What should we call Reality Winner, the 25-year-old low-level employee for a government contractor who allegedly mailed secret intelligence files to a news organization? To federal prosecutors, she’s a criminal leaker, while others, like WikiLeaks founder Julian Assange, have lionized her as a whistleblower in need of support.
What’s the difference?
The answer isn’t cut and dry, yet it carries huge legal consequence. Federal laws protect whistleblowers who provide evidence of government wrongdoing. But they must share the sensitive information through specific official channels to avoid arrest or reprisals at work.
Leakers, on the other hand, can become targets for prosecution for mishandling classified information. Not all leak are crimes, however. Sharing unclassified materials — such as former FBI Director James Comey did with some of his memos about his private conversations with President Donald Trump — is not illegal, experts say.
Reality Winner is a leaker, according to the U.S. Attorney’s Office in Southern Georgia. They’ve charged her with violating the World War I-era Espionage Act for “removing classified material from a government facility and mailing it to a news outlet.” The document in question was an National Security Agency memo about attempted Russian hacking into voter registration systems last year that The Intercept covered in an article Monday. She faces 10 years in prison if convicted.
Appearing in federal court for the first time Thursday in Augusta, Georgia, Winner pleaded not guilty, though she allegedly admitted to the FBI that she printed and mailed the classified memo at an NSA facility. Authorities had granted Winner, a former Air Force linguist, a top-secret security clearance in February for her job with Pluribus International Corp.
At this point, Winner’s motive is unknown. Regardless, she appears to have acted hastily, according to experts.
“She committed the most fundamental mistake for blowing the whistle, which is not learning your legal rights first,” said National Whistleblower Center Executive Director Stephen Kohn, referring to Winner. “There are ways that you can bring information public that are legal and protect you, and there are ways that will bring you down.”
Would-be government whistleblowers have have several options for raising their concerns. They can bring evidence to their department’s inspector general, members of Congress and federal prosecutors. Another route involves asking officials permission to publish the scandalous information and filing a lawsuit if the request gets denied.
The term whistleblower implies that the source of the information has good intentions for uncovering fraud, waste or corruption. There has to be some public value to sharing the informant’s evidence to trigger whistleblowing protections. They’re not meant for airing personal grievances about a coworker, for instance.
An example of a true whistleblower in the legal sense of the word is Army Spc. Joseph Darby, who helped pull the curtain back on prisoner abuse in Abu Ghraib, an Army detention site in Iraq. In 2004, Darby provided supervisors with a CD showing naked, hooded prisoners being humiliated and tortured. The Army launched an investigation immediately. Three months later, “60 Minutes” broadcast images of the abuse. Darby wasn’t arrested, but he’s been ostracized by members of the military and his family who have labeled him a traitor.
There’s ample reason for potential whistleblowers to be skeptical of the official channels for reporting misconduct, according to Melvin Goodman, a former CIA and State Department analyst and author of Whistleblower at the CIA.
Intelligence agency workers have grounds to worry about their anonymity being protected after opening a complaint with an inspector general, he said. And going to Congress doesn’t guarantee members will dig into the issue either. Daniel Ellsberg first gave copies of the Pentagon Papers, classified reports showing the futility of Vietnam War, to members of Congress in 1969 more than a year and half before he released portions of them to the New York Times.
It’s unclear what Winner sought to achieve by releasing the Russian hacking memo, since allegations of Kremlin interference in the election last year are well-known and already under investigation, said Goodman. Still, going to the press may often be the best option for government employees who want a problem to receive attention.
“This is what whistleblowing is all about — going to the public arena to talk about wrongdoing,” said Goodman. “There aren’t a lot of avenues other than the media. The so-called guardrails of democracy are broken.”
Leakers, too, often say they too were motivated to expose a wrong, such as Chelsea Manning, a former Army intelligence analyst who was released from prison last month. Manning had grown alarmed by the direction of the wars in Afghanistan and Iraq when she gave a trove of military documents to WikiLeaks; she was arrested and charged with violating the same law as Winner in 2010.
Winner already has some high-profile fans. Julian Assange, the WikiLeaks founder, said Winner “must be supported.” Talk show host and frequent Trump critic Rosie O’Donnell donated money to her legal defense.
It’s easier than ever for prosecutors to go after leakers. Computer records show which files employees access and whom they emailed or called. The Obama administration used the Espionage Act to target leakers more than all previous presidents combined.
In Winner’s case, officials claim to know that she had printed the NSA memo and also sent an email to The Intercept.
If Winner acknowledges being the source, her intentions will do her no good in court, no matter how noble she may consider them, according to attorney Edward McMahon, who represented a CIA officer convicted in 2015 of leaking to the New York Times details about the agency’s attempts to interfere with Iran’s nuclear program.
“As a lawyer, the ‘golden motives’ don’t matter,” he said.
To win a conviction, prosecutors must prove that the information Winner divulged was closely held, pertains to the national defense and was given to someone unauthorized to receive it.
A defense attorney would probably craft an argument that the NSA memo at the heart of Winner’s case is not vital to national security.
“Not every government secret is national defense information,” said McMahon.
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