In October, accused NSA whistleblower Reality Winner was denied bail on highly politicized grounds that cast doubt on Judge Brian Epps’ ability to hear her case in an impartial manner. A panel of appeal judges has now upheld Judge Epps’ ruling, meaning Reality will remain detained until her trial, which is currently scheduled for next month.
Reality Winner, an NSA contractor who was arrested in June 2017, is facing an Espionage Act charge for allegedly passing classified material to media outlet The Intercept. The documents in question summarise the NSA’s view at the time of evidence suggesting Russia’s military intelligence attempted to interfere in the 2016 US presidential election.
In its ruling affirming Reality’s pretrial detention, the appeals court claimed Reality could be considered a “flight risk” despite her agreeing to wear an electronic-monitoring ankle bracelet, having forfeited her passport, and her parents’ posting of their house as collateral. Disturbingly, the court cited Reality’s statements of support for Julian Assange and Edward Snowden as evidence against her.
The bail decision is one of a series of court orders that raises real concerns about the way the case against Reality is being conducted. Espionage Act cases, carrying the prospect of a ten-year prison sentence, are always difficult for alleged whistleblowers, who are not allowed to bring the public interest in disclosing information to the court’s attention. Nevertheless, as advocates for Reality have argued, her pre-trial detention – and the way it was couched – mark a significant departure from the usual practice for civilian defendants.
Equally worrying is the way Reality’s defence team has been hampered by secrecy restrictions proposed by the prosecution and accepted by the court. In a motion late last year, Reality’s defence argued that the government’s restrictions unconstitutionally impeded the defence’s “ability to gather evidence and prepare its case.” The judge ruled to prevent the defence from showing that the information Reality is said to have disclosed was already in the public domain, and therefore not a “closely held” secret of the United States.
Reality will have to wait for trial in prison, in a system that has tortured and retaliated against truthtellers particularly, for at least another month. Her mother, Billie J.Winner-Davis, responded to the latest ruling: “Denial of bail. They have pretty much convicted her without trial. What other constitutional rights will they violate?”