Federal magistrate judge Brian Epps once again denied bail to alleged NSA leaker Reality Winner. This time, Epps contended Winner’s “hate” for America and supposed admiration of NSA whistleblower Edward Snowden and WikiLeaks editor-in-chief Julian Assange make her a dangerous threat.
Winner is accused of “removing classified material from a government facility and mailing it to a news outlet.” She allegedly mailed a classified document on Russian hacking to the Intercept and is in pretrial detention awaiting a trial that is currently scheduled for March.
“By her own words and actions, defendant has painted a disturbing self-portrait of an American with years of national service and access to classified information, who hates the United States and desires to damage national security on the same scale as Julian Assange and Edward Snowden,” Epps wrote in an order [PDF]. “The nature and seriousness of the danger she poses to our nation is high.”
Her efforts to develop “stealth internet capabilities” strongly suggest “defendant was planning to leak classified information from the outset of her NSA employment while all the while swearing allegiance to the United States and promising to safeguard its national secrets.”
Epps further contended there were no “combination of conditions” that could “assure the safety of the community” because she presents an “ongoing risk to national security.” He suggested there remains a “potential for additional disclosures given her access to a wealth of classified information during her service in the Air Force and with NSA.”
“I am truly heartbroken and crushed. I am disappointed in the court’s decision and believe it is unfair. Her service to the country, and every community she has ever lived in, should have been weighted,” Billie Davis-Winner, Winner’s mother, said.
Her stepfather, Gary Davis, reacted, “A great miscarriage of justice has taken place today. Justice is supposed to be based on proof and evidence not unsubstantiated innuendo, fabrication, and misrepresentation of selected snippets of conversations taken out of context.”
Assistant U.S. Attorney Jennifer Solari was previously caught lying to Epps about jailhouse phone calls, which highly influenced this order. Solari claimed Winner said “documents” on a call and that indicated she gathered more than the report she is accused of leaking. But on June 29, Solari emailed Winner’s attorneys to say Winner only referred to a singular “leaked document” when talking to her mother.
Epps claimed that he considered Winner’s “service in the Air Force, clean criminal history, and loving/committed parents,” as positives weighing in favor of release from pretrial detention. However, he focused on text messages, jailhouse calls, and the interview FBI agents conducted when they executed a search warrant to harshly characterize her as a traitor.
“Based on compelling evidence presented by the government, the defendant admittedly ‘hates’ America, misused a top-secret computer during her Air Force career, admires Edward Snowden and Julian Assange, and began preparations to leak classified information from the very outset of her work as an NSA subcontractor.”
The argument that Winner “hates” America depends upon one singular text exchange that was not reproduced in the court order. The exchange is not explicitly quoted so it is hard to tell if this was language Winner used when sharing her frustration on a recent political development or perhaps something President Donald Trump said.
According to Epps, “On February 25, 2017, during training for her new NSA job, defendant wrote her sister that she would fail a polygraph because of questions concerning whether she had ever plotted against the United States government. On the same day, defendant wrote her sister she hated America. When her sister responded with incredulity, defendant proclaimed again she hated America and explained she feels this way because America is ‘literally the worst thing to happen to the planet.'”
Notably, Epps does not quote any emails or messages, where she specifically says she hates America. It seems far more likely—given what is known about Winner—that she meant she would fail a lie detector test because she has complex attitudes about the role of the United States in the world.
In fact, the FBI agents who interrogated Winner suspected that she allegedly leaked the document because she was “angry over everything that’s going on, politics-wise.” Special Agent Justin Garrick said, “You can’t turn on the TV without getting pissed.” Would Epps read that comment and say he “hates” America?
“On February 9, 2017, defendant messaged her sister through Facebook it was ‘hard not to laugh’ when an NSA security officer emphasized during training the enormity of the security threat posed by insiders such as Edward Snowden,” Epps added. “On March 7, 2017, in Facebook messages with her sister, defendant lauded a recent WikiLeaks cache of classified information as ‘awesome’ because it ‘crippled’ a government program, and explained to her sister she is on the side of Assange and Snowden.”
Again, the full messages are not quoted. The order merely includes cherry-picked words that advance the government’s interest in demonizing Winner as a disloyal American so she remains in jail.
Pew Research Center found in 2014 that most young Americans believe Snowden “served” the “public interest.” That makes Winner’s attitude toward Snowden fairly typical, since she is 25 years-old, something Epps entirely ignored.
Winner was stationed at Fort Meade. On her last day, November 9, 2016, she inserted a thumb drive in a computer with access to classified information. She told FBI agents this was to see if it could be done without being detected. She wondered how personnel were getting “unclassified pictures onto the high side.” An administrative notice popped up and so she threw her thumb drive away.
The government has taken this admission in her interview and manipulated it into the following: “The government has been unable to determine why defendant inserted the thumb drive, whether she saved anything to the thumb drive, or where the thumb drive is located today.”
Epps relied on this fabrication and speculation to justify keeping Winner in jail.
Even though the government has her passport, Epps wildly argues “this obstacle provides little assurance given her self-described desire to ‘burn the White House down’ and ‘[f]ind somewhere in Kurdistan to live…or Nepal.'” When she suggested that and why is not stated and how that “desire” would magically grant her the ability to flee the country before trial is unclear as well.
But the judge believes Winner would be able to create a “covert communications package,” as the FBI describes it, because she researched how to anonymously send information to news outlets, setup anonymous email, and unlock her cell phone for use anonymously. He says nothing about imposing heavy restrictions on communications and use of technology.
The support group, Stand With Reality, condemned the decision.
“This is the opening salvo in the new war on whistleblowers and sets an extremely dangerous precedent,” explained government transparency advocate Rainey Reitman, who is affiliated with the support group. “By this logic, anyone who has ever held a security clearance and disagrees with the U.S. government is a danger to society and should be in jail. But where does this end? Should Winner be in prison for life because of opinions and information she has in her head?”
Winner’s defense referenced the cases of Bryan Nishimura, a former Navy reservist who transported classified material from a base in Afghanistan to his home; David Petraeus, a former CIA director who improperly handled and disclosed classified information to his biographer with whom he was having an affair; Sandy Berger, a former Clinton national security adviser who removed classified information from the National Archives without authorization; and Shamai Leibowitz, a former FBI linguist who was prosecuted for showing classified information to a journalist on what he described as illegal and constitutional acts.
In those cases, there was a measure of leniency and discretion on the part of prosecutors, but Epps dismissed comparisons because Nishimura and Petraeus were only charged with misdemeanors and Berger and Leibowitz had plea agreements.
Winner was open to the court restricting her to Richmond County, Georgia, and her home in Augusta until trial. Her parents were willing to post property as bond so she could teach yoga and spin classes and also volunteer at an animal shelter. But now she is most likely to remain jailed until her trial.