A federal appeals court denied NSA whistleblower Reality Winner’s request to reconsider an order to keep her in jail before trial.
Remarkably, the United States District Court for the Southern District of Georgia agreed with a federal magistrate judge that Winner “hates” America and might try to flee if bail was granted.
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.
“I am beyond heartbroken,” Winner’s mother Billie Davis-Winner stated. “The trial, originally scheduled in October 2017 and then reset to March 2018, will once again be reset to a much later date, but as of now we do not have a new setting. There is so much going on with the evidence and discovery, and there are a few active appeals not yet ruled on. It’s gonna be a long journey.”
Friends of Reality Winner, the support group raising awareness about Winner’s case, said they were “extremely disappointed,” with the 11th Circuit appeals court for upholding her “indefinite imprisonment.”
Appeals court judges seized upon multiple statements made before the alleged disclosure, taking them out of context to support their decision.
Winner wrote, “I want to burn the [W]hite [H]ouse down. Find somewhere in Kurdistan to live… or Nepal. Ha, ha, maybe.”
“I have to take a polygraph where they’re going to ask if I’ve ever plotted against the government. #gonna fail…Look, I only say I hate America like three times a day. I’m no radical. It’s mostly just about Americans’ obsession with air conditioning,” Winner remarked to her sister.
“When her sister asked her whether she actually “hate[d] America,” Winner replied, “I mean, yeah, I do. It’s literally the worst thing to happen to the planet. We invented capitalism, the downfall of the environment,” the appeals court noted.
The appeals court also put emphasis on the fact that she suggested she was on the side of WikiLeaks editor-in-chief Julian Assange and NSA whistleblower Edward Snowden, “who had previously leaked or disclosed classified government documents.”
Like federal magistrate judge Brian Epps, the appeals court found that these comments and messages outweighed all positive characteristics — service in the Air Force, work for the Peace Corps or Doctors Without Borders, “strong family ties,” and lack of a prior criminal record.
The comments about “hating” America came when she joked with her sister about possibly failing a polygraph because she had to answer whether she plotted against the U.S. government. Also, given the “ha ha,” it seems extremely likely she was joking about burning the White House down, and it was an expression of political frustration with no intent to commit violence.
Unfortunately for Winner, the appeals court chose to view her words in the worst light possible.
“Ms. Winner characterized these statements as mere hyperbole and suggested that they reflect the weird sense of humor she shares with her sister. But that is not the only possible reading of her words,” the appeals court contended. “The statements, if viewed in a different light, suggest that Ms. Winner may have a reason to flee, as she does not have any confidence in the government which has accused her of serious criminal conduct.”
The appeals court added, “The district court therefore did not commit clear error in its interpretation of the evidence concerning Ms. Winner’s statements.”
Appeals court judges suggested Winner may try to flee to the Middle East if she was granted bail:
Evidence in the record indicates that Ms. Winner—who is fluent in Farsi, Dari, and Pashto—has long wanted to live and work in the Middle East. She wanted the Air Force to deploy her to Afghanistan; she researched traveling, working, and living in places like Kurdistan, Iraq, Afghanistan, Jordan, and the Palestinian territories; she researched flights to Kurdistan and Erbil; she researched buying a home in Jordan; and she researched how to obtain a work visa in Afghanistan.
There is, of course, nothing inherently problematic about any of these things, but when they are viewed together and added to the mosaic they provide an additional reason or motivation for Ms. Winner to not remain in the United States to stand trial. Her demonstrated interest in living and working in the Middle East and the $30,000 in her bank account makes travel there, under the circumstances, more than a flight of fancy.
Again, the appeals court took completely benign aspects of her life and construed those aspects in the worst possible manner to back the government’s desire to keep her in pretrial confinement.
The appeals court judges apparently think Winner is capable of super spy feats. They did not think an ankle bracelet, surrendering her passport, and having her parents post their home as collateral for bond would ensure she appeared at trial.
“The use of a bracelet, the surrendering of a passport, and the posting of collateral are not foolproof—persons who wish to flee can destroy or disable the bracelet and travel clandestinely without a passport, even if collateral for the bond is forfeited—so the question ultimately comes down to one of confidence about the likelihood that Ms. Winner will appear for future proceedings.”
Ultimately, the appeals court judges did not believe it is likely she would appear at trial because she is accused of violating the Espionage Act by leaking classified information, and they view her speech as anti-American.
A status report from January 8 indicated “numerous pretrial matters” made it nearly impossible for the government and defense to maintain the previously agreed upon timeline for the case. Winner’s trial, which was scheduled for March, will definitely be rescheduled.
UPDATE – 11:30 PM ET: The story was updated to include a statement from Reality Winner’s mother and to reflect Friends of Reality Winner’s response to the development.