The defense for Reality Winner, a National Security Agency contractor accused of mailing a classified document on Russian hacking to The Intercept, contends the government misstates the law under the Espionage Act. They believe the government ignores “serious constitutional problems” raised by their interpretation of the statute.

But Winner’s defense faces a tremendous uphill struggle. Under President Barack Obama’s administration, leak prosecutions intensified the government’s ability to wield the Espionage Act as a strict liability offense, which means there is very little the government has to prove beyond the fact that an unauthorized disclosure took place.

Winner is scheduled to go on trial on March 19, in Augusta, Georgia. Since her arrest in June, she has been held in pretrial detention, with Judge Brian Epps refusing to grant her bail.

Epps suggested Winner’s “hate” for America and supposed admiration for NSA whistleblower Edward Snowden and WikiLeaks editor-in-chief Julian Assange makes her an ongoing threat to “national security.”

Like previous defense efforts to challenge leak prosecutions, Winner’s defense has challenged the manner in which the government is attempting to use the Espionage Act. They contend the government would like a federal court to “ignore forty years of precedent” and prior cases, where the government agreed “potential damage to the United States is an element of the offense.”

Winner is accused of violating the 793(e) provision of the Espionage Act, which is as follows:

…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…

The defense contends that under the government’s “expansive” reading of this provision it would “encompass any disclosure of any closely held document ‘related to the national defense,’ whatever that may mean.” Such an interpretation would make the statute “unconstitutionally overbroad, vague, and in violation of the First Amendment.”

In response, the government maintains it does not have to prove “other elements of the crime exist,” such as whether Winner intended to injure the United States.

Prosecutors insist all they must show is that Winner had “unauthorized possession” of a document, that the document “related to national defense,” and that she “willfully communicated, delivered, or transmitted the document to a person not entitled to receive it.” They do not have to show the “disclosure of the classified intelligence reporting could threaten,” or did threaten, “national security.”

Burden Of Proof In Espionage Act Prosecutions

Stephen Kim, a former State Department employee, was sentenced to 13 months in prison for disclosing information to a Fox News reporter on what the U.S. knew about North Korea’s nuclear program. Kim pled guilty to violating the Espionage Act.

The case is remarkable because the burden of proof for proving a violation of the Espionage Act was lowered by Judge Colleen Kollar-Kotelly, who ruled the government did not have to prove the information disclosed could damage U.S. national security or provide advantage to a foreign power.

Kollar-Kotelly argued in an opinion that prosecutors would be justified in abandoning the approach incorporated in the trial of Samuel Morison, a Navy civilian analyst who leaked photographs of Soviet ships to Jane’s Defence Weekly to alert Americans to what he perceived as a new threat.

“In cases like this which involve the alleged unauthorized disclosure of classified information, the Morison approach invites (if not requires) the jury to second guess the classification of the information,” Kollar-Kotelly wrote. She suggested it would produce an “absurdity,” where a person on trial for an unauthorized disclosure could convert their trial into one of the “classifying party.”

According to Secrecy News, Kim’s defense argued the Espionage Act would transform into an Official Secrets Act, “enabling the government to punish disclosure of anything that was designated classified, even if it was improperly classified,” if this interpretation were allowed. “They cited a concurring opinion in the Morison case stating that its interpretation of the law was necessary ‘to avoid converting the Espionage Act into the simple Government Secrets Act, which Congress has refused to enact.’”

Kim tried to persuade the judge that, as argued, the Espionage Act provision was unconstitutionally vague “as applied” to his conduct and violated the Fifth Amendment right to due process. However, the court noted the Supreme Court had concluded there is no “uncertainty” in the statute, and the government does not have to demonstrate “subversive intent” to uphold due process.

The government seized upon the Kim case to aid its prosecution of Winner. They argue the “plain language” of the Espionage Act does not require that the government demonstrate “alleged classified intelligence reporting could threaten the national security of the United States if disclosed.” They note Kollar-Kotelly explicitly said the “government need not provide such proof.”

Although Kim was charged under a different provision of the Espionage Act, the language—”related to national defense information”—is identical to the language in the provision that Winner is charged with violating.

Following the ruling in Kim’s case, military prosecutors asked Army Col. Denise Lind, who oversaw the court martial against Chelsea Manning, to consider the D.C. circuit court’s interpretation in her ruling. Manning was charged with several Espionage Act-related offenses.

Lind did not adopt the lesser standard in her rationale, which outlined how she found Manning guilty of violating the Espionage Act. She found the information produced was “closely held” by the U.S. government, and Pfc. Manning had “reason to believe the information could be used to the injury of the United States or to the advantage of any foreign nation.”

“Something Very Much Like A British Official Secrets Act”

The Morison case is a highly influential case when it comes to Espionage Act prosecutions. It was one of the first cases where the Justice Department attempted to use the law to criminalize leaks, even though it was never specifically intended to be used against leakers.

New York Times columnist Anthony Lewis wrote in 1985 that Ronald Reagan’s presidential administration used the Morison case “to try to turn the Espionage Act into something the United States has never had: a criminal statute against leaks. And by persuading the trial judge and then the jury, it did create something very much like the British Official Secrets Act.”

Morison, according to Lewis, leaked “three photographs taken from a US satellite, of a Soviet aircraft carrier under construction. He sent them to Jane’s Defense Weekly, a British military magazine. He was not paid. He did it, he said, because the carrier was a significant new element in the Soviet fleet—and publication would alert Americans to the threats.” And, for that, he was convicted on October 17, 1985, of two violations of the Espionage Act (as well as two counts of theft of government property).

In the U.S. District Court of Maryland, Morison’s defense attempted to challenge the government’s novel use of the Espionage Act by arguing the provisions he was charged with violating were “unconstitutionally vague and overbroad” and that the law was “intended to punish only ‘espionage’ in the classic sense of divulging information to agents of a hostile foreign government and not to punish the ‘leaking’ of classified information to the press.”

But the government countered: If a defendant, like Morison, “willfully transmits photographs relating to the national defense to someone who is known by the defendant not to be entitled to receive it,” then the defendant has violated the Espionage Act “no matter how laudable his motives.”

Judge Joseph Young found this to be legitimate.

Remarkably, Young articulated an “aiding the enemy” argument similar to the one that military prosecutors employed against Manning.

“The danger to the United States is just as great when this information is released to the press as when it is released to an agent of a foreign government,” Young declared. “The fear in releasing this type of information is that it gives other nations information concerning the intelligence gathering capabilities of the United States. That fear is realized whether the information is released to the world at large or whether it is released only to specific spies.”

Nevertheless, the court in Morison’s case adopted a requirement that prosecutors prove materials constituted “national defense information” by demonstrating disclosure of the material would potentially damage the United States or might be useful to an enemy of the United States.

If the government has its way, it will prosecute Winner without proving anything about the report that Winner allegedly disclosed.

Barring Whistleblower Arguments

The government’s interpretation of the Espionage Act is but one aspect of its effort to ensure individuals accused of unauthorized disclosures are not allowed to present whistleblower motives in court.

CIA officer Jeffrey Sterling, who is African American, was convicted of violating the Espionage Act and sentenced to 42 months in prison. He stood up to the CIA and pursued a racial discrimination lawsuit against the agency in 2002. It was dismissed after the government invoked the “state secrets privilege” when it was before the Supreme Court in 2005. He later informed the Senate Intelligence Committee that he had knowledge of waste, fraud, abuse, and illegality related to “Operation Merlin”–a botched operation which involved passing flawed nuclear blueprints to the Iranians

In 2011, before trial, the government moved to bar any arguments that “leaks are good or necessary or that he was a whistleblower, thereby justifying his conduct or negating his criminal intent.”

The government engaged in a similar effort against NSA employee Thomas Drake, who blew the whistle on fraud, waste, abuse, and illegality at the NSA, including what the government should have known prior to the 9/11 attacks.

The government charged Drake with improperly retaining classified information in violation of the Espionage Act. Although the case against him eventually collapsed, prosecutors moved the court to bar the introduction of “evidence, examination of witnesses, or argument by counsel regarding the defendant’s perceived need or justification to expose waste and abuse at the National Security Agency or regarding the merits or substance of any claims of waste and abuse at NSA.”

“The defendant’s motive for his conduct is irrelevant,” the government insisted.

If the court ultimately declines to suppress statements Winner made, the government will anticipate a potential whistleblower defense by Winner. It will swiftly move to foreclose any ability for Winner to talk about motives before a jury because the government believes it should be able to guard secrets by simply proving a person made an unauthorized disclosure. And so far, courts favor the government’s arguments against allowing whether information was properly or in the public interest to be argued in open court, which makes mounting a defense extremely difficult.