Is the Proposed Sentence for NSA Whistleblower Reality Winner Too Harsh?
By Ben Kostyack on
Posted in Intelligence Community Whistleblowers
On June 26th, National Security Agency (NSA) whistleblower Reality Winner pleaded guilty in federal court, agreeing to 63 months in prison in plea agreement for a single charge of espionage. Winner’s case has made national headlines throughout the past year after she was arrested in June 2017 for leaking NSA documents regarding a Russian hack in the 2016 election to a news outlet. Ms. Winner was arrested under the Espionage Act, a federal law that was created for spies, not whistleblowers.
Ms. Winner, 26, was the first person to be accused of leaking classified information by the Trump administration. Ms. Winner, who is also a decorated Air Force veteran, has served over a year in jail in Lincoln County, Georgia, under harsh conditions.
Several celebrities have taken to Twitter, including comedian and actress Rossie O’Donnell (@Rosie), CNN anchor Jake Tapper (@jaketapper) and actor John Cusack (@johncusack), to show support for Winner.
On July 24th, Will Bunch, a national columnist for the Philadelphia Inquirer, noted that Winner “warned America that Russia hacked our voting rolls,” and asked, “why is she in jail?”
The Espionage Act makes it a felony to disclose, to someone not authorized to receive it, information related to the national defense that could be used to harm the United States or aid a foreign adversary. It also does not make a distinction between civil-minded whistleblowing and the release of damaging documents for an exchange of cash. It was originally introduced to deal with spying against the United States in World War I by President Woodrow Wilson, but is now used as an overreach by the government in whistleblower cases like Ms. Winner’s.
The Obama administration charged whistleblowers under the Espionage Act about twice as much as all previous Presidents combined. With the Espionage Act, the government can take advantage of whistleblowers without giving them the chance to defend their actions and prove they were trying to serve the public interest. Although there are plenty of other regulations or laws that could have been used to punish Ms. Winner, the Espionage Act is the most severe and is being used by the Trump administration as such. Espionage Act charges carry a sentence of up to 10 years in prison. Ms. Winner was legally barred from explaining her motive to release the document to defend herself at a trial and the court imposed a gag order on Winner and her attorneys. She likely will remain silent about her motives for leaking until she is sentenced, most likely in the Fall.
A prison sentence of 63 months (i.e., more than 5 years) for Ms. Winner would be one of the longest sentences ever imposed for leaking classified information. It should also be noted that Ms. Winner has already been held in jail without bail under restrictive and difficult conditions for more than a year.
With the exception of Chelsea Manning, who received a sentence of 35 years in prison, but who ended up serving 7 years in a military prison, for leaking the largest cache of classified documents in U.S. history, most persons prosecuted for leaking classified information have received prison sentences between probation (i.e., no jail time) up to 3 ½ years in prison.
Ms. Winner’s proposed sentence for her leaking one document to the Intercept about the Russian hack of the elections is particularly harsh when compared with other similar cases.
- In 2015, former CIA officer Jeffrey Sterling was found guilty on nine criminal counts by a jury and later sentenced to 3 ½ years for leaking classified information to the N.Y. Times.
- NSA whistleblower Thomas Drake was also charged with Espionage Act violations for allegedly passing classified information to a reporter, but those charges could not be proven. Drake eventually pleaded guilty to a single count of exceeding unauthorized use of a protected computer and was sentenced to a year of probation and 240 hours of community service.
- Stephen Jin-Woo Kim, a former State Department arms expert, was sentenced to 13 months in prison after pleading guilty to sharing classified information and an intelligence report on North Korea with a Fox News reporter.
- Former CIA Officer John Kiriakou pleaded guilty to disclosing the identity of an undercover CIA operative and was sentenced to 30 months in prison. Kiriakou had also blown the whistle on the CIA’s use of waterboarding and other controversial “enhanced” interrogation methods.
- Former CIA Director and retired general David Petraeus pleaded guilty to sharing classified material with his mistress, which included the disclosure of code words for secret intelligence programs, identities of covert officers and war strategy, but Petraeus was allowed to plead guilty to a lesser misdemeanor charge of mishandling classified information. The court sentenced Petraeus to two years of probation and a $100,000 fine.
Reality Winner’s friends and family have an online support site, https://standwithreality.org, if you want to find out more information about her case and how to support her.
It is extremely important for national security whistleblowers to understand the lawful means by which they can blow the whistle. Information on this is available in The New Whistleblower’s Handbook (Lyons Press, 2017), Rule 14. Valuable advice is also provided by Stephen M. Kohn, executive director of the National Whistleblower Center, in the Washington Post video: Here’s how the Constitution protects leakers and whistleblowers and Dan Meyer Former Whistleblowing & Transparency Director Defense Department Inspector General’s Office in his 2018 National Whistleblower Day remarks.
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