defendants shall have unlimited access to the classi?ed documents Within the parameters of relevant security constraints. In order to View the materials, the Defendants will be produced to the inmate isolation cells of the Eastern District of New York. The isolation cells are equipped with bars rather than the mesh wires found in the attorney~client interview rooms. The Court ?nds that the mesh wires are not an adequate option because the mesh obstructs the Defendants View of the documents. Within the isolation cells, Defendants will not have direct access to the computers, per the legitimate security concerns of the U.S. Marshals. However, a paralegal or counsel with appropriate security clearance can manipulate and control the computers through a laptop.- The Defendants will View the materials on a 20?inch screen placed immediately outside the isolation cell. The screen is large enough so that the Defendants can increase or decrease the text size of each document. The Defendant will have plain View of the documents through a sizable space between each bar . The Court ?nds that such a remedy is the proper balance of all parties' concerns, national security, and the security of staff while also protecting the Defendant's right to assist in his own defense. Id. at 3. Ms. Winner?s case is more analogous to the CIA agent in Sterling and the decisions in Fishenki and United States v. 1. Lewis Libby, in which the Court was respectful of the needs of the -12-

Case Document 45 Filed 07/20/17 Page 13 of 66 defendant. United States v. Libby, 467 .Supp.2d 1 (D.D.C 2006); United States v. Libby, 2006 WL 3333059 United States v. Libby, 432 F.Supp.2d 81 (D.D.C. 2006). Ms. Winner is not a terrorist. She is not a foreign national. She has long held a top secret clearance. She served six years in the United States Air Force and was honorably discharged. Her counsel have a clear need to be able to review with her the documents produced by the Government, and she has her Sixth Amendment right to confer with her counsel. Should the Government disagree, the Government should be required to present to the Court compelling evidence that showing to Ms. Winner the classi?ed docMents that are to be produced in this case threatens the national security of the United States and that there are no restrictions other than barring access that can be imposed that would minimize or eliminate this risk. C. The Identity of Defense Experts Who Inspect Documents Disclosed by the Government Should Not be Disclosed to the Government. Paragraph l9.F of the Government?s proposed protective order requires notice to the Government of the identity of anyone to whom Defense Counsel wishes to disclose the classi?ed I documents that the Government may produce. Such a provision is not only unnecessary, it gives unfair advantage to the Government. It is common in cases, be they civil or criminal, for counsel to consult with learned experts to educate counsel and help counsel prepare. These consultations are with limited exceptions not discoverable. In this case, the need to consult is great given. the number of unusual and technical issues raised by this prosecution. Defense Counsel agree that any such expert must have the appropriate security clearance. However, this requirement can be enforced by the Classi?ed Information -13_

Case Document 45 Filed 07/20/17 Page 14 of 66 Security Officer without disclosure to the Government of the identify of such persons. CONCLUSION Bright-line rules should be ad0pted. The protective order should address classi?ed documents and information produced by the Government. No restraints should be imposed upon use of documents and information in the public domain. The Defendant?s Six Amendment rights should not be impaired. Defense Counsel ask that the Court set a hearing to address these issues and that the protective order in the form attached at Tab A be adopted by the Court. Respectfully Submitted, BELL BRIGHAM s/ John C. Jr. John C. Bell, Jr. (Bar No. 048600) Titus T. Nichols (Bar No. 870662) PO Box 1547 Augusta, GA 30903-1547 (706) 722?2014 [email protected] ghamcom COUNSEL FOR DEFENDANT -14-

Case Document 45 Filed 07/20/17 Page 15 of 66 Tab A

Case Document 45 Filed 07/20/17 Page 16 of 66 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION UNITED STATES OF AMERICA, v. CASE NO. REALITY LEIGH WINNER, Defendant. PROPOSED PROTECTIVE ORDER This matter comes before the Court upon the Government's Motion for Protective Order to prevent the unauthorized use, disclosure or dissemination of classi?ed national security information and documents that will be reviewed by or made available to, or are otherwise in the possession of, defense counsel in this case. Pursuant to the authority granted under section 3 of the Classi?ed Information Procedures Act, 18 U.S.C. App. the Security Procedures established pursuant to Pub. L. 96?456, 94 Stat. 2025, by the Chief Justice of the United States for the Protection of Classi?ed Information (reprinted following CIPA 9) (hereinafter the Security Procedures the Federal Rules of Criminal Procedure l6(_d) and 57; the general supervisory authority of the Court; and, in order to protect the national security, the Government?s motion is GRANTED. IT IS HEREBY ORDERED: 1. The Court ?nds that this case will involve classi?ed national security information, the storage, handling and control of which, by law or regulation, require special security precautions, and access to which requires a security clearance and a need?to?know.

Case Document 45 Filed 07/20/17 Page 17 of 66 2. The purpose of this Protective Order Order") is to establish the procedures that must be followed by all defense counsel of record, their designated employees, all other counsel involved in this case, translators and investigators for the defense and all other individuals who receive access to classi?ed information or documents in connection with this case. 3. The procedures set forth in this Order shall apply to all pre-trial, trial, post?trial, and appellate aspects of this case; and may be modi?ed from time to time by further order of the Court acting under this Court?s inherent supervisory authority to ensure a fair and expeditious trial. De?nitions 4. "classi?ed information. A. As used herein, the terms classi?ed national security information and documents," "classi?ed documents,? and "classi?ed material" refer to: Any classi?ed document or information that has been classi?ed by any Executive Branch agency in the interest of national security or pursuant to Executive Order 13526 or its predecessor orders as or or or COMPARTMENTED INFORMATION or any information contained in such documents; Any document or information, regardless of its physical form or characteristics, now or formerly in the possession of a private party, which has been derived from a United States Government classi?ed document, information, or material, regardless of whether such document, information, or material has itself subsequently been classi?ed by the Government pursuant to Executive Order 13526 or its predecessor orders as or or or Information drawn from unclassi?ed sources does not become classi?ed information

Case Document 45 Filed 07/20/17 Page 18 of 66 5. because similar information also happens to appear in classi?ed documents. Verbal classi?ed information known to the defense counsel; Any document or information, including verbal information, which the defense counsel have been noti?ed orally or in writing contains classi?ed information; Any information, regardless of place or origin and including "foreign government information" as that term is de?ned in Executive Order 13 526, that could reasonably be believed to contain classi?ed information; and Any information obtained from an agency that is a member of the United States "Intelligence Community" (as de?rxed in section 3(4) of the National Security Act of 1947, codi?ed at 50 U.S.C. 401 that could reasonably be believed to contain classi?ed information or that refers to national security or intelligence matters. The words ?documents, information," and ?materia shall include but are not limited to all written or printed matter of any kind, formal or informal, including originals, conforming copies and non?conforming copies (whether different from the original by reason of notation made on such copies or otherwise), and further include but are not limited to: A. Papers, correspondence, memoranda, notes, letters, reports, summaries, photo graphs, maps, charts and graphs, interof?ce and intra?of?ce communications, notations of any sort concerning conversations, meetings or other communications, bulletins, teletypes, telegrams and telefacsirniles, invoices, worksheets and drafts, alterations, modi?cations, changes and amendments of any kind to the foregoing;

Case Document 45 Filed 07/20/17 Page 19 of 66 B. Graphic or oral records or representations of any kind, including but not limited to photographs, charts graphs, micro?che, micro?lm, videotapes, sound recordings of any kind, and motion pictures; C. Electronic, mechanical or electric records of any kind, including but not limited to tapes, cassettes, disks, recordings, ?hns, typewriter ribbons, word processing or other computer tapes or disks, and all manner of electronic data processing storage; and D. Information acquired orally or verbally. 6. ?Access to classi?ed information" means having access to, reviewing, reading, learning or otherwise coming to know in any manner any classi?ed information. 7. ?Secure Area" shall mean a sensitive compartmented facility or other appropriate facility approved by a Classi?ed Information Security Of?cer for storage, handling, and control of classi?ed information. 8. All classi?ed documents or material and the information contained therein shall remain classi?ed unless the documents or material bear a clear indication that they have been declassi?ed by the agency or department that is the originating agency (hereinafter the "Originating Agency") of the document, material, or information contained therein. 9. Any classi?ed information provided to the Defense by the Government is to be used solely by the Defense and for the purpose of preparing the defense. The Defense may not disclose or cause to be disclosed in connection with this case any information known or reasonably believed to be classified information except as otherwise provided herein. 10. Classi?ed Information Security Of?cer. In accordance with the provisions of CIPA and the Security Procedures, the Court designates Carli V. Rodriguez-Fee as Classified Information

Case Document 45 Filed 07/20/17 Page 20 of 66 Security Of?cer for this case, and Debra M. Guerrero?Randall, Daniel 0. Hartenstine, Joan B. Kennedy, Shawn P. Mahoney, Maura Peterson, Win?eld S. "Scooter" Slade, and Harry Rucker as Alternate Classi?ed Information Of?cers for the purpose of providing security arrangements necessary to protect from unauthorized disclosure any classi?ed information to be made available in connection with this case. Defense counsel shall seek guidance from the Classi?ed Information Security Of?cer with regard to apprOpriate storage, handling, transmittal, and use of classi?ed information. I 11. Government Attorneys. The Court has been advised that the Government attorneys working on this case, Assistant United States Attorney Jennifer Solari and U.S. Department of Justice Attorneys Julie Edelstein and David Aaron, and their respective supervisors (collectively referred to hereinafter as the Government Attorneys"), have the requisite security clearances to have access to the classi?ed information that relates to this case. 12. Protection of Classi?ed Information. The Court ?nds that, in order to protect the classi?ed information involved in this case, only Government Attorneys, appropriately cleared Department of Justice employees, personnel of the Originating Agency, defense counsel, employees of defense counsel, translators, and investigators employed or hired by defense counsel, shall have access to the classi?ed information in this case. A. Defense counsel, employees of defense counsel or defense translators and investigators may obtain access to classi?ed documents or information only if such person has: 1) Received permission of the Court, either through this Order (for those named in paragraph 13 below) or by a separate Court order upon showing of a

Case Document 45 Filed 07/20/17 Page 21 of 66 need?to?know; 2) Received the necessary security clearance at the appropriate level of classi?cation, through or con?rmed by the Classi?ed Information Security Of?cer; and 3) Signed the Memorandum of Understanding in the form attached hereto, agreeing to comply with the terms of this Order. B. Defense counsel shall ?le originals of the executed Memoranda of Understanding with the Court under seal and serve copies of such document upon the Classi?ed Information Security Of?cer and the Government. C. The substitution, departure and removal for any reason from this case of counsel for the defendant, or anyone associated with the defense as an employee or otherwise, shall not release that person from the provisions of this Order or the Memorandum of Understanding executed in connection with this Order; and 13. Defense Counsel. The Defendant?s counsel shall be given access to classi?ed national security documents and information as required by the government?s discovery obligations and in accordance with the terms of this Protective Order, the requirements of CIPA, the Memorandum of Understanding described below, and any other orders issued pursuant to CIPA, and upon receipt of apprOpriate security clearances. Defendant Reality Leigh Winner (hereinafter ?the Defendant?) will also be given. access to national security documents and information as required by government discovery obligations and in accordance with the terms of this Protective Order, the requirements of CIPA, the Memorandum of Understanding described below, and any other orders pursuant to CIPA. Defense counsel and the Defendant will be given access to the same classi?ed

Case Document 45 Filed 07/20/17 Page 22 of 66 information. 14. Unless they already hold an appropriate security clearance and. are approved for access to classi?ed information in this case, the Defense, including all persons whose assistance the Defense reasonably requires, shall complete and submit to the Classi?ed Information Security Of?cer a Standard Form 86 (?Security Investigation Data for Sensitive Position"), attached releases, and "maj or case? ?ngerprints in order to obtain security clearances necessary for access to classi?ed information that may be involved in this case. The Classi?ed Information Security Of?cer shall provide access to the necessary forms. The Classi?ed Information Security Of?cer shall take all reasonable steps to process all security clearance applications. 1 5. Secure Area of Review. The Classi?ed Information Security Of?cer shall arrange for an appropriately approved Secure Area for use by the Defense. The Classi?ed Information Security Of?cer shall establish procedures to assure that the Secure Area is accessible to the Defense during normal business hours, after hours, and on weekends, in consultation with the United States Marshals Service. The Secure Area shall contain a separate working area for the Defense, and will be out?tted with any secure of?ce equipment requested by the Defense that is reasonable and necessary to the preparation of the defense in this case. The Classi?ed Information Security Of?cer, in consultation with defense counsel, shall establish procedures to assure that the ecure Area may be maintained and operated in the most ef?cient manner consistent with the protection of classi?ed information. No documents or other material containing classi?ed information may be removed from the Secure Area unless authorized by the Classi?ed Information Security Of?cer. The Classi?ed Information Security Of?cer shall not reveal to the Govenunent the content of any conversations he or she may hear among the Defense, nor reveal the nature of documents being reviewed by them, nor

Case Document 45 Filed 07/20/17 Page 23 of 66 the work generated by them. In addition, the presence of the Classi?ed Information Security Of?cer shall not operate to waive, limit, or otherwise render inapplicable, the attorney-client privilege. The Classi?ed Information Security Of?cer shall not disclose to counsel for the government the names of experts who, with appropriate security clearances, have inspected classi?ed information at the request of Defense counsel. I 16. Filings with the Court. Until further order of this Court, any motion, memorandum, or other document ?led by the Defense that defense counsel knows, or has reason to believe, contains classi?ed information in whole or in part, or any document the proper classi?cation of which defense counsel is unsure, shall be ?led under seal with the Court through the Classi?ed information Security Of?cer or an appropriately cleared designee of his choosing. Copies of newspaper articles and other publicly published documents need not be ?led under seal. Pleadings ?led under seal with the Classi?ed Information Security Of?cer shall be marked ?Filed In Camera and Under Seal with the Classi?ed Information Security Of?cer and shall include in the introductory paragraph a statement that the item is being ?led under seal pursuant to this Order, but need not be accompanied by a separate motion to seal. The date and time of physical submission to the Classi?ed Information security Of?cer or a designee, which should occur no later than 4.00 pm, shall be considered as the date and time of court ?ling At the time of making a physical submission to the Classi?ed Information Security Of?cer or a designee,.counsel shall ?le on the public record in the system a notice of ?ling. The notice should contain only the case caption and an unclassi?ed title in the ?ling. The Classi?ed Information Security Of?cer shall make arrangements I - for prompt delivery under seal to the Court and counsel for the Government any document to be ?led by the Defense that contains classi?ed information. The Classi?ed Information Security Of?cer shall

Case Document 45 Filed 07/20/17 Page 24 of 66 examine the document and, in consultation with representatives of the appropriate Government agencies, determine whether the document contains classi?ed information. If the Classi?ed Information Security Of?cer determines that the document contains classi?ed information, he or she shall ensure that the classi?ed portions of the document, and only those portions, are marked with the appropriate classi?cation marking and that the document remains under seal. All portions of any document ?led by the Defense that do not contain classi?ed information shall immediately be unsealed by the Classi?ed Information Security Of?cer and placed in the public record. 17. Any document ?led by the Government containing classi?ed information shall be ?led under seal with the Court through the Classi?ed Information Security Of?cer or an appropriately cleared designee of his choosing. Pleadings ?led under seal with the Classi?ed Information Security Of?cer or a designee shall be marked "Filed In Camera and Under Seal with the Court Information Security Of?cer" and shall include in the introductory paragraph a statement that the item is being ?led under seal pursuant to this Order, but need not be accompanied by a separate motion to seal. The date and time of physical submission to the Classi?ed Information Security Of?cer or a designee, which should occur no later than 4 00pm, shall be considered the date and time of ?ling. The Classi?ed Information Security Of?cer shall make arrangements for prompt delivery under seal to the Court and defense counsel (unless ex parte) any document to be ?led by the Government that contains classi?ed information. At the time of making a physical submission to the Classi?ed Information Security Of?cer or a designee, counsel shall ?le on the public record in the system a notice of ?ling The notice should contain only the case caption and an unclassi?ed title in the ?ling.

Case Document 45 Filed 07/20/17 Page 25 of 66 18. Sealing of Records. The Classi?ed Information Security Of?cer shall maintain a separate sealed record for those pleadings containing classi?ed materials, and retain such record for purposes of later proceedings or appeal. 19. Access to Classi?ed Information. The Defense shall have access to classi?ed information only as follows: A. All classi?ed information produced by the Government to the Defense, in discovery or otherwise, and all classi?ed information possessed, created or maintained by the Defense, shall be stored, maintained and used only in the Secure Area established by the Court Information Security Of?cer; The Defense shall have free access to the classi?ed information made available to them in the Secure Area, and shall be allowed to take notes and prepare documents with respect to those materials. However, the Defense shall not, except under separate Court order, disclose the classi?ed information, either directly, indirectly, or in any other manner which would disclose the existence of such, to pursue leads or in the defense of the defendant; The Defense shall not copy or reproduce any classi?ed information in any form, except with the approval of the Classi?ed Information Security Of?cer, or in accordance with the procedures established by the Classi?ed Information Security Of?cer for the operation of the Secure Area; All documents prepared by the Defense (including, without limitation, pleadings or other documents intended for ?ling with the Court) that do or may contain classi?ed information, shall be transcribed, recorded, typed, duplicated, copied, or otherwise 10

Case Document 45 Filed 07/20/17 Page 26 of 66 prepared only by persons who have received an appropriate approval for access to classi?ed information, and in the Secure Area on equipment approved for the processing of classi?ed information, and in accordance with the procedures established by the Court Information Security Of?cer. All such documents and any associated materials (such as notes, drafts, copies, typewriter ribbons, magnetic recordings, exhibits, etc.) containing classi?ed information shall be maintained in the Secure Area, unless and until the Classi?ed Information Security Of?cer determines that those documents or associated materials are unclassi?ed in their entirety. None of these materials shall be disclosed to counsel for the Government; E. The Defense shall discuss classi?ed information only within the Secure Area or in another area authorized by the Classi?ed Information Security Of?cer, and shall not discuss or attempt to discuss classi?ed information over any standard commercial telephone instrument or of?ce intercommunication system; and F. The Defense shall not disclose, without prior approval of the Court, any classi?ed information to any person not authorized pursuant to this Order, except to the Court, court personnel, and the Government Attorneys who have been identi?ed by the Classi?ed Information Security Of?cer as having the appropriate clearances and the need?to?know that information. Any person approved by the Court for disclosure under this paragraph shall be required to obtain the appropriate security clearance, to Sign and submit to the Court the Memorandum of Understanding appended to this Order, and to comply with all terms and conditions of this Order. If preparation of the Defense requires that classi?ed information be disclosed to persons not named in this 11

Case Document 45 Filed 07/20/17 Page 27 of 66 Order, then, upon approval by the Court, the Classi?ed Information Security Of?cer shall seek to obtain security clearances for them at the request of defense Counsel. G. Information that is classi?ed that-also appears in the public domain is not thereby I automatically declassi?ed unless it appears in the public domain as the result of an of?cial statement by a U.S. Government Executive Branch of?cial who is authorized to declassify the information Individuals who by virtue of this Order or any other court order are granted access to the classi?ed information may not con?rm or deny classi?ed information that appears in the public domain. Prior to any attempt by the Defense to have such information con?rmed or denied at trial or in any public proceeding in this case, the Defense must comply with the noti?cation requirements of section 5 of CIPA and all the provisions of this Order. H. In the event that classi?ed information enters the public domain, the Defense is precluded from making private or public statements where the statements would reveal personal knowledge ?om non-public sources regarding the classi?ed status of the information, or would disclose that the Defense had personal access to classi?ed information con?rming, contradicting, or otherwise relating to the information already in the public domain. The Defense is not precluded from citing or repeating information in the public domain. 20. Procedures for the use or disclosure of classi?ed information by the Defense shall be those provided in sections 5 and 6 and 8 of CIPA. To facilitate the Defense's ?ling of notices required under section 5 of I CIPA, the Classi?ed Information Security Of?cer shall make 12

Case Document 45 Filed 07/20/17 Page 28 of 66 arrangements with the appropriate agencies for a determination of the classi?cation level, if any, of materials or infon?nation, either within the possession of the Defense or about which the Defense has knowledge and which the Defense intends to use in any way at any pre?trial proceeding, deposition or at trial. Nothing submitted by the Defense to the Classi?ed lnfonnation Security Of?cer pursuant to this paragraph shall be made available to counsel for the Government unless so ordered by the Court, or so designated by the Defense. Any and all items that are classi?ed Shall be listed in the defendant's CIPA section 5 notice. To the extent that any classi?ed information is the basis of any motion ?led by the Defense, such motion shall be preceded by a section 5 notice. 21 . Violations of this Order. Unauthorized use or disclosure of classi?ed information may constitute violations of United States criminal laws. In addition, violation of the terms of this Order shall be immediately brought to the attention of the Court, and may result in a charge of contempt of Court and possible referral for criminal prosecution. Any breach of this Order may result in the termination of a person's access to classi?ed information. Persons subject to this Order are advised that direct or indirect unauthorized use, disclosure, retention or negligent handling of classi?ed information could cause serious damage, and in some cases exceptionally grave damage, to the national security of the United States, or may be used to the advantage of a foreign nation against the interests of the United States. This Order is to ensure that those authorized by the Order to receive classi?ed information will never divulge the classi?ed information disclosed to them to anyone who is not authorized to receive it, or otherwise use the classi?ed information, without prior written authorization from the Originating Agency and in conformity with this Order. 13

Case Document 45 Filed 07/20/17 Page 29 of 66 22. It shall not Violate this Order for an individual subject to this Order to disclose I . information in the public domain or information that the individual did not know, and reasonably should not have known based on information provided by the government in this case, is classi?ed. Any individual subject to this Order who intends to disclose information and is not certain whether that information is classi?ed should consult with the C180. 23. All classi?ed information to which the Defense has access in this case is now and will remain the property of the United States. The defense Counsel, defense counsel employees, defense translators, investigators and anyone else who receives classi?ed information pursuant to this Order shall return all such classi?ed information in their possession obtained through discovery from the Government in this case, or for which they are responsible because of access to classi?ed information, to the Classi?ed Information Security Of?cer upon request. The notes, summaries and Other documents prepared by the Defense that do or may contain classi?ed information shall remain at all times in the custody of the Classi?ed Information Security Of?cer or the duration of this case. At the conclusion of all proceedings, including any ?nal appeals, all such notes, summaries and other documents are-to be destroyed by the Classi?ed Information Security Of?cer in the presence of defense counsel if so desired. 24. Nothing in this Order shall preclude the Government from seeking a further protective order pursuant to CIPA and! or Rule 16(d) of the Federal Rules of Criminal Procedure as to particular items of discovery material. 14

Case Document 45 Filed 07/20/17 Page 30 of 66 25. A copy of this Order shall be issued forthwith to counsel for the defendant, who shall be responsible for advising the defendant and defense counsel employees, of the contents of this Order. SO ORDERED this day of 2017. HON. BRIAN K. EPPS UNITED STATES MAGISTRATE JUDGE 15

Case Document 45 Filed 07/20/17 Page 31 of 66 Tab

Case Document 45 Filed 07/20/17 Page 32 of 66 AUTHEN - U.5. GOVERNM ENT MATION In the Senate of the United States, October 2 (legislative day, September 22), 2000. Resolved, That the bill from the House of Representa? tives (HR. 4392) entitled ?An Act to authorize apprOpria- tions for ?scal year 2001 for intelligence and intelligence?re- lated activities of the United States Government, the Commu? nity Management Account, and the Central Intelligence Agency Retirement and Disability System, and for other pur- poses?, do pass with the following AMENDMENT: Strike out all after the enacting clause and insert: 1 SECTION 1. SHORT TABLE OF CONTENTS. 2 SHORT Act may be cited as the ?In- 3 tetltgence Authoeteatton Act for Ftscat Year 2001

Case Document 45 Filed 07/20/17 Page 33 of 66 2 1 TABLE OF table of contents for 2 this Act is as follows.- Sec. 1. Short title,- table of contents. TITLE I INTELLIGENCE ACTIVI TIE Sec. 101. of appropriations. Sec. 102. Classified schedule of authorizations. Sec. 103. Personnel ceiling adjustments. Sec. 104. Community Management Account. TITLE INTELLIGENCE AGENCY RETIREMENT 1 ND DISABILITY SYSTEM- Sec. 201. of appropriations. TITLE PROVISIONS Sec. 301. Increase in employee compensation and bene?ts authorized by law. Sec. 302. Restriction on conduct of intelligence activities. Sec. 303. Prohibition on unauthorized disclosure of classified information. Sec. 304. POW-TIMIA analytic capability within the intelligence COmniu-nity. Sec. 305. Applicability to lauj?il United States intelligence activities of Federal laws implementing intemational treaties and agreements. Sec. 306. Limitation on handling, retention} and storage of classified ma- terials by the Department of State. Sec. 307. Clam?cation of standing of United States citizens to challenge certain blocking of assets. Sec. 308. Availability of certain funds for administrative costs of Counterdwg In? telligence Executive Secretariat. Sec. 309. Designation of Daniel Patrick Moynihan Place. TITLE INTELLIGENCE AGENCY Sec. 401. Expansion of Inspector General actions requiring a report to Congress. Sec. 402. Subpoena authority of the Inspector General. Sec. 403. Improvement and extension of central services program. See. 404. Details of employees to the National Reconnaissance O?ice. Sec. 405. Transfers of funds to other agencies for acquisition of land. Sec. 406. Eligibility of additional employees for reimbursement for professional liability insurance. TITLE OF DEFENSE INTELLIGENCE ACTIVITIES Sec. 501. Two?year extension of authos'ity to engage in commercial activities as security for intelligence collection activities. Sec. 502. Role of Director of Central Intelligence in experimental persounel pro- gram for certain scienti?c and technical personnel. Sec. 503. Prohibition on transfer of imagery from General Defense Intel- ligence Program to National Imagery and Mapping Agency Pro? gram. Sec. 504. Prohibition on transfer of collection management personnel from Gen? eral Defense Intelligence Program to COmmu-nity Account. Sec. 505. Authorized personnel ceiling for General Defense Intelligence Program. HR 4392 EAS

Case Document 45 Filed 07/20/17 Page 34 of 66 CNLIILLDN 3 Sec. 506. Measurement and signature intelligence. TITLE 00 UNTERINTELLIGENCE MA TTER 8 Sec. 601. Short title. See. 602. Orders for electronic surveillance under the Foreign Intelligence Surveil lance Act of 1978. Sec. 603. Orders physical searches under the Foreign Intelligence Surveillance Act of 19578. Sec. 604. Disclosure of information acquired under the Foreign Intelligence Sur- veillance Act of1978 for law purposes. Sec. 605. Coordination of counterintelligence with the Federal Bureau of Inves- tigation. Sec. 606. Enhancing protection of national security at the Department of Justice. Sec. 607. Coordination requirements relatingto the prosecution of cases involving classi?ed information. . Sec. 608. Severability. TITLE OF INFORMATION ON JAPANESE IMPERLAL ARMY Sec. 701. Short title. Sec. 702. Establishment of Japanese Imperial Army Records Interagency Work- ing Group. Sec. 703. Requirement of disclosure ofrecords. Sec. 704. Expedited processing of FOIA requests for Japanese Imperial Anny records. Sec. 705. E?ective date. TITLE OF INFOREIMTION Sec. 801. Short title. Sec. 802. Findings. Sec. 803. Public Interest Declassi?catimi Board. See. 804. Identification, collection, and review for declassajication of infoinnatiOn of archival value or extract-'dinary public interest. See. 805. Protection of national security in?rrmation and other infomnatiou. Sec. 806. Standards and procedures. Sec. 807. Judicial review. See. 808. Funding. Sec. 809. De?nitions. Sec. 8.10. Sunset. TITLE I TELLI GEN CE ACTIVITIES SEC. 101. AUTHORIZATION OF APPROPRIATIONS. AUTHORIZATION OF APPROPRIATIONS FOR FISCAL AR are hereby authorized to be appro- priated for fiscal year 2001 for the conduct of the intel? HR 4392 EAS

Case Document 45 Filed 07/20/17 Page necessaiy for increases in such compensation or benefits authorized by law. SEC. 302. RESTRICTION ON CONDUCT OF INTELLIGENCE ACTIVITIES. The authorization of appropriations by this Act shall not be deemed to constitute authority for the conduct of any intelligence activity which is not otheiwise authorized by the Constitution or the laws of the United States. ?300?deme SEC. 303. PROHIBITION ON UNAUTHORIZED DISCLOSURE Ir-d CD OF CLASSIFIED INFORMATION. 3-7 of title 18, United States Code, is amended? p?l DJ (1) by redesignating section 798A as section p?L 7983, and Ln (2) by inserting after section 798 the following new section 798A.- a] 798A. Unauthorized disclosure of classi?ed infor- p?l OO mation KO being an o?'icer or em? to CD ployee of the United States, a fonner or retired officer or employee of the United States, any other person with an? thorized access to classi?ed information, or any other per? son formerly with authorized access to classified infer-nia? to tion, knowingly and willfully discloses, or attempts to dis- close, any classified information acquired as a result of such HR 4392 EAS

Case Document 45 Filed 07/20/17 Page 36 of 66 11 person?s authorized access to claSSified information to a per- son (other than an ojficer or employee of the United States) who is not authorized access to such classified infomnation, knowing that the person is not authorized access to such classified infomnation, shall be fined under this title, im? prisoned not more than 3 years, or both. CONSTRUCTION or in this section shall be constmied to establish criminal liability for disclosure of classi?ed information in accordance with 10 applicable law to the following.- 11 Any justice or judge ofa court of the United 12 States established pursuant to article of the Con? 13 stitution of the United States. 14 The Senate or House of Representatives, or 15 any committee or subcommittee thereof or joint com? 16 mittee thereof or any member of Congress. 17 A person or persons acting on behalf of a 18 foreign power (including an intemiational organiza? 19 tion) if the disclosure? 20 ?(111) is made by an officer or employee of 21 the United States who has been authorized to 22 make the disclosure; and 23 is within the scope of such o?icer?s or 24 employee?s duties. HR 4392 EAS

Case Document 45 Filed 07/20/17 Page 37 of 66 12 1 Any other person authorized to receive the 2 classified information. 3 this section.- 4 The term ?authorieed?, in the case of access 5 to classi?ed iijomnation, means having authority or 6 permission to have access to the classified information 7 pursuant to the provisions of a statute, Executive 8 Order, regulation, or directive of the head of any de? 9 partment or agency who is empowered to classify in- 10 fomnation, an order of any United States court, or a 11 provision of any Resolution of the Senate or Rule of 12 the House of Representatives which governs release of 13 classified infomnation by such House of Congress. 14 The term ?classi?ed im?brmation; means in- 15 formation or material prOperly classified and clearly 16 marked or represented, or that the person knows or 17 has reason to believe has been properly classi?ed by 18 appropriate authorities, pursuant to the provisions of 19 a statute or Executive Order, as requiring protection 20 against unauthorized disclosure for reasons of na~ 21 tional security. 22 The term ?ojficer or employee of the United 23 States? means the following.- 24 ?(111) An of?cer or employee (as those terms 25 are defined in sections 2104 and 2105 of title 5). HR 4392 EAS

Case Document 45 Filed 07/20/17 Page o??icer or enlisted member of the Armed Forces as those terms are defined in sec? tion 101(b) of title (b CLERICAL table of sections at the beginning of that chapter is amended by striking the item relating to section 798A and inserting the following new items.- Unauthorized disclosure of clasn?ed infomnation. ?7988. Temporary extension of section 794.?. SEC. 304. ANALYTIC CAPABILITY WITHIN THE TELLI GEN CE COMMUNITY. Title I of the National Security Act of 1947 (50 U. S. O. 402 et seq.) is amended by adding at the end the following.- CAPABILITY 115- The Director of Central Intelligence shall, in consultation with the Sec? retary of Defense, establish and maintain in the intelligence community an analytic capability with responsibility for intelligence in support of the activities of the United States relating to unaccounted for United States personnel. The analytic capability maintained under para? graph (1) shall be known as the analytic capa~ bility of the intelligence community. ?(in SCOPE OF responsibilities of the analytic capability maintained under subsection shall? HR 4392 EAS

Case Document 45 Filed 07/20/17 Page 39 of 66 Tab

pf I. 7/20/17 Page 40 of 66 OFFICIAL USE ONLY Hitto?cal review of the problern and some remedial proposals. THE PROTECTION OF DATA Iohn D. Morrison, Ir. The unauthorized exposure of classi?ed information is a chronic problem for governments and. intelligence agencies, Defense against the conscious agent of a foreign power is tilde-rent from, and in some ways less di?cult than. deterring revelations; due to carelessness, malice.- or greed on the part of government employees. The problem is particularly. acute in a democratic society when laws and courts must provide broad protection. to criminal defendants. The deterrence- provided by the espionage laws and related statutes is weakened by the di?culty of prosecution under them. This is; especially true in cases involving disa?ected or careless employees of intelligence agencies; the defenses usually include strong equitable pleas which may excite a sympathetic public response. No legislation er administrative procedure can oEer perfect pro- tection. It is: submitted. however, that both our laws and our admins Istrative procedures could be improved so as to provide more eEective deterrence. Some particular avenues that might be taken will emerge from the following discussion. The Espionage crimes: An Incomplete Structure A review of American legislationdn the ?eld of criminal espionage shows that historically there has been limited legislative eEort directed- to the "protection of intelligence- data. As a result there is a startling lack of protection fer a governmental function of growing importance and sensitivity. Perhaps the need for laws protecting intelligence data has reached signi?cant proportions only in the relatively recent past. The changes. technological and other in the manner in which nations deal with each other have aimed some mpmvements in legislation dealing with. the protection of state secrets Diplomatic communications have traditionally been protected. As early as 1807 the Supreme Court suggested that .the legislature rm "and proud. he against crimes-admit the national - security which ?have OFFLCIAI. USE 69

Case 1:17-cr-0003E" rial . OFFICIAL USE ONLY Legal Protection not ripened into treason.? It was not until 1911, however, that Congress passed the ?rst important statute dealing with the broad problem of espionage. In 191.7 the language of the 1911 act was amended to read much as it does today. More recently congressional attention has been focused?and appropriate legislation enacted?on the problems involved in protecting atomic energy dat?a and com- munications intelligence} The Internal Security Act of 1950? made it unlaw?il tor a government employee merely to communicate classi- fied information to a lmown representative at a foreign. government.? However. the espionage laws" tare Still the basic statutory protection against unauthorized disclosure of intelligence materials and informa- tion. No legislation has yet been enacted to cover the new problems arising Out of the chronic Lcold war? status of international relations and the consequent need for a sophisticated, professional intelligence apparatus as an arm of the executive. The wartime concept of the military secret is inadequate to cover information 'ahaut the personnel. activities, ?and products of such an apparams. information. whose extreme sensitivity is often not readily apparent even though its exposme may have a most damaging e?e?ct on the national --securi_ty. These shortcomings point to the need for new. legislation establishing a category ?'Intelligence Data"a_r1d providing that anything so desig- nated by an authorized ot?binl shall be judicially recognized as such solely .on the beats of that designation. This would solve a vexatiou-s and recurring problem for --which'there is no Imam cure in existing laws. That-problem is the immunity enjoyed by an exposer of sensitive infomation when the information itself cannot for practical reasons- :be brought into the open for the purpose of prosecution. The O?icial Secrets Acts It has often been suggested that. if legislation is needed. in this area. the British O?ci'al Secrets. Acts With their broader protection otter 11 good elam-ple- to be followed. It is not commonly understood ?paste Bellman and Ex parts 5mm; .4 Grand: 75. 1-27,. 2 Ed. 554.. 571 (1801'). ".42 use. 52271 et seq. IB 5798. 'w U-LS.C.. 578mb). 'Soe- Scotland: 0. us, 317 F. 2d 546. cert denied; as s. Ct.- 1397 (.1963). '18 USS. ?791?793. 70 OFFICIAL USE ONLY

Case I Legal Protection OFFICIAL USE ONLY that the British acts are based on. a different legal theory from that underlying our espionage acts. Under our system the information divulged must be shown to be related to national defense and security either by its very nature or as coming within statutory ?de?nitions such as those for communications intelligence and atomic energy data. The British acts are based on the. theory of privilege according to which all c?cial information. whether or not related to the national defense and security. is the property of the crown. It is. therefore privileged. and those who receive it- c?cially may not divulge it without the crown's authority. In a British prosecution for Unauthorized disclosure several con- sequences flow from the privilege theory Portions of the trial can be held in. camera if the court agrees. Under our ccristitwution while certain procedural aspects can he considered in camera, no part of the actual trial could be heard privately In Britain certain pre- sumptions may apply For instance. if the defendant is known to have possession of privileged infer-motion and to have been in the company of a known foreign espionage agent. there is a presumption diet he passed the information. The presumption is rebuttable; but our Supreme Court opinions indicate that such a presumption would not be permissible here. Most important, in the English system it is not necessary to prove that any item of information relates to the national defense and Security.- A good example is the so-called ISis case in. which two Oxford students published in their college: magazine. Isis. the: Story of their experiences in the Navy. including tecluiical intelligence operations in the Baltic. The prcsecution merely testi?ed that?the article contained information which they had acquired in their 'o?cinl service and was. therefore. After the verdict of guilty. the prosecution approached the court alone. without presence of defendants or defense counsel. and. briefed the court, solely for purposes of sentencing. on the signi?cance of each item of information to thegovernment. Such a brie?ng. we believe. would be held error under our system;1 In another- case. that of an RAF o?cer named W'raight? who detected to Russia and then returned. a' government witness who had inter- ?Iencluo. as. 353 US 657. 668 (-1957) Butsee post leach Statute 18 U5.C. $1500?) permi_tting in camera examination for relevancy and editing of prestrial report of government witnesses. OFFICIAL USE ONLY 71

Case 1:17-cr-0003E01-i .. OFFICIAL USE ONLY Legal Protection viewed the defendant for the security services was allowed to tes'ti?y without Publicly identifying himself. His name was handed in writing to the court. Possibly this could be done here if the defense agreed to it, but- it- seems clear it could not? he done over the defenses objection. In short. the O?cial Secrets Acts would seem to be in important. respects unconstitutional. in this country and therefore cannot be relied on as example?S-of means by which sire-could protect intelligence data. In. acidi?cn, despite the technical advantages which the British laws provide for the prosecution. experience has shown that these do not by any means give complete protection; they are only to some degree more effective than our system. {Mel-ligands Sources and Methods The statutory authorities and responsibilities of the Director of Central Intelligence include the responsibility for "protecting intelli- gence sources and methods from unauthorized disclosure." "i The Con- gress's use of. the term "intelligence sources and methods" indicates its reCognition? of the existence of a? special kind of data encompassing a great deal more than what is usually termed ?classi?ed intelligence The espionage and the statutes designed to protect communications and atomic seen-ets though they specify in detail the lands of information they seek: to protect, nevertheless do not cover everything that.- might be de?ned as intelligence data whose exposure could be detrimental to the netipnal interests For example. lmowing the identities of U. S. covert-'- intelligence o?joers. or the fact that .8 intelligence is malnug a study of certain published unclassi?ed rue-- teria'ls might: be of great value to a foreign intelligence agency. but there. is'some question whether such information. would he considered by a court to be included among the things protected by existing statutes. The Congress has also recognized] . the need Ear; protecting intelli- gence sources and mehhods; Ehy enacting for CIA number of special authorities and exemptions from legal requirements otherwise in general. force throughout the government The Agency is exempted from the ?provisions of any. .law which require the Publication 'Ni?ional Seousity Act of 1947-, Stat. 495 50 -U..SQ. $403. '72- . OFFICIAL --USE QNLY

Case Page 44 of 66 Legal Protection USE ONLY or disclosure of the organization, functiOns, names, o?cial titles, salaries, or numbers of personnel employed by the Agency."0 Simi- larly, the Agency is authorized to expend the funds made available to it for objects of a con?dential, extraordinary, ot- Emerge-nay nature. such expenditures to be accounted for solely on the certi?cate of- the Director It is exempted from statutory requirements regarding. exchanges of funds and the performance rating of employees and from laws and executive orders governing appeals from adverse personnel actions. Thus Congress has charged the Director of Central Intelligence with. protecting intelligence scurceo :and methods from unauthorized disclosure. has recognized "that the term. ?intelligence sources and methods" encompasses. an area not entirely covered in other statutes, and has 'a?rrned the need for such protection'by providing statutory authority for that purpose. The void in the statutory structure: pro- ?gtecting intelligence source": and methods is the absence of sanctions against. unauthorized; disclosure which can be: invoked without dis- closingthe very sources and methods whose protection is sought. The Judicial View of Intelligence The courts have [nuggrecognized that the secret intelligence activities of the executive brands, 'thdugh indispensable to the government, are by their nature matters whose disclosure would be injurious to the public. In the Tattoo we oompensa'tion was sought under a secret contract with hesiden?t- Lincoln for espionage ac?vi?es behind Con- federate lines. The opinion-of the Supreme Court-stated: If upon contracts of such I nature an notion ligninst the ?govement could be maintained in the Count of Claim: whenever an him- self entitled to greater or di?orent compensation than that sworded to him. thedotn?ih of the dealings with individuals and o?oen. might be exposed to the serious detriment of the public. A secret service, with liability to publicity in this my would be impossible; and. as such sonriooa are sooner-nee indispensable to the Government. its agent": in those services must look for their com- pensation to the contingent fund of H15 department employing diam,- and myaward. The secrecy which web contract: impose precludel any notion for their enlistm- 1' Control Intelligence Agency Act of 19.19. u-omenditd. i0. 63 Stat. 208. 50 USS, 94033. "Te?on u. 92.0.5. 105 {1815}. OFFICIAL USE 73 .

Case - mom /20/17 Page 45 0f6 i USE ONLY Legal Protection meet. The publicity produced by an action would itself be a breach of 'n contact of that kind. and thus-defeat a recovery. . It may be stated no a general principle. that public policy forbids the maintenance of any suit in a- court of justice. the trial of which would in- evitably lead to the of matters which the low itself regards as con?dential._ and respecting which It will not let the con?dence be violated. On this principle. suits cannot be maintained-which would require 'a disclonrre . of the con?dence: of the confessioml. or those between husband or. wife. or of communications by a client to his counsel for professional advice, or of a patient" to his physician for a simildr pu?rpose Much greater reason atrium-the with the Gouernmer?. a: the exirtence of a contract of that kind is itself a foot not to be ditched. [Emphasis supplied] The Totten case marks the beginning of the juridical idea?and judicial cognizance of it?that there is a kind of relationship to the I. state which is con?dentinlt beyond judicial inquiry. and involving a trust of such nature that the courts cannot aid a breach of it. even in - their solemn duty of administering justice.? A secret agent is almost impotent in his own cause; he literally cannot maintain an actiOn in the courts where his secret'a-ctivities are germane to the case.? Iodide! Access to. Sanitioe Data . Present espionage laws dealing with unlawful transmission or ob- taining of information related to the national defense" have been Interpreted its requiring proof of certain questions of fact; evidence on these questions must he submitted to the jury for consideration of its weight and sufficiency. For instance, the information betrayed most in fact he related to the national defense and must not have i been generally available.? The courts have. held that a jury cannot? .- ?nd on these facts unlees it has access- to the infarmation Illegedly related to the national defense and "hears testimony regarding its use, I importance; exclusiveness. and value to a foreign government or SeeFirth Standing-Steel Bethlehem Steel 199: Fed. 353 (1912).. in I Seecaselclted innate 18Ct. 555,- 151 11.55.: 433 a. U5., 27 Ct. so (1892); Tucker tr. 0.5.. 1213- F. Supp. .371 (1954). 18 USE. ?793. 79-1, and 7985 D. Hein?a. 151 F.2d 313, 815. (1945), citing Goth 0.. 115., 312 US. 19, 429, 35 LEG. 483' (1941). 74 OFFICIAL USE ONLY

'1 Case 1:17-lcr-0003 3' 331137/20/17 Page 46 of 66 Legal Protection OFFICIAL use ONLY potential injury to the United States." The defendant in a criminal proceeding must likewise. have access to it, since the information itself rims):r tend to exculpate him with-respect to dealings in it.? As judge Learned Hand said in US. v. Andobchek. ?The 00vemment must choose; either it must leave the transactions in the obscurity from which a trial them, or .it must expose: them fully." These rulings have left the government in the position of having to reveal in court the very information it is trying to keep secret or else not prosecute those Who steal information. and use it to. the injury of the nation. To invoke the law?s protection of the secret, the secret must he told. judicial experience. With the privilege which protects military and state. secrets has been limited in this country.'.? British experience, though" mere extensive, is still slight compared to that with other evidentia?ry privileges." Nevertheless, it is clear-sat: least from the civil. precedents that the court itself must determine whether the circum- stances are appropriate for the claim of privilege.?0 and yet do so without forcing a. clinics-dream- the very thing the privilege-is designed to protect.? The latter requirement is the. real dif?culty In dealing with it, courts have found it helpful to draw upon judicial experience ?Carin o. U.S.. 312 11.5.. 19. 30-31. supra note 14. 0. Reynolds. 3-45 U5. 1, 73 533 (19531; Inch 0. (1.5-, supra note 7. 149 PM 503, 506. "Sen Thom-u. USE. 93' US. 105l 23 L?d. 305 ("1378); Firth Sterling Steel'Co. Bethlehem Steel Co.. .199 Fed. 353 (1912); Pollen a. Ford Instrument 28 Supp. 533 (1939); Creamer o. 0.3., 9 EM). 203 (1949]. See also ?Bonit- Line as. as F. supp. 531. 163 F.2d 133 {1947 a Wigmore on Evidence we Ed.) also. 2212?). p. 161. and sec. 2373(gJ(5), pp. 76.5 et seq}; 1 Greenleaf on Evi- dence (lath Ed.) sea-250451: Sanford. Evidently-y Privileges Against the Pro- duction of Data Within the Control of Executive Deputnenh, S'Yn'nderhilt Law Review 73-75 ("1949); See also Roan 1.1. Emerson.- 134 hie-1'5. 2d 716. 206 Misc. 727 (1954). Mac-ml, Wis- Ltd" All. 824 (1942). For a thorough stud}r of the history and application of the'O?icinl Semis-Acts "see David Nd-in'the Public Interest (Londmr, 1985).- rwiowod in Studio: J, p. 97.. 'Id. at 842. '1 Us. 0. Reynolds, supra note 16. at 3, citing Dom o. Comm-cl. Laird .b (20.. Ltd, supra note 19, and How u. 0.5., U5. 473 (1951.). OFFICIAL USE ONLY 3'5

OFFICIAL USE ONLY Legal Protection in. dealing with an analogous privilege, that against selfsin?crimination. The Supreme Court said in U5. The privilege against se-lI-iucriniination presented the courts with a similar sort of problem. The much judicial inquiry into the claim of privilege would force disclosure of the thing the privilege was meant to protect. while a complete abandonment of judicial control would lead to intolerable abuses. Indeed; in the earlier stages of judicial experience with the problem, both entire-ores were advocated, some-saying that "the here assertion by the witness must be taken as: conclusive. and others saying that the witness should he required to reveal the matter behind his claim of privilege to the judge for veri?cation. Neither gas-heme prevailed. and a sound formula of compromise was developed. . . . Regardless of how itiis. articiilated. some like-formulae! compromise must be applied here. Judicial control? over the evidence in a; case cannot be abdicated to the septic. of erecutive o?o?ers. Yet we will not-"go so far as to say that the court may automatically require acornplete disclosure to the judge below-the. claim of privilegevrill be accepted case. It may be possible to satisfy the court, from all the theme. that there is a reasonable. danger that of the evidence will military ?utters which. In' the interest of should not be divulged. When this is .the case, the occasionfor- the privilege is appropriate, and} the courtshou?ld not jeopardize the security-which the privilege is'meanttoprotect by $331131 upon an examination of the modem-revel: by the judge alone, ill an: a. ,Of course Reynolds was a civil case, fhjuti the evidentiary di?cu?lt'y in criminal cases is quite comparable.- Thus. citing Reynolds, the Supreme Coilrt stated in lentils U.S.: 3? It-is unquestionably true that the protection of vital national interests may militate-against puhlic disclosure of documents in the Government's possession. Tbil :53! been recognized-in decisions oil this Court in civil causes where-the- Cour-tthas considered the statutory anther-?y the of government to adopt regulation-not inconsistent with law for .. . of the-records, papers, appertaining Inhis department.- The Attorney-Sceneral .has adopted regulations mi to this authority declaring all Justice De.- .?S'upra- note 16. at 8-10'. ?In Kaiser Alunsieum is. ChemicalCorp o. 0.5., 151211. Supp. 939 (1953-3, the'i'iuurt of Claimsheiil dut- judicial examination at in document for which-execu- tive'prlvilege has b?een-assel-tedrshould not he ordered without a de?nite showing by plaintiE-oif nee indicating reasonable cal-1!! for requiring such a submission. Otherwise. saidthei Court. ?949. the executive determination ?would be merely and ?the o?cer. and agency must aware of the needs of government . and mostcognhat with [sic] the die legal claim will have-to yield determination to anotlier o?cer (the-Court) less wellequipped.? Supra note 7-, at 670. 76 I OFFICIAL USE ONLY

Case Page 48 of 66 Legal Protection OFFICIAL USE ONLY partnent records con?dential and that no disclosure. including disclosure in response to subpoena. may he made without his permission. But this C'Ourt has noticed, in U5. 13. Reynolds. the holdings of the Court of Appeals for Second Circuit that, in criminal causes . the Government can invoke itseevidentiery privileges only at the price of letting the defendant go free. '1'he rationale of the criminal cases is that. since the (Statement which proseeutes an coursed also has the duty to see that justice is done, it is unconscionable to allow it to: undertake prosecutmn. and then invoke it's governmental privileges to deprive. the accused. of anything which might be material to his defense. . . The loophole o?orded by this edd?entiary di?culty has not been overlooked by the thief who limits his bade to information too sensitive to be revealed. Nor is it ignored by the more imaginatch among those accused of other crimes when they claim that their offenses were committed at the behest of an intelligence agency which uses its statutory shield to protect itself at the expense of its agent. Judicial Evaluation-of Semitice-Dato It must be emphasized that undesired disclosure is only one dif- ?cultyin the-submission of'intelligen'ce data to a jury. There is?another great-problem the capability of the jury to evaluate-such data, often complex and technical and often meaningful only in the context of other sensitive information not otherwise bearing on the case.? It can of course be argued that jmies often have to grapple with tech- nical facts and that the law provides for assistance in such instances in the form of expert witnesses. But in a case dealing with secret information, resort to these legal devices merely inu-eases- the amount of sensitive data which must he sham of'its usefulness by disclosure, inn-easing the ?government's reluctance. to prosecute-and- thwarting the protectiVe congressional intent expressed in legislation Some Avenues-i for Adion The com-ts have recognized that intelligence activities are con- ?dential per se and not subject to indiclsl inquiry. Congress, in the National Security Act, hasoharged the Director of Central Intelligence with the protection of intelligence sources and. methods and has given "The the at345 us. 12. ofexeclrtiveprivilegei . OFFICIAL USE ONLY 77?

Case 1:17-cr-00dym REDWEMQJ Page 49 of 66 OFFICIAL USE ONLY . Lego-l Protection him certain statutory authority-and exemptions to-ossi'st him inmeeting this obligation. Yet the espionage laws and related statutes enacted for the some or a similar purpose can often not be put to work just when the o?ense represents the greatest potential threat to the public welfare. There are three steps which would go for toward solving the problems which still exist in this area. Two of them would seem to require new legislation; the third might be accomplished. at least with respect to CIA, by regulation under the BET: existing authority. First would be a criminal. statute de?ning whet is to be protected and providing punishment for. exposure. Second.- this statute- should also confer injunctiw authority, because Pm?on of exposure is more to the point than punishment for violation and in many cases. no injunction might offer greater deterrence than the penal provisiOns for violation. In addition. the act might provide that [screens convicted under it would forfeit retirement bene?ts; precedent for this exists in 5 U.S.C. $312, the so-ealled 'Hiss Act." The third step would be a requirement by the Director that all employees; agents, consult: nts1 and others who entei- into a. relation- ship viritb CIA giving them privit-y to. intelligence: data agree in writ- ing to assign as at that time to the Agency all rights in anything in- tended by them for publication based on information received in the course of their of?cial duties. Perhaps a similar step could be taken by other intelligence agencies. Such agreements. along with appro- priate regulations governing the dissemination of intelligence data. could in themselves serve as a basis for iniunctive relief, apart from eras an alternative to the statutory proviSion for injunctions against the criminal act of exposure; Some such steps are necessary if we are to overcome the short- comings in laws protecting intelligence information which limit prose- cution to cases where intent is" clear and where divulging information - inope?n court ls'not den?intentnl. 73 OFFICIAL use ONLY

Case Document 45 Filed 07/20/17 Page 50 of 66 Tab

FAQS Aliil?te?iowzom Page 51 01%? 1 0f 10 ?ilanll?c Did Putin Direct Russian Hacking? And Other Big Questions Did Moscow influence the US. election? Who else has been hacked? Could the CIA be wrong? Gary amrn i Reuters KATHY GILSINAN AND CALAMUR JAN 6, 2017 GLOBAL Like The Atlantic? Subscribe to The Atlantic Daily, our free weekday email newsletter. international/ archive/ 20 1 7/0 1 0689/ 7/ 1 9/20 1 7

FAQS A??a?cowzom Page 52 ofp??e 2 0f 10 Email SIGN up Updated on January 7, 2017 In a ?declassified version of a highly classified assessment? released on Friday January 6,the U.S. intelligence community laid out its judgment that ?Vladimir Putin ordered an in?uence campaign in 20 16 aimed at the US presidential election,? with the specific goal of harming Hillary Clinton?s ?electability and potential presidency.? The report went on: ?We further assess Putin and the Russian Government developed a clear preference for President?elect Trump.? These conclusions had previously been reported, based accounts anonymous intelligence officials gave to various news outlets. The January 6 intelligence assessment was the first time the Office of the Director of National Intelligence had detailed them officially in public. The release came a day after Senator John McCain, the Arizona Republican who chairs the Senate Armed Services Committee, said at a hearing on foreign cyberthreats to the United States: ?Every American should be alarmed by Russia?s attacks on our nation.? (Our blog of the hearing is here.) President?elect Donald Trump has been publicly skeptical of claims about Russia?s role. He says it?s difficult to definitively say who was behind the hacking, and has supported the views of Julian Assange, the WikiLeaks founder, that a ?14?year?old could have hacked? Democratic officials. After reviewing a classified version of the assessment made public on Friday, Trump issued a statement citing the cyber threat from ?Russia, China, other countries, outside groups and people,? but emphasizing that the hacking had ?absolutely no effect on the outcome of the election.? 7/19/2017

FAQS Page 53 ofP?'ge 3 0f 10 Last month McCain told Ukrainian TV Russia's actions were ?an act of war.? He repeated those comments Thursday, but added: It ?doesn?t mean you go to war and start shooting.? Who is involved? The intelligence-community assessment provides official backing to media reports from mid-December stating that that Russian President Vladimir Putin was ?personally involved? in cyberattacks aimed at interfering with the United States presidential election. In an interview with NPR on December 15, U.S. President Barack Obama vowed that the U.S. would take action in response, ?at a time and place of our own choosing.? He went on: ?Mr. Putin is well aware of my feelings about this, because I spoke to him directly about it.? On December 2 9, he did more than speak: He sanctioned the'two Russian intelligence services believed to be involved in the hacks (Russian military intelligence, the GRU, and the successor the FSB, which is responsible for counterintelligence and internal security). He also expelled 3 5 Russian officials in the U.S. believed to be intelligence agents. After Russian Foreign Minister Sergei Lavrov threatened to retaliate, Putin declined to do so. Didn?t we already know about Russia hacking the Democratic National Committee and others? Why all the fuss? The assessment purports to add on?the-record detail on both actors and intent. Prior to mid-December, Putin personally had not been blamed for hacks resulting in leaks damaging to the Clinton campaign, though in October Director of National Intelligence James Clapper stopped just short of doing so, saying that ?based on the scope and sensitivity of these efforts only Russia?s senior-most officials could have authorized these activities.? Secondly, separate intelligence leaks to The New York Times ://Ww.theatlantic.com/ international/ archive/ 20 1 0689/ 7/1 9/20 1 7

FAQS on 513%? i??lii?bbd?i?d?m?mdhe?mhi? Page 54 011,836 4 0f 10 and The Washington Post on December 9 for the first time claimed that the intent of the hacking was to sway the election in favor of Trump, rather than simply sow generalized distrust. It has not yet been suggested that cyberattacks managed to change the actual vote tally in favor of either presidential candidate. This is now the official position of the intelligence community. Information on what exactly happened has been dripping out slowly, and often anonymously and unofficially, for months. way back in mid-June, the Democratic National Committee reported an intrusion into its computer network, and the cybersecurity firm publicly blamed Russian hackers after analyzing the breach. In July, after emails stolen from the committee appeared on WikiLeaks, Democratic members of congress also blamed the Russians, with Clinton campaign manager Robby Mook alleging that ?It was the Russians who perpetrated this leak for the purpose of helping Donald Trump and hurting Hillary Clinton.? It wasn?t until September that anonymous federal officials confirmed to The New York Times the intelligence community?s ?high confidence? of Russian government involvement in the hack, if not the subsequent leak, and leaving doubt as to whether the hacks were ?routine cyberespionage? or actually intended to in?uence the election. And it wasn?t until October that the Director of National Intelligence, James Clapper, went on the record to blame Russia?government actors, not, say, cybercriminals who happened to be Russian, ?based on the scope and sensitivity of these efforts,? and further declaring that they were ?intended to interfere with the U.S. election process.? Days later, emails stolen from Clinton campaign chairman John Podesta appeared on WikiLeaks. So as of fall, the United States government had officially blamed Russia for the hacks, and stated that the hacks were intended to interfere with the ://Ww.theatlantic.com/ intemational/archive/ 201 7/ 0 1 /russian?hacking-trump/ 5 1 0689/ 7/1 9/20 1 7

FAQS Page 55 5 0f 10 American election. Until December 9, intelligence officials were not claiming that the Russians wanted specifically to help Trump win, as opposed to undermining faith in the overall process. Then The Washington Post disclosed a ?secret CIA assessment??again described by anonymous officials?declaring it ?quite clear? that a Trump presidency was the ultimate goal of the hacks. A Times investigation published a few days later provided more background on how the hacks actually worked. Congress is planning to investigate. Who else has been hacked? Thomas Rid, writing in Esquire in October, noted that Russia began hacking the U.S. as early as 1996, five years after the demise of the Soviet Union, and added that the DNC hack concealed an even bigger prize for the Russians: the National Security Agency, whose secret files were dumped this August on Github and other file?sharing sites. Then there is Germany. In May, Germany?s domestic intelligence agency, said hackers linked to the Russian government had targeted Chancellor Angela Merkel?s Christian Democratic Union party, as well as German state computers. In September, Arne Schoenbohm, who heads Germany?s Federal Office for Information Security (BSI), briefed German lawmakers about Russian hacking. Schoenbohm told Sudduetsche Zeitimg, after reports emerged in the U.S. of the hacking of the Democratic National Committee, that [g]iven the background of the American situation, I have to protect our political parties from spying.? Those warnings became more urgent after the U.S. presidential election. Bruno Kahl, the head of the Germany?s foreign intelligence service, told the newspaper last month that Russia could seek to disrupt Germany?s elections next year to create ?political uncertainty.? Merkel, who is seeking a fourth term in those elections, said in November after an attack ://Wrw.theatlantic.com/ international/ archive/ 201 7/ 0 /russian?hacking-trump/ 5 0689/ 7/1 9/20 1 7

FAQS 011851331811; Page 56 6 0f ?0 targeted Deutsche Telekom customers that ?[s]uch cyber attacks, or hybrid con?icts as they are known in Russian doctrine, are now part of daily life and we must learn to cope with them.? Suspected Russian hacking has targeted other countries, as well. In April 2007, websites and servers belonging to the government, banks, and media in the former Soviet republic of Estonia came under a sustained monthlong attack. A US. diplomatic cable, published in WikiLeaks, called the Baltic state an ?unprecedented victim of the world's first cyber attacks against a nation state.? Similar attacks targeted the former Soviet republic of Georgia a year later, and Ukraine more recently. All three countries. have pro?Western leaders that are deeply critical of what they see as Russia?s turn toward authoritarianism under President Vladimir Putin. And prior to perhaps their most high?value target thus far, the DNC, Russian hackers allegedly targeted the World Anti-Doping Agency ahead of the Rio Olympics this summer. WADA had reported a widespread Russian state-run doping program that involved the country?s track-and- field program. That revelation resulted in the Russian track-and-field team being banned from the games. WADA was hacked in apparent response, and the personal information of several athletes, including the Russian whistleblower who alerted WADA to the scandal, was leaked online. It?s worth pointing out that the Russian government has dismissed claims that it is involved. What does ?hacking? actually entail? It depends: Hackers believed to be from Russia have accessed computers and servers belonging to government and political parties in rival countries. In some cases, such as in the DNC or WADA hack, those hacks resulted in the leak of information on websites such as WikiLeaks. In other international/ archive/ 201 7/0 1 /russian-hacking-trump/5 0689/ 7/ 1 9/201 7

FAQS 0? 53333311: Reggae-nits Page 57 ofp??e 7 0f 10 cases, the attacks focused on national infrastructure: In Ukraine, for instance, according to Wired, hackers targeted the power grid; they then attacked the telephone service so customers couldn?t call to report the outages. When they hit the NSA, hackers posted the agency?s ?cyber? weapons? to file-sharing sites, according to Esquire. The hackers don?t just target states and institutions. Frequently, individuals are caught up, as well. On December 9, the Times reported that suspected Russian hackers targeted critics of the country?s government who live overseas by posting child porn on their computers. How solid is the intelligence community?s case that Russia tried to tilt the election for Trump? The Washington Post has cited ?the United States? long?standing struggle to collect reliable intelligence on President Vladimir Putin and those closest to him.? Since the end of the Cold War and especially since 9/11, American intelligence agencies have deprioritized Russia. The Post reported in fall, citing US. officials, that the and other agencies now devote at most 10 percent of their budgets to Russia-related espionage, a percentage that has risen over the past two years,? but is still dwarfed by the Cold War peak of about 40 percent. As for the actual evidence of intent, what?s publicly available remains circumstantial, including Russian state TV ?3 pushing of Trump?s candidacy, and reports that the Republican National Committee, too, was hacked though suffered none of the same embarrassing leaks as the DNC. (The RNC has denied it was hacked; The Wall Street journal reports, citing ?officials who have been briefed on the attempted intrusion,? that the effort was thwarted by the cybersecurity systems.) All of this was occurring in an international political context in which Trump was one of the most pro-Russian presidential candid ates in recent memory, while international/ archive/ 20 1 7/0 l/russian-hacking-trump/S 1 0689/ 7/1 9/20 1 7

FAQS on Bass?? ill? %1i1%81?d 07/20/17 Page 58 ofp?ige 8 0f 10 Vladimir Putin personally blamed Hillary Clinton for inciting protests against his rule when she was secretary of state. In tandem with Obama?s announcement of sanctions against Russia on December 29, the Department of Homeland Security and the FBI released a joint report on ?Russian malicious cyber activity? during the U.S. election. That report, however, was short on specific evidence; moreover, The New York Times noted, it ?included a long list of malware it said was evidence of Russian hacking, when some of the malware is used by non- Russian attackers.? Meanwhile, the denials. Some of Trump?s surrogates have publicly suggested that Russia is the victim of a false-?ag operation planned by U.S. intelligence?an assertion that doesn?t appear to be based on any fact in the public realm. Russian officials themselves have rejected the idea they are involved, as have Russian cybersecurity experts, one of whom dismissed it as ?a classic stereotype of the nineties and early 20005.? They say that it?s virtually impossible to trace the origin of a hack. For his part, the president-elect tweeted the claim of WikiLeaks founder Julian Assange that, in Trump?s words, ?the Russians did not give him the info!? and that ?a 14 year old could have hacked Podesta. As Kaveh Waddell explained in TheAt/antic, while it can be difficult to catch the culprit of a hack, it?s by no means impossible. Esquire, in its story, noted that sloppy errors committed by the hackers pointed U.S. intelligence to their whereabouts. Andrei Soldatov, who wrote Red Web, told The Telegraph the Russian government is using its computer industry to hack its targets. ?We have maybe the biggest engineer community in the world, and lots of great specialists,? he told the newspaper. ?They are not criminals, they are professionals?and they are not bothered or afraid to refuse requests from government agencies.? international/ archive/ 20 1 7/ 0 1 /russian?hacking-trump/ 5 1 0689/ 7/1 9/20 1 7

FAQS on?algseiaf Page 59 01123136 9 0f 10 But Trump says we shouldn?t trust the CIA because they were wrong about Iraq?s WMD. Shouldn?t we take that history into consideration? ?There's a big difference between Iraq WMD and Russian cyber hacking,? wrote Amy Zegart, an intelligence expert at Stanford, in an email. ?For starters, we're talking about different people making the assessments, a different problem to unravel (hidden nuclear capabilities in a foreign country versus cyber attacks on US systems), and a different analysis process. Intelligence analysis was thoroughly revamped after Iraq, as it should have been. But saying that these are same people who brought us Iraq WMD is like saying this year's Golden State Warriors must be terrible, because the Warriors lost so many games in the 905. Which isn?t to say that past intelligence failures writ large have no relevance to today. The relevance is: Intelligence sometimes fails. As Zegart notes: ?The best experts didn't predict Trump's win, and that's Americans predicting what Americans will do in an open society with frequent polling. In intelligence, adversaries are working hard and spending billions to hide their activities and deceive us.? Kenneth Pollack, a former CIA analyst and Clinton National Security Council staffer who argued for invading Iraq in 2003, said in an interview that Saddam Hussein did a ?totally insane? version of this: ?Saddam?s whole thinking was, ?I?m going to get rid of my weapons of mass destruction, basically after 199 5, but I can?t tell my people that. I want my people to continue to fear me, and believe that I have this.? The US, and the rest of the world, frankly all picks up on the fact that that he is putting it out to all of his people that, ?Yeah I still have And that strikes me as a really fundamental difference.? 7/19/2017

FAQS Page 60 cl?fa?? 10 Of 10 He continued: ?The intelligence community certainly can be wrong about these kinds of things, and you do want to take everything with a certain amount of skepticism. That said, it seems like in this case, they?ve found the tracks?that?s kind of the nice thing about cyber, as best as I understand it, is you can actually go back and see the keystrokes which was not something that we had in Iraq.? Doyou have any lingering questions about Russian hacking? Please let us know and we ?ll try to answer them: [email protected] ABOUT THE AUTHORS KATHY GILSINAN is a senior editor at The Atlantic, where she oversees the Global section. I yTwitter MEmail KRISHNADEV CALAMUR is a senior editor at The Atlantic, where he oversees news coverage. He is a former editor and reporter at NPR and the author of Murder in Mumbai. 9' Twitter 7/19/2017

Case Document 45 Filed 07/20/17 Page 61 of 66 Tab

Case Document 45 Filed 07/20/17 Page 62 of 66 Case Document 38 Filed 02/11/11 Page 1 of 12 PaoelD# 240 Elli IN THE UNITED STATES DISTRICT COURT FOR THE CLERK US 0,573.6, COURT ALEXANDRIA. VIRGINIA EASTERN DISTRICT OF VIRGINIA Alexandria Division UNITED STATES OF AMERICA. v. NO. (LMB) JEFFREY ALEXANDER STERLING, Defendant. PROTECTIVE ORDER REGARDING CLASSIFIED INFORMATION This matter had come before the Court upon the Motion for Protective Order Under Section 3 of the Classified Information Procedures Act to prevent the unauthorized disclosure or dissemination of classi?ed national security information and documents which will be reviewed or made available to the defendant and his counsel by the government during the prosecution of this case. Pursuant to the authority granted under Section 3 of the Classi?ed Information Procedures Act, 18 U.S.C. App. 3 (2006) the Security Procedures Established Pursuant to CIPA by the Chief Justice-of the United States for the Protection of Classi?ed Information (reprinted following CIPA section 9), Rules 16(d) and 57 of the Federal Rules of Criminal Procedure, and the general supervisory authority of the Court, and in order to protect the national security, the following Protective Order is entered: l. The Court ?nds that this case will involve information that has been classi?ed in- the interest of the national security. The storage, handling and control of this information will require special security precautions mandated by statute, executive order, and regulation, and access to which requires the appropriate security clearances. The purpose of this Order is to

Case Document 45 Filed 07/20/17 Page 63 of 66 Case Document 38 Filed 02/11/11 Page 4 of 12 PagelD# 243 S. In accordance with the provisions of CIPA and the security procedures promulgated by the Chief Justice of the United States pursuant to that Act, this Court designates Christine Gunning as the Classi?ed Information Security Of?cer and Jennifer Campbell, .- Win?eld Slade, Maura Peterson, and Joan Kennedy as alternate Classi?ed Information Security Of?cers for this case for the purpose of providing security arrangements necessary to protect any classi?ed information or documents that will be made available to the defense in connection with this case or that may be in the possession of the defense as a result of the defendant?s prior relationship with the government. Defense counsel shall seek guidance from the Classi?ed Information Security Of?cer with regard to appropriate storage, handling, transmittal, and use of all classi?ed information. 6. The Court has been advised that the Department of Justice Attorneys assigned to this case, William M. Welch ll, Timothy J. Kelly, and James L. Trump, as well as Legal Administrative Specialist Gerard Francisco and Intelligence Specialist Pam Benson, have the requisite security clearances allowing them to have access to the classi?ed documents and information that relate to this case (hereinafter ?govermnent attorneys"). Any references to government attorneys as used in this Order refer only to the attorneys listed in this paragraph. Any other Department of Justice attorneys who may in the future be designated to participate in the litigation of any part of this matter (or supervise such litigation) will have security clearances at the level of classi?cation of any documents or information reviewed. 7. The defendant?s counsel, Edward B. MacMahon, Jr., James H. Holt, and Barry J. Pollack, shall be given access to classi?ed national security documents and information as required by the government?s discovery obligations and in accordance with the terms of this

Case Document 45 Filed 07/20/17 Page 64 of 66 Case Document 38 Filed OZ/llill Page 5 of 12 Page D# 244 Protective Order, the requirements of CIPA, the Memorandum of Understanding described below, and any other orders issued pursuant to CIPA, and upon receipt of appropriate security clearances. Defendant Jeffrey Alexander Sterling (hereinafter ?the defendant) will also be given access to national security documents and information as required by government discovery obligations and in accordance with the terms of this Protective Order, the requirements of CIPA, the Memorandum of Understanding described below, and any other orders issued pursuant to CIPA. To date, defense counsel and the defendant will be given access to the same classi?ed information except that the defendant will not be granted access to the technical documents underlying Classi?ed Program No. at this time. 8. As set forth in the Government's Motion for Protective Order, the defendant has a continuing contractual obligation to the government not to disclose to any unauthorized person classi?ed information known to him or in his possession. The government is entitled to enforce its agreement to maintain the con?dentiality of classi?ed information. Notwithstanding that agreement, because the allegations ofthis case involve a breach of that non?disclosure obligation, the defendant must Sign a separate Memorandum of Understanding. Consequently, pursuant to federal common law, the ordinary principles of contract law, and the contempt powers of this Court, the defendant shall fully comply with his nondisclosure agreements and shall not disclose any classi?ed information to any unauthorized person unless authorized to do so by this Court. reviewed. 9. Any additional persons whose assistance the defense reasonably requires may only have access to classi?ed information in this case after ?rst obtaining from this Court, with prior notice of the identity of those additional persons to the government attorneys, an approval

Case Document 45 Filed 07/20/17 Page 65 of 66 Case Document 38 Filed 02/11/11 Page 12 of 12 Page D# 251 assisting the defense, to have access to classi?ed information. at: Entered in Alexandria, Virginia, this 10?163}: of February, 2011. iconic Erinke?ina' United States District Judge -14-

Case Document 45 Filed 07/20/17 Page 66 of 66 CERTIFICATE OF SERVICE I hereby certify that I have this day served a copy of the foregoing MOTION AND BRIEF IN OPPOSITION TO THE MOTION FOR A PROTECTIVE ORDER, by using the system which will automatically send noti?cation of such ?ling to the following: James D. Durham, Esquire Acting US Attorney Jennifer G. Solari, Esquire Assistant US Attorney Southern District of Georgia PO Box 8970 Savarmah, GA 31401 Julie A. Edelstein, Esquire David C. Aaron, Esquire US Department of Justice National Security Division This 20th day of July, 2017 s/ John C. Bell, Jr. John C. Bell, Jr. COUNSEL FOR DEFENDANT