14:18, July 25 332 0 law.com

2017-07-25 14:18:05
Reality Winner's Prosecutors Insist News Reports Citing Classified Info Are Top Secret
Reality Winner.

Federal lawyers prosecuting accused government leaker Reality Winner are doubling down in a dispute with Winner’s defense team over what should be treated as classified information. They insist that news reports and other public sources citing classified material must be filed under seal and shared only with those who have top security clearances.

Prosecutors contended in court papers filed Monday in federal court in Augusta, Georgia, that if, during the course of Winner’s prosecution, her defense team is given access to classified materials by the government that also have been the subject of published news reports or broadcasts, the defense “must protect the classified information.”

Possession of a security clearance, prosecutors added, “imposes restrictions on what an individual can disclose, including repetition or confirmation of classified information known to that individual that, due to unauthorized disclosure, has appeared in the public domain.”

The battle over whether defense lawyers may rely on or refer to news media accounts and other publicly available materials in defending Winner goes to the heart of the case against the 25-year-old former U.S. Air Force veteran and National Security Agency contractor. While prosecuting Winner, prosecutors have said they want to limit to people with security clearances the release or discussion of classified materials and anything else that “could reasonably be believed to contain classified information.”

Winner is accused of leaking a top secret document to online news outlet The Intercept earlier this summer. That document, which The Intercept has said it obtained anonymously, served as the basis for a news story revealing specific details of alleged cyberattacks by Russian military intelligence apparently intended to compromise voting systems across the U.S. in the run-up to the 2016 presidential election.

The document, a redacted version of which The Intercept also published on its website, states that no information contained in it nor derived from it may be used in any criminal or civil proceeding without advance approval of the U.S. attorney general or the federal agency that originated it.

Winner’s lawyers have vigorously protested what they say are prosecutors’ heavy-handed efforts to cast a broad secrecy blanket over the proceedings that could hobble Winner’s ability to defend herself. The federal espionage statute under which she has been charged is intended to prevent military secrets from being stolen and then handed to enemies of the U.S., her lawyers have contended. But they said in court papers filed last week, “Whether information about these Russian efforts falls within the scope of information about the secret activities of our Army and Navy that the Espionage Act was enacted to protect is doubtful.”

Prosecutors contend that defense lawyers would not violate security protocols if they did not know, and reasonably should not have known, that publicly available materials contained classified information. But they also insist there have been no authorized disclosures of the classified information the government intends to use in prosecuting Winner.

“The defense appears to view this as some type of trap and has offered a variety of scenarios under which the proposed protective order could be violated by an unknowing disclosure of classified information that has appeared in the news media,” prosecutors said. They dismissed those concerns as “unfounded.”

On Monday, prosecutors also rejected defense lawyers’ assertions that Winner must be allowed to review—and discuss with her counsel—any classified information prosecutors intend to use in seeking her conviction.

Winner’s lawyers argued in court papers filed last week that to bar Winner, who had a top security clearance before her arrest last month, from viewing any evidence the government has labeled as classified but intends to use in prosecuting her would violate her constitutional right to confer with counsel.

Prosecutors have countered that evidence they intend to rely to convict Winner could include classified information to which she has not previously had access. “Given the charge against the defendant, disclosing that information to her could further jeopardize national security,” they said.

“In this case, the defendant is charged with abusing her access to classified information and transmitting it to an unauthorized recipient. It is therefore entirely appropriate to deny her access to additional classified information. Moreover, there is no promise she could make to protect classified information that she has not already broken.”

Federal prosecutors also repeated their insistence that they be given advance notice of the identities of all experts, including those with government security clearances, with whom the defense intends to share classified materials, claiming they have “a security-based need to know,” even if it might reveal aspects of the defense strategy earlier than in an ordinary case. “The particular security considerations specific to classified information,” they said, “justify this modification to standard procedure.”