U.S. Justice Department lawyers prosecuting former NSA contractor Reality Winner over alleged leaks of classified information regarding Russia’s alleged interference in the 2016 presidential election are arguing her defense team should not be allowed to discuss any classified information, even if it was in news reports.
In a motion filed Tuesday, federal prosecutors said they had reached an impasse with Winner’s defense team and asked the court to resolve the question in the government’s favor.
In June, the government sent to Winner’s counsel a proposed protective order that would bar the unauthorized use, disclosure or dissemination of any classified information provided to members of Winner’s defense team who obtain security clearances. Classified information would include any information designated “confidential,’ “secret,” “top secret” or “sensitive compartmented information.”
But it would also include “any document or information … now or formerly in the possession of a private party, which has been derived from a United States Government classified document, information, or material.” The proposed order would also include information secured from a foreign government or from any member of the U.S. intelligence community that “could reasonably be believed to contain classified information.”
A separate proposed Memorandum of Understanding would “remain forever binding” on signators to “never divulge, publish, or reveal” designated classified materials unless specifically authorized in writing to do so by the government.
Winner, 25, a U.S. Air Force veteran, has been charged with leaking classified information about Russia’s alleged efforts to interfere with the election to an online news outlet believed to be The Intercept. At the time, Winner was employed by NSA contractor Pluribus International Corp. in Augusta. According to an FBI affidavit that is part of the court record, the news outlet subsequently provided a copy of the information to a government agency, which tracked the leak back to Winner.
Federal prosecutors said in their motion that Winner’s defense team wanted to include language in the government’s proposed protective order that “information drawn from unclassified sources does not become classified information because similar information also happens to appear in classified documents.”
Prosecutors suggested that defense lawyers were seeking to ensure that they would not be held criminally liable “for repeating information that they had learned through public sources without ever knowing that the information was classified.”
But prosecutors said they repeatedly have rejected the proposal which they claim “would essentially redefine or render ambiguous what constitutes classified information.”
They also contended that the proposed exemption “would exclude from the definition of classified information [any] information that appears in the news media”—materials that defense lawyers have said are unclassified sources. The Daily Report has contacted Winner’s defense attorneys, John Bell and Titus Nichols of Augusta’s Bell& Brigham but has not yet received a response.
Prosecutors—citing an executive order governing classified national security information signed by President Barack Obama on Dec. 29, 2009—insist that “classified information that is reported in the news media remains classified unless and until it is declassified by the appropriate executive branch authority.”
Prosecutors also referenced previous protective orders governing classified information signed by federal judges in Virginia and Pennsylvania in arguing that the court,in Winner’s case, “should not countenance any request to treat information as unclassified because it has appeared in the news media.”
To address defense counsel’s concerns that they might unknowingly violate the court protective order by repeating information learned from the news media, prosecutors said they would agree that a protective order would not be breached if anyone disclosing information obtained from unclassified sources “did not know, and reasonably should not have known based on information provided by the government in this case, is classified.” But the proposed order would also require that anyone intending to disclose information that he or she was not certain was classified should first consult with one of several federal Classified Information Security officers the government has assigned to the case.