July 21 2017, 2:03 p.m.
THE JUSTICE DEPARTMENT is
seeking to impose extreme secrecy rules in the trial of alleged Intercept
source and whistleblower Reality Winner that could prevent her defense team
from citing countless publicly available news articles in appearances before
the court — and even prevent Winner herself from seeing evidence relevant to
her defense.
On July 20,
Winner’s defense lawyers moved to challenge those arguments, accusing the
government in a court filing of attempting to use the pre-trial discovery
process to unfairly gag them from discussing issues both vital to the case and
the public at large.
Winner was
accused last month of leaking a classified National Security Agency document to
The Intercept that describes attempts by alleged Russian hackers to gain access
to election infrastructure in the United States. She faces charges under the
Espionage Act, a 100-year-old law meant for spies and saboteurs, which the
government has warped into an anti-leaking statute
used to go after sources of journalists attempting to inform the American
public. Winner’s trial is set for the end of October.
Under the rules
established under the Classified Information Procedures Act, the defense has
the right to access certain classified documents from the government that may
be relevant to Winner’s case. In response, the government filed for a protective order that
will prevent the defense team from revealing the classified information in
those documents in its legal filings or to the public.
A protective
order surrounding discovery material, by itself, is fairly standard procedure.
However, the government is going a step further: They are arguing that the
defense would be barred from discussing any information that has appeared in
the Washington Post, the New York Times, or any other newspaper if the defense
“knows or have reason to know” any of that information is also contained
in classified discovery documents they will receive.
The protective
order would restrict “our right to cite and quote information in the public
domain, such as articles in newspapers, broadcast journalism and online
publications,” the defense wrote in their brief. “The order 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 officer before repeating or citing these facts even
though the information is clearly in the public domain.”
Essentially, the
government is trying to bar Winner’s lawyers from discussing large swaths of
journalism done around the election, cybersecurity, the Trump administration,
and Russia in court, unless each time, they go back and scour thousands of
pages of documents to make sure none of their references are also cited in the
documents that were handed over.
This is a
critical point given that the trial may hinge on whether the prosecution can
prove the document Winner is alleged to have leaked could have “damaged”
national security. Winner’s team may want to use these stories to provide the
jury with much-needed context around the document at issue — to show, for
example, that the public interest in election security is extremely high, or
that leaking the material in question couldn’t possibly have damaged national
security given the mountains of stories about Russian hacking that came before
it.
Think about it:
Literally everyone in the country has been talking about alleged Russian
attempts to influence the 2016 presidential election. It has not only been the
subject of front page stories in the nation’s leading newspapers on an almost
daily basis, but it has been publicly discussed by virtually every member of
Congress, all the intelligence chiefs, and Presidents Obama and Trump. Yet much
of this discussion could be barred from the public courtroom if the government
has its way.
What’s more, the
government argues that Winner herself isn’t allowed to see any of the
classified documents handed over to her lawyers at all. As the defense writes
in their brief: “The Sixth Amendment right to counsel includes the right to
confer with counsel.” What the government is essentially doing here is cutting
Winner out from her own defense team, which may have to make key arguments in
the case without being able to consult with her about the relevant facts. As
her lawyers make clear, “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 flow from her being allowed to view the evidence that may be used
against her.”
These tactics
are likely just the beginning of the government’s attempts to cut off virtually
every avenue of defense for Reality Winner. The Justice Department has been
cruelly effective in all of the Espionage Act cases aimed at the sources of
journalists in recent memory.
Since Pentagon
Papers whistleblower Daniel Ellsberg’s days, sources charged under the
Espionage Act have been prohibited from explaining their motive to
their jury — e.g., informing the public — for leaking information to
journalists. Or take the example of Thomas Drake, the NSA executive who was
indicted for allegedly giving information on NSA waste, fraud, and abuse to the
Baltimore Sun in the mid-2000s. The Justice Department filed briefs in his case
demanding that Drake not even be allowed to say the word “whistleblowing” or make any arguments related
to the government’s rampant overclassification epidemic in front of
the jury. In other cases, prosecutors have convinced judges they don’t have to
show actual harm to national security, only the potential for
such harm — a much lower bar.
Time will tell
exactly what Winner will and won’t be able to tell her jury. But whatever one’s
views on Russia’s influence on the 2016 election, everyone can agree that the
American public has a strong interest in seeing the evidence the U.S.
government has on Russian hacking, and that the woman accused of leaking
material on the subject should not be muzzled from using information already in
the public domain to defend herself.
Trevor Timm is the executive director
of Freedom of
the Press Foundation. He is also the co-founder of the Stand With
Reality campaign, which is raising money for Winner’s legal defense
and awareness about the Espionage Act’s use against the sources of journalists.
First Look Media, The Intercept’s parent company, has provided legal support for Winner’s defense
through the Press Freedom Defense Fund, and contributed $50,000 in matching
funds to the Stand With Reality campaign. You can donate
to the campaign here.
Donations can be sent
to the Baltimore Nonviolence Center, 325 E. 25th St., Baltimore, MD
21218. Ph: 410-323-1607; Email: mobuszewski2001 [at] comcast.net. Go to http://baltimorenonviolencecenter.blogspot.com/
"The master class
has always declared the wars; the subject class has always fought the battles.
The master class has had all to gain and nothing to lose, while the subject
class has had nothing to gain and everything to lose--especially their
lives." Eugene Victor Debs
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